Heller and Individual Right to Firearms

prev | next

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.

Before the Supreme Court’s decision in District of Columbia v. Heller,1 the District of Columbia had a web of regulations governing the ownership and use of firearms that, taken together, amounted to a near-total ban on operative handguns in the District. One law generally barred the registration of most handguns.2 Another law required persons with registered firearms to keep them “unloaded and either disassembled or secured by a trigger lock, gun safe, locked box, or other secure device.” 3 A third law prohibited persons within the District of Columbia from carrying (openly or concealed, in the home or elsewhere) an unlicensed firearm.4 In 2003, six D.C. residents challenged these measures as unconstitutional under the Second Amendment, arguing that the Constitution provides an individual right to keep and bear arms.5 In particular, the residents contended that the Second Amendment provides individuals a right to possess “functional firearms” that are “readily accessible to be used . . . for self-defense in the home.” 6

The challenge made its way to the Supreme Court, which, in a 5-4 decision authored by Justice Antonin Scalia, concluded that the Second Amendment provides an individual right to keep and bear arms for lawful purposes.7 The majority arrived at this conclusion after undertaking an extensive analysis of the founding-era meaning of the words in the Second Amendment’s “prefatory clause” ( “A well regulated Militia, being necessary to the security of a free State” ) and “operative clause” ( “the right of the people to keep and bear Arms shall not be infringed” ).8 Applying that interpretation to the challenged D.C. firearm laws, the Court concluded that the District’s functional ban on handgun possession in the home and the requirement that lawful firearms in the home be rendered inoperable were unconstitutional.9

The majority analyzed the Second Amendment’s two clauses and concluded that the prefatory clause announces the Amendment’s purpose.10 Furthermore, although there must be some link between the stated purpose in the prefatory clause and the command in the operative clause, the Court concluded that “the prefatory clause does not limit . . . the scope of the operative clause.” 11 Accordingly, the Court assessed the meaning of the Second Amendment’s two clauses.

Beginning with the operative clause, the Supreme Court first concluded that the phrase the “right of the people,” as used in the Bill of Rights, universally communicates an individual right, and thus the Second Amendment protects a right that is “exercised individually and belongs to all Americans.” 12 Next, the Court turned to the meaning of “to keep and bear arms.” 13 “Arms,” the Court asserted, has the same meaning now as it did during the eighteenth century: “any thing that a man wears for his defence, or takes into his hands, or use[s] in wrath to cast at or strike another,” including weapons not specifically designed for military use.14 The Court then turned to the full phrase “keep and bear arms.” To “keep arms,” as understood during the founding period, the Court maintained, was a “common way of referring to possessing arms, for militiamen and everyone else.” 15 The Court further explained that “bearing arms,” during the founding period as well as currently, means to carry weapons for the purpose of confrontation; but even so, the Court added, the phrase does not “connote[] participation in a structured military organization.” 16 Taken together, the Court concluded that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 17 The Court added that its textual analysis was supported by the Amendment’s historical background, which was relevant to its analysis because, the Court reasoned, the Second Amendment was “widely understood” to have codified a pre-existing individual right to keep and bear arms.18

Turning back to the prefatory clause, the Supreme Court majority concluded that the term “well-regulated militia” does not refer to state or congressionally regulated military forces as described in the Constitution’s Militia Clause;19 rather, the Second Amendment’s usage refers to all “able-bodied men” who are “capable of acting in concert for the common defense.” 20 The Court opined that the security of a free “state,” does not refer to the security of each of the several states, but rather the security of the country as a whole.21

Coming back to the Court’s initial declaration that the two clauses must “fit” together, the majority concluded that the two clauses fit “perfectly” in light of the historical context showing that “tyrants had eliminated a militia consisting of all the able-bodied men . . . by taking away the people’s arms.” 22 Thus, the Court announced the reason for the Second Amendment’s codification was “to prevent elimination of the militia,” which “might be necessary to oppose an oppressive military force if the constitutional order broke down.” 23 The Court clarified that the reason for codification does not define the entire scope of the right the Second Amendment guarantees.24 This is so because, the Court explained, the Second Amendment codified a pre-existing right that included using firearms for self-defense and hunting, and thus the pre-existing right also informs the meaning of the Second Amendment.25

The Supreme Court majority added that its conclusion was not foreclosed by its earlier ruling in Miller, which seemed to tie the Second Amendment right to militia use. The Supreme Court in Heller concluded that Miller addressed only the type of weapons eligible for Second Amendment protection.26 Furthermore, in the Court’s view, the fact that Miller assessed a type of unlawfully possessed weapon supported its conclusion that the Second Amendment protects an individual right, with the Court noting that “it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.” 27 Nor, the Court added, did Miller “purport to be a thorough examination of the Second Amendment,” and thus, the Court reasoned, it could not be read to mean more than “say[ing] only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” 28

After announcing that the Second Amendment protects an individual’s right to possess firearms, the Supreme Court explained that, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” 29 Nevertheless, the Court left for another day an analysis of the full scope of the Second Amendment.30 The Court did clarify, however, that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of firearms,” among other “presumptively lawful” regulations.31 As for the kind of weapons that may obtain Second Amendment protection, the Court explained that Miller limits Second Amendment coverage to weapons “in common use at the time” that the reviewing court is examining a particular firearm, which, the Court added, “is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” 32

