Criminal justice

2/1/2021 2021SP1-CRJS-1005-01: District of Columbia v. Heller

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Dick Anthony Heller, 65, right, gives a "thumbs-up" as he stands with Robert A.

Levy, left, from the Cato Institute, outside the Supreme Court in Washington,

Tuesday, March 18, 2008, after the court heard arguments in an attempt to

overturn the District of Columbia's firearms ban. (AP Photo/Pablo Martinez

Monsivais)

District of Columbia v. Heller

On June 26, 2008, the Supreme Court of the United States issued its first comprehensive analysis of the Second Amendment in District of Columbia v. Heller, 554 U.S.570 (2008). The vote was 5-4. Read the following brief of the case. The full opinion is also available from supremecourt.gov.

Justice Scalia delivered the opinion of the Court:

FACTS: The District of Columbia Council passed a law generally prohibiting handguns. Other firearms must be registered, and those guns must be unloaded, disassembled or bound by a trigger lock unless located in a place of business or used for lawful recreational purposes. Heller challenged the city's denial of a license for a handgun that he wished to keep in his home.

ISSUE: Does a complete ban on handguns violate the Second Amendment: "A well- regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"?

REASONING: Nowhere in the Constitution does a right conferred upon "the people" refer to anything other than an individual right. A militia in Colonial America consisted of male, able-bodied citizens between the ages of 18 and 45.

We presume, therefore, that the right referred to is an individual one that can be exercised by all Americans. The Court pointed to extensive writings at the time and since the Amendment's passage that indicate that "arms" meant weapons, including those not designed for military

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use. "Keep" arms means possess weapons for the militia and any other lawful reason. "Bear" means to carry for the purpose of conflict with another person or people -- not necessarily in a military organization. It also meant to bear arms as a soldier but only when used in the context of "bear arms against" a particular target. Together, the language of the Second Amendment guarantees an individual the right to possess and carry weapons in case of a confrontation. A militia in Colonial America was comprised of all men physically able to defend the State. It was assumed to be already in existence. It was not something created by the government, such as the Army and the Navy. The security of the state allowed, among other things, defense of the country against government tyranny. The Founders recognized that the chief means that government tyrants would have to oppress the people would be to take away their guns. "It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down." (Slip Op. at 26). The only sensible interpretation, then, is that the introductory clause regarding the militia announces the purpose for which the individual right was codified: to prevent elimination of the militia. The right is not unlimited, like most in the Constitution. Nothing in this opinion should be construed to invalidate longstanding prohibitions on possession of firearms by felons or the mentally ill or laws prohibiting guns in schools and government buildings or laws placing conditions and qualifications upon commercial sales or limitations on the carrying of dangerous or unusual weapons. The handgun ban in D.C. amounts to a prohibition on an entire class of firearms used for lawful purposes by the overwhelming number of Americans. It extends to the home, where the need for defense of person and property is the most acute. It "makes it impossible for citizens to use them for the core lawful purpose and is hence unconstitutional."

Justice Stevens, dissenting: "The Second Amendment was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia." It was a response to concerns about the power of the federal government to disarm state militias and create a national army. There is no evidence of an intent to protect private citizens' use of firearms. The Court has upheld previous restrictions on firearms possession on the basis that the amendment protects only state militias. The omission of any reference in the amendment's language to the use of weapons for hunting or self defense is significant. Many state constitutions at the time did grant such rights. On the other hand, the language of the Second Amendment describes a unitary right: to possess arms needed for military purposes. It noted a distinction made in colonial times between "arms" -- instruments used for war -- and "weapons" -- other instruments sometimes used for offensive purposes. "When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia." (Slip Op. at 16). In early drafts, the founders combined the amendment with a provision allowing for exemption from military service for conscientious objectors. This "unequivocally identifies the military character" of the amendment. The majority relies primarily on the English Bill of Rights and other indirect evidence. A year after the amendment was ratified, Congress enacted a law to establish uniform militias throughout the country. It required every able- bodied man 18-45 to enroll and provide himself with a good musket. This confirms the way the Founders viewed firearm ownership: a duty linked to military service.

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Justice Breyer, dissenting: The majority of the Court has not shown the D.C. regulation to be unreasonable or inappropriate. The law is consistent with the Second Amendment, even if the amendment is interpreted as protecting an individual right to self defense. It represents a permissible legal response to a serious, life-threatening problem. "...[A] legislature could reasonable conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime. the law is tailored to the urban crime problem in that it is local in scope and thus affects only a geographic area both limited in size and entirely urban; the law concerns handguns, which are specially linked to urban gun deaths and injuries, and which are the overwhelmingly favored weapon of armed criminals; and at the same time, the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time of the Second Amendment was adopted. In these circumstances, the District's law falls within the zone that the Second Amendment leaves open to regulation by legislatures." (Slip Op. at 2). I do not assume that the amendment contains "a specific untouchable right to keep guns in the house to shoot burglars." (Slip Op. at 3). In Colonial Boston, for instance, home owners could not keep loaded firearms in the home and were prevented from carrying them within the city. In New York City, laws required the storage of gunpowder in containers. Handguns are involved in a majority of firearms deaths, including suicides and accidental deaths. They are a very popular weapon among criminals, and urban criminals are more likely to use them than others. Legislatures are primarily responsible for drawing policy conclusions from statistics such as these. The D.C. Council's conclusions are supported by substantial evidence. Its law places no burden on a well-regulated militia. In fact, D.C. has no citizen militia. Its citizens may use other weapons for lawful recreational purposes or self defense. This law only makes it more difficult for them to use handguns for self defense in their homes. I see no lesser restrictions that would achieve the same purpose of protection.

In 2010, the Supreme Court reaffirmed Heller and applied its principles to the states in McDonald v. City of Chicago (561 U.S. 742).The full opinion is also available from supremecourt.gov.

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