I have put a considerable amount of time into this, including approximately four hours writing this and another five hours before that reading the opinions and dissents. I therefore strongly encourage readers to avoid certain memes, or else face disciplinary action.
On 26 June 2008, the US Supreme Court published a decision in the case of District of Columbia, et al. v. Heller. The case was originally argued before the Court on 18 March 2008, leading to a three-month period where the case was debated internally prior to publication. The final ruling was 5-4. The majority opinion was written by Justice Scalia and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. Two dissenting opinions were filed, one written by Justice Stevens and joined by Justices Souter, Ginsburg, and Breyer, and the other written by Justice Breyer and joined by Justices Stevens, Souter, and Ginsburg.
The majority held the following points:
- "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."
- "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."
- "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."
The case sourced from a lawsuit filed by Heller, a resident of the District of Columbia and a special policeman authorized to carry a handgun while on duty. He wished to keep a handgun at home for personal protection in relation to the hazard of being a member of law enforcement, but the District refused to grant a license. As described by the majority:
These laws also made the carrying of any operable firearm in any location for any purpose illegal. Therefore, one could not legally render the firearm operable and pick it up, let alone carry it to another room. The District's laws made no exception for purpose of self-defense, though the District argued that there was an implicit right to self-defense without it being spelled out in the law. However, the only exception to requirements that lawful firearms be rendered inoperable applied to law enforcement personnel (a class to which Heller evidently did not belong, even as a special policeman). The District Court dismissed the suit, but Heller won his appeal to the DC Circuit Court, which found that the laws violated the Second Amendment right for an individual to possess a firearm and directed the District to issue the appropriate license, providing that Heller was not otherwise disqualified such as being insane or having a felony conviction. The District appealed to the Supreme Court, which found in favor of Heller.The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. ... Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. ... District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and disassembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities.
The majority sought first to gain a clear and unambiguous understanding of the meaning of the Second Amendment.
The amendment consists of two clauses: the prefatory clause ("A well regulated Militia, being necessary to the security of a free State") and the operative clause ("the right of the people to keep and bear Arms, shall not be infringed"). The Court is guided by a principle established in US v. Sprague in 1931, which said, "[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." Using this logic, the Court states that "the former does not limit the latter grammatically, but rather announces a purpose." It also finds that "a prefatory clause does not limit or expand the scope of the operative clause. In determining the meaning of the text, the majority chose to focus first on the operative clause, then come back around to the prefatory clause.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.
The majority notes that the phrase "right of the people" appears in other locations in the Constitution, specifically the First and Fourth Amendments, and a similar term, "the people," is used in the Ninth Amendment, which ensures that rights not present in the Constitution are still present. In these cases, the rights refer to individual rights, not those that must be "exercised through participation in some corporate body." For example, under the First Amendment, each person has an individual right to speak or publish words of his or her own choice, to practice a religion of his or her own choice, to assemble in public or private, and to petition the government for redress of grievances. Justice Stevens, in his dissent, notes that an assembly by definition requires more than one person, but the majority counters that the decision of whether to participate in that assembly is an individual right.
Calling upon precedent, a quotation is supplied from US v. Verdugo-Urqidez, a 1990 decision which included the following:
The Court therefore begins with "a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.""[T]he people" seems to have been a term of art employed in select parts of the Constitution. ... [Its uses] sugges[t] that "the people" ... refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
Turning to the meaning of "keep and bear arms," the Court uses several dictionary entries to define what is constituted by the word arms, and finds that it includes firearms as well as other weapons (which the language of the day separated from firearms), and that it included weapons that "were not specifically designed for military use and were not employed in a military capacity."
The Court addresses a common argument of those in favor of gun control, that the Amendment covers "only those arms in existence in the 18th century," bluntly writing that '[w]e do not interpret constitutional rights this way."
