District of Columbia v. Heller (2008) – Guest Essayist: James D. Best

District of Columbia v. Heller provided clarity to a long and quarrelsome debate about the application of the Second Amendment. The crux of the case was whether the right to “keep and bear arms” was an individual right or a collective right associated with regulated militias. The Supreme Court (5-4) ruled the Second Amendment an individual right.

Specifically, the case challenged overly restrictive gun laws of the District of Columbia.

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 disassembled 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.

The Second Amendment reads, “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.” Did the first clause merely define one of the reasons for the right or articulate a sole condition to “keep and bear arms?”

The 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 hom

Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right

The Court also held that

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

Justice Scalia, who wrote for the majority, cited historical writing and events, used contemporaneous and current dictionaries to define words, and expounded on the relevance of sentence structure. He based his decision on the historical context and actual language of the amendment.

the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia

virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do.

He attacked the minority opinion with logic.

if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause

He also relied on what Cicero defined as the laws of nature.

it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right … [t]his is not a right granted by the Constitution.  Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed

Justice Stevens, writing for the minority argued for “judicial continuity” and unwavering reliance on precedent. Further, he argued that the first phrase of the amendment was paramount.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia … Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

Stevens argues that numerous cases have upheld the government’s power to regulate the civilian use of firearms, and thus that power can be extended nearly without limit.

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons.

Scalia calls the initial phrase of the amendment a prefatory (introduction), while Stevens repeatedly refers to it as a preamble. (Although he acknowledges that “the settled principle of law is that the preamble cannot control the enacting part of the statute”). Stevens further argues that “the people” is not as inclusive as in other parts of the Constitution, and even claims that the First Amendment protects collective rights. In effect, Stevens argues that individual rights are the exception in the Bill of Rights.

While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.

The Framers did not view the Bill of Rights as a list of government-guaranteed rights—individual or collective. To them, the Bill of Rights was a restraining order, one that told the government to never interfere with the natural rights of the people. The first eight amendments are filled with phrases like, “Congress shall make no law, shall not be infringed, shall not be violated, nor be deprived, shall not be required.” This is not a list of rights generously bestowed by a benevolent government, but instead a list of restrictions on government. In case they forgot something, the Framers added the Ninth and Tenth Amendments.

Over the years, the Supreme Court has set itself up as the arbiter of rights. So much so, that many people have come to view it as the grantor and guarantor of rights. Our rights will be safer if we returned to the perspective that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.”

District of Columbia v. Heller (2008) Supreme Court decision: https://supreme.justia.com/cases/federal/us/554/570/

Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, and Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales.

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