DC v. Heller--on ban of handguns in WA DC. Overturned by the Court 5-4.

I called this a "really big case" in my summary of it, and I still think it is. In addition, I thought that the Supreme Court would affirm the DC Circuit Court of Appeals and hold that the Second Amendment protected an individual right to possess a firearm for self-defense in his/her home. Indeed, the Supreme Court agreed. In a 5-4 decision (opinion by Scalia, dissent by the Stevens), the Four Conservatives along with Kennedy (after all, on 5-4 decisions, this is primarily Justice Kennedy's Court) held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. This essay will lay out the three major points of the opinion, quoting from the Syllabus of the Court's decision.

First, the Facts

First, however, you should know some facts of the case, relating to the District of Columbia's strict ban on the private ownership of firearms within the District.

"District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right."

Poin One--The Historical/Textual Argument

Since Justice Scalia is an avowed textualist, it is not unexpected that he spends a lot of time on textual and historical material to understand the Second Amendment. In holding that the Second Amendment doesn't prohibit private ownership/possession of firearms, the Court had to interpret the language of the 2nd Amendment. Here is the flow of its argument:

"The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.

The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.

The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.

The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.

Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion."

The Cautionary Part of the Opinion

An important distinction should be mentioned at this point. Just because the Court says that the Second Amendment can't prohibit handgun ownership/possession, this does not mean that jurisdictions can't regulate sales and usage of handguns. So, the Court goes on to say:

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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 arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."

Thus, the Court gave a sort of "laundry list" of instances in which this right could be limited. But its list was not meant either to be exhaustive or even suggestive. It says that municipalities or other jurisdictions may place reasonable restrictions on firearm sale or possession. But, of course, a statement like this is like a 'full-employment act' for lawyers, since challenges can and will be brought as to the extent of the restrictions proposed and enacted. Yet, the case fundamentally changes the calculus on the question by placing the burden of proof on the jurisdictions if they want to limit the sale/possession of firearms.

III. Turning to the Washington DC Law

It was only after all this that the Court turned to the particulars of the DC law. Its argument was as follows:

"The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition-in the place where the importance of the lawful defense of self, family, and property is most acute-would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home."

So, the right of self-defense won in this case, and drove the interpretation of the 2nd Amendment. In another essay I gave my own interpretation of the language; I need not repeat it here. The Court has spoken--for now.

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