A key phrase in the Amendment, "to keep and bear arms," has been a point of contention for some time. Many, including the dissenters, believe that it means to have available and be ready to use weapons in the service of the militia. The majority looks to sources of the era, including preceding sources covering English law such as an instance where Catholics who did not attend Church of England services were not permitted "to keep arms in their houses." If the keeping of arms is a militia duty and would be required only to maintain the militia, it would seem that being "permitted" would make the keeping of arms an option and not an order. The Court concludes that the phrase "was simply a common way of referring to possessing arms, for militiamen and everyone else." (Emphasis in original.)Just as the First Amendment protects modern forms of communications, ... 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.
Turning to the word "bear," the majority believes this to refer simply to carrying. When combined with the word "arms," it refers to carrying for purposes of confrontation. Justice Ginsburg is quoted from her dissent in Muscarello v. United States, where in defining "carries a firearm" she states that "[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: 'wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'"
Justice Stevens points out in his dissent that in the dozens of citations presented to the Court, "bear arms" had a military connotation, whether against Indians, in defense of the nation, or as part of being pressed into service by the British Navy to fight against American vessels. The majority notes, however, that there are situations where the phrase is used in a non-military context, and so they cannot be excluded simply because most references were military. (In reading Justice Stevens dissent, it is clear that the very sources from which he draws his examples were military in nature, and therefore the meanings, even without referencing an opponent from another nation, are clearly referring to a military context.) A footnote is used to cover several examples where the term "bear arms" is used in reference to a non-military conduct, including prohibiting persons from "bear[ing] any Arms within London, and the Suburbs," according to a 1704 proclamation. It would be a curious situation that England, either in tension or at war with so many other nations, would prohibit all weapons from London, as this would make an assassin's job much easier. The majority writes, "[T]he fact that the phrase was commonly used in a particular context does not show that it is limited to that context..."
Having settled on appropriate definitions for the components of key words and phrases, the Court turns its attention to the operative clause itself, finding that when combined these key words and phrases "they guarantee the individual right to possess and carry weapons in case of confrontation" and that "the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right." (Emphasis in original.) The majority points to the abuses of Kings Charles II and James II, the Stuart monarchs who used select militias to disarm portions of the populace to prevent challenges to their power. Upon the ascendancy of King William III and Queen Mary II, the people in 1689 obtained assurances "[t]hat the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law," a promise that, considering it was to defend against the abuses of both a standing army and the presence of select militias, clearly had nothing to do with militia service itself. This right became entrenched in English legal culture, and extended across to the colonies, forming the basis for the Second Amendment.
The majority is careful to not provide for unlimited access.
(Emphasis in original.)There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not ... . Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
Having clarified the operative clause, the Court sought to determine whether the prefatory clause modified it at all. Examining the phrase "well regulated Militia," the majority noted that the militia consists essentially of all males physically capable of bearing arms while acting in the common defense (paraphrased from two similar descriptions). The dissent takes the view that militias are only those military forces described in Article 1, Section 8, Clauses 15-16, and regulated by the states and by Congress. However, this view suggests that the militia exists only when the state or Congress decides that they exist. While Clauses 12-13 provide Congress the power to raise an army and to provide a navy (and implicitly the power to do away with either or both), Congress is not provided a power to raise, provide, or create a militia, but rather to call forth the militia. This clearly means that the militia is presumed to already exist, and that Congress can neither create nor remove the militia. The calling forth of the militia also need not be done in its entirety, as the Congress would call on a portion of the militia sufficient to achieve its aims, leaving the remaining militia in reserve, subject to being called but in the meantime remaining in their civilian roles. Upon the need for the active militia ending, the components of the militia -- the people -- return to their civilian roles and continue their lives. The need for the militia ends, but the militia itself remains.
An additional phrase in the prefatory clause, "security of a free State," has been argued to refer to the component entities of the United States of America. However, the word "state," with or without a leading capital, has two meanings within the Constitution. As used to refer to the components of the country, it refers essentially to those admitted to statehood and thus partaking directly in the national government. However, in Articles I and III, the term "foreign States" appears, referencing entities outside of the United States, and adding an additional meaning of a political body under a single government (which applies to constituent members of the United States as well in a somewhat more abstract form). Therefore, as the United States may be seen as a political body under a single government, the "security of a free State" would refer to the ability of the people to repel invasion, suppress insurrection, and resist tyranny.
