District of Columbia v. Heller, 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008)

Facts—The District of Columbia banned the possession of handguns in the home and required that any other weapon be made inoperable for immediate use. The District denied Dick Heller, a special policeman authorized to carry a gun at work, a permit to register a handgun for use at home. The District Court dismissed his complaint, but the Court of Appeals for the District of Columbia held that the Second Amendment protects an individual right to possess firearms.

Questions—Does the Second Amendment protect the right of individuals to possess firearms? Has the District of Columbia ordinance denied that right?

Decisions—Yes; Yes.

Reasons—J. Scalia (5–4). The words of the Constitution, including the Second Amendment, are to be interpreted by “their normal and ordinary as distinguished from technical meaning.” The Second Amendment is divided into a prefatory clause and an operative clause. There must be a link between the two, but “apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.” The Second Amendment refers to the “right of the people”; similar clauses in the First and Fourth Amendments refer to “individual” rights. This phrase is broader than the term “militia” within the prefatory clause. The phrase to “keep and bear arms” was commonly used for possessing weapons, whether an individual was a mem- ber of the militia or not. To “bear” meant to be able to “carry.” Putting these terms together, the Amendment was designed to codify “a pre-existing right,” which grew in part from earlier English opposition to game laws that the king had used to deny weapons to those who opposed him. The right was a “natu- ral right” that encompassed that of protecting oneself against “both public and private violence.” The prefatory clause’s reference to a “well-regulated” militia, “implies nothing more than the imposition of proper discipline and training.” The “security of a free state” referred to the nation as a whole. The Second Amendment was developed in reaction to fears that the government would disarm the people. It was patterned on state provisions that were designed to protect individual rights. This interpretation was evident in post ratification commentaries by St. George Tucker, William Rawle, Joseph Story, and anti-slavery advocates. It was further confirmed by pre–Civil War case law, by post–Civil War legislation, by post–Civil War commentators, and by the Court’s own precedents. The Second Amendment was designed to protect weapons “in common use at the time.” “Like most rights, the right secured by the Second Amendment is not unlimited.” Governments could limit concealed weapons, restrict ownership by felons or the mentally ill, limit guns in “sensitive places,” qualify their commercial sale, and limit those that are particularly dangerous. Americans have overwhelmingly chosen handguns to protect themselves. Contrary to J. Stevens, the United States Supreme Court decision in United States v. Miller, 307 U.S. 174 (1939), did not examine the history of the Second Amendment. J. Breyer’s approach to balancing interests would eviscerate the Second Amendment: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” This decision cannot settle all issues relative to guns, but can invalidate the District’s complete ban on handguns.

J. Stevens, dissenting, put greater reliance on the Court’s decision in United States v. Miller. The primary purpose of the Second Amendment was to under- score the Founders’ fear of standing armies. The amendment makes no mention of hunting or self-defense. “The preamble [of the amendment] thus both sets forth the object of the Amendment and informs the meaning of the remainder of the text” and is not “mere surplusage.” The term “bear arms” was an idiom designed to refer to those who served in militias. “To keep” arms further described “the requirement that militia members store their arms at their homes, ready to be used for service when necessary.” “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.” The Second Amendment was designed to prevent Congress from disarming state militias. Stevens proceeded to dispute each of the precedents that Scalia had cited. He did not think the American Framers had the same concerns as those that motivated the 1689 English Bill of Rights; he thought the reliance on Blackstone was misplaced. He disputed the post-enactment commentary, the post–Civil War legislative history, and judicial precedents.

J. Breyer’s dissent argued that the Second Amendment was designed to protect “militia-related, not self-defense-related, interests.” He also thought that “the District’s regulations, which focused upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem.” He proposed that the Court adopt “an interest-balancing inquiry,” which would in this case defer to the District judgment that restricting hand-gun possession was a way of combating gunrelated deaths. Breyer also disputed the majority’s interpretation limiting the scope of the amendment to those “typically possessed by law-abiding citizens for lawful purposes,” as well as its list of exceptions that governments could impose. He regarded the District’s measure as “a proportionate, not a disproportionate, response to the compelling concerns that led the District to adopt it.

Note—Because it dealt with the District of Columbia, this case did not address whether the right to bear arms was protected by the due process clause of the Fourteenth Amendment against state denial.