DC v. Heller
“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.”
Heller is a security guard at the Federal Judicial Center. He’s licensed to carry a handgun at work. He applied for a permit to take it home, and it was rejected.
DC law has several provisions. You’re not allowed to carry an unregistered handgun, and the law prohibits registration of handguns. You’re also not allowed to carry any guns without a license, and the chief of police can issue licenses. You can own longguns (like shotguns and rifles) and keep them in your home, but you must keep them unloaded and dissembled, or bound by a trigger lock. There’s no exception in the statute allowing you to take the lock off or load it if you want to use it to protect yourself, but the DC government says they wouldn’t prosecute you.
Justice Scalia wrote the majority opinion for 5 Justices: himself, Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito.
The opinion is 64 pages long and spends 56 pages interpreting the amendment before addressing the DC law. The first half of the Second Amendment is read as a preface: it states a purpose but doesn’t limit the amendment’s meaning. This part of the opinion has little support other than saying that this type of construction is common in founding-era documents, and Justice Scalia cites a law review article rather than specific examples. Turning to the “Operative Clause,” Justice Scalia rights that “the people” refers to the normal people: the same ones protected in the 1st, 4th, 9th, 10th, and other amendments.
Justice Scalia reads the 2nd Amendment as protecting two rights: the right to keep arms, and the right to bear arms. He argues that the phrase “to keep and bear arms” was not in common usage, so there is no reason to interpret it as a unitary right. He then turns to historical analysis, finding little support for the proposition that “keep arms” and “bear arms” were only used in military contexts. Therefore, it must be read to mean that average people can possess (”keep”) and carry (”bear”) weapons (”arms”). Further, there was a right in England for Englishmen to be armed (enacted after the Stuart Kings disarmed the populace and packed the militias with their supporters), so the right was preexisting, not new.
The prefatory clause states the purpose of the Amendment. Since the purpose was to make sure people would be able to serve as a militia and the kinds of weapons they would bring would be the ones they owned for home protection, those are the kinds of weapons protected by the Amendment. M-16s and other high-power weapons wouldn’t be useful for home defense and thus would not be expected in a militia. Therefore they would not be protected by the Amendment.
Justice Scalia leaves significant questions unanswered: Does the right only apply against the federal government, or against states, too? Justice Scalia says that the opinion does not allow felons and the mentally ill to possess guns, or allow guns to be taken into sensitive areas like schools, but he does not offer support for those exceptions.
Turning to the DC laws, Justice Scalia says that they prohibit any possession of weapons that would be useful for self defense. Handguns are the weapons most people choose for defense of the home, and DC bans them as a class. Similarly, the restrictions on longguns render them useless for home defense. Thus, the restrictions are unconstitutional.
The challenge did not address the requirement that guns be registered, so that law stands.
Justice Stevens dissents, criticizing the majority’s interpretation of the Second Amendment. He reads it as saying people can have guns only in a military context, since phrases like “bear arms” have often been used when referring to organized state militia.
Justice Breyer takes issue with the invalidation of the DC laws. Under a balancing approach, considering DC’s crime rates and the crime control options available to lawmakers, he says that the DC laws should be allowed to stand. This is similar to the position the Bush Administration took in the case, which was that there is an individual right to possess guns, but that the courts should be more deferential when reviewing the laws.