Coming back to examine the relationship between the two clauses, the Court notes the following:
It notes later that in the considerable debate over the rights and protections afforded to the people and the states during and after the adoption of the Constitution,The debate with respect to the right to keep and bear arms ... was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. ... Federalists [argued] that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. ... [T]he threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.
The majority goes on to quote St. George Tucker's commentary on the Constitution in his version of Blackstone's Commentaries:[t]he Federalist-dominated first Congress chose to reject virtually all major structural revisions favored by the Antifederalists, including the proposed militia amendments. Rather, it adopted primarily the popular and uncontroversial (though, in the Federalists' view, unnecessary) individual-rights amendments.
The court further quotes Joel Tiffany, an antislavery activist who sought to ensure that all free men had measures for self-defense:This may be considered as the true palladium of liberty. ... The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.
The Court is, as mentioned above, mindful of reasonable limitations on the possession and use of firearms allowed under the Second Amendment. Quoting an 1829 decision by the Supreme Court of Michigan (then a territory and hence under federal jurisdiction):[T]he right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed.
There have been mentions of the Second Amendment in various cases throughout the years, most notably the case of US v. Miller, which centered around a conviction of two men for carrying a sawed-off shotgun across state lines in violation of federal law. A curious aspect of that case is that only the federal government submitted written arguments or even showed up for oral arguments, and so stood completely unopposed. Here, the Court establishes that "Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons." As Miller allows for "arms supplied by themselves and in common use at the time," the Court goes on to "read Miller to say 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" and "dangerous and unusual weapons." And in case they had not yet made it perfectly clear, the majority includes the following blunt statement:The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.
An additional common point for those opposed to the individual rights view is that technology has made the use of personal firearms in war outmoded, and that a group of randomly-armed citizens is no match for a professional military body armed with "modern-day bombers and tanks" (ignoring the effectiveness of militias using small arms in conflicts around the world). The Court recognizes this incongruity, but declines to force modern practical military reality against a constitutional right.Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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 arms.
Having established that the Second Amendment provides, with certain limited exceptions, an individual right to own and carry firearms, the Court turns its attention to the DC law that led to the case to begin with. They find that any ban from the home of handguns, which are by far the most popular firearm class in the United States, would be unconstitutional. Even when other firearms (such as rifles and shotguns) are allowed, the ban would fail to pass constitutional review, and the Court cites several reasons that handguns may be chosen for home defense, including ease of storage in a location accessible in an emergency; that it cannot be as easily wrestled away by an intruder; that it is easier for those of lesser upper-body strength to use than many long arms; and that it can be pointed at an intruder with one hand while the other dials the police. "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid." The Court also finds that a requirement to render and keep inoperable at all times all lawfully-owned firearms prevents their use for the core purpose of lawful self-defense, and therefore is unconstitutional.[T]he fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
The majority opinion begins to wrap everything up after its lengthy inspection of the issues at hand with, among others, the following words:
Finally, the majority addresses the concerns over extraordinarily high gun violence in the District of Columbia, levels which are legendary for their violence, at times leading the country in the overall murder rate.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. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. ... The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people.... And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
I apologize for the length of this, but there are a great many points to this debate that have circulated for a long time, and I wanted to ensure their coverage. I have tried to keep this on the point of what was presented by the majority, and I invite others, if they wish, to expound on the dissents of Justices Stevens and Breyer. This is clearly, based on the texts of the majority and the dissents, a very polarizing issue even within the Supreme Court, and there were numerous verbal jousts both subtle and blatant, including the description of one of the dissenters' grammatical arguments as "grotesque." I hope that discussion here can be kept at least as civil.We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns.... But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