Finally, the Supreme Court applied the Second Amendment, as newly interpreted, to the contested D.C. firearm regulations and concluded that they were unconstitutional.33 First, the Court declared that possessing weapons for self-defense is “central to the Second Amendment right,” yet D.C.'s handgun ban prohibited “an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” 34 Moreover, the handgun prohibition extended into the home, where, the Court added, “the need for defense of self, family, and property is most acute.” 35 Additionally, the requirement that firearms in the home be kept inoperable is unconstitutional because, the Court concluded, that requirement “makes it impossible for citizens to use them for the core lawful purpose of self-defense.” 36 Thus, the Court ruled that D.C.'s handgun ban could not survive under any level of scrutiny that a court typically would apply to a constitutional challenge of an enumerated right.37

Justice John Paul Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented.38 Justice Stevens did not directly quarrel with the majority’s conclusion that the Second Amendment provides an individual right, asserting that it “protects a right that can be enforced by individuals.” 39 But he disagreed with the majority’s interpretation of the scope of the right, contending that neither the text nor history of the Amendment supports “limiting any legislature’s authority to regulate private civilian uses of firearms” or “that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.” 40 Additionally, he characterized the majority’s interpretation of Miller as a “dramatic upheaval in the law.” 41 In his view, Miller interpreted the Second Amendment as “protect[ing] the right to keep and bear arms for certain military purposes” and not “curtail[ing] the Legislature’s power to regulate the nonmilitary use and ownership of weapons.” This interpretation, Justice Stevens added, “is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adaptation.” 42

Justice Stephen Breyer, joined by Justices Stevens, David Souter, and Ruth Bader Ginsburg, authored another dissent.43 Although agreeing with Justice Stevens that the Second Amendment protects only militia-related firearm uses, in his dissent he argued that the District’s laws were constitutional even under the majority’s conclusion that the Second Amendment protects firearm possession in the home for self-defense.44 He began by assessing the appropriate level of scrutiny under which Second Amendment challenges should be analyzed.45 Justice Breyer suggested an interest-balancing inquiry in which a court would evaluate “the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.” 46 In making that evaluation, Justice Breyer would have asked “how the statute seeks to further the governmental interests that it serves, how the statute burdens the interests that the Second Amendment seeks to protect, and whether there are practical less burdensome ways of furthering those interests.” 47 Applying those questions to the challenged D.C. laws, Justice Breyer concluded that (1) the laws sought to further compelling public-safety interests; (2) the D.C. restrictions minimally burdened the Second Amendment’s purpose to preserve a “well regulated Militia” and burdened “to some degree” an interest in self-defense; and (3) there were no reasonable but less restrictive alternatives to reducing the number of handguns in the District.48 Thus, in Justice Breyer’s view, the District’s gun laws were constitutional. He also anticipated that the majority’s decision would “encourage legal challenges to gun regulation throughout the Nation.” 49 The majority did not seem to voice disagreement with this prediction, but noted that “since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” 50

1: 554 U.S. 570 (2008).
2: Parker v. District of Columbia, 478 F.3d 370, 373 (D.C. Cir. 2007).
3: See id.
4: See id.
5: Parker v. District of Columbia, 311 F. Supp. 2d 103, 103–04 (D.D.C. 2004).
6: Parker, 478 F.3d at 374.
7: District of Columbia v. Heller, 554 U.S. 570, 595, 626–27 (2008).
8: Id. at 577.
9: The Court did not evaluate the challenged licensing law on that ground that the District had asserted that, “'if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,’” which the Court interpreted to mean that “he is not a felon and is not insane.” See id. at 630–31.
10: Id. at 577.
11: Id. at 577–78.
12: Id. at 579–81.
13: Id. at 581–91.
14: Id. at 581.
15: Id. at 582–83.
16: Id. at 584.
17: Id. at 592.
18: Id. at 592–95.
19: U.S. Const. art I, § 8, cl. 15 ( “The Congress shall have Power . . . to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” ).
20: Heller, 554 U.S. at 595–96.
21: Id. at 597.
22: Id. at 598.
23: Id. at 599.
24: Id.
25: Id. at 599–600.
26: Id. at 621–22.
27: Id. at 622.
28: Id. at 623–25.
29: Id. at 626.
30: Id.
31: Id. at 626–27 & n.26.
32: Id. at 627 (internal citations and quotation marks omitted); id. at 582 ( “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communication . . . and the Fourth Amendment applies to modern forms of search . . . the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” ).
33: Id. at 628–36.
34: Id. at 628.
35: Id. at 628–29.
36: Id. at 630.
37: Id. at 628–29.
38: Id. at 636–80 (Stevens, J., dissenting).
39: Id. at 636.
40: Id. at 636–37.
41: Id. at 639.
42: Id. at 637–38.
43: Id. at 681–723 (Breyer, J., dissenting).
44: Id. at 681–82.
45: Id. at 687–91.
46: Id. at 689–90. The majority explicitly rejected Justice Breyer’s suggested approach. Id. at 634 (majority op.) ( “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” ).
47: Id. at 693 (Breyer, J., dissenting).
48: Id. at 691–719.
49: Id. at 718.
50: Id. at 635 (majority op.).