T Nation

Heller v. DC - Your Gun Rights Case

Affirmed - the Second Amendment protects and individual’s right to bear arms, and the lower court’s decision overturning the DC gun ban stays.

Scalia wrote the majority opinion; Breyer dissented, joined by Stevens, Souter and Ginsburg; Stevens wrote a separate dissent, also joined by Breyer, Souter and Ginsburg. Haven’t seen the opinions yet, but the authorship and breakdown tell you a lot…

ADDENDUM: Scalia’s majority opinion, followed by the dissents, is here:

And here’s the initial overview summary from SCOTUSblog:

[i]Answering a 127-year old constitutional question, the Supreme Court ruled on Thursday that the Second Amendment protects an individual right to have a gun, at least in one’s home. The Court, splitting 5-4, struck down a District of Columbia ban on handgun possession.

Although times have changed since 1791, Justice Antonin Scalia said for the majority, “it is not the role of this Court to pronounce the Second Amendment extinct.”

Justice Scalia’s opinion stressed that the Court was not casting doubt on long-standing bans on carrying a concealed gun or on gun possession by felons or the mentally retarded, on laws barring guns from schools or government buildings, and laws putting conditions on gun sales.

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun - except one kept at a business - must be unloaded and disassembled or have a trigger lock in place.

The Court said it was not passing on a part of the law requiring that guns be licensed. It said that issuing a license to a handgun owner, so the weapon can be used at home, would be a sufficient remedy for the Second Amendment violation of denying any access to a handgun.

Justice Scalia’s recitation from the bench of the majority’s reasoning continued for 16 minutes. Justice John Paul Stevens followed, for seven minutes, summarizing the reasons for two dissenting opinions - his and one written by Justice Stephen G. Breyer.[/i]

Given this opinion has been available for about 1/2 an hour now, note that there will be a lot more to say about this later.

  • Edited for clarification.

Seems like a big win for Gun Owners. Looking forward to your evaluation BB.

Freaking awesome. If I lived in DC, I’d be on my way to the gun store now.

Well, the first point of evaluation is simply to note this was 5-4. One retiree among the majority, with one Obama appointment, and if another case comes up it goes the other way.

Sweet. Good to see the SCOTUS do the right thing here. Imagine, telling a homeowner what firearms he/she can own, how they will store them, and whether or not they can keep ammunition in the home as well. Bullshit.

Anyways, this was a good ruling…

This is GREAT news!

But it’s also a bit disappointing to me that it was another 5-4 split. That means that the next time an issue like this comes before the court, the whole court might be leaning more to the left and thus a new ruling could completely reverse this one.

[quote]
Held:

  1. 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.
    Pp. 2�??53.
    (a) 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. [/quote]

Amen to that.

This quote cracked me up:

Scalia noted that the handgun is Americans’ preferred weapon of self-defense in part because “it can be pointed at a burglar with one hand while the other hand dials the police.”

[quote]katzenjammer wrote:
This quote cracked me up:

Scalia noted that the handgun is Americans’ preferred weapon of self-defense in part because "it can be pointed at a burglar with one hand while the other hand dials the police.
[/quote]

Scalia is the freaking man.

Should have been 9-0. The fact that 4 voted against the obvious intent of the 2nd amendment shows how incredibly biased they actually are. Scary if Obama appoints a couple to the USSC.

From the AP article:
[i]In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

He said such evidence “is nowhere to be found.”[/i]

Limiting the tools available to elected officials to regulate civilian weapons was the exact purpose of the 2nd amendment!

This man is a Supreme Court Justice?

I’m with Zap. I’m greatly troubled that this was only a 5-4 decision.

[quote]tGunslinger wrote:
From the AP article:
[i]In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

He said such evidence “is nowhere to be found.”[/i]

Limiting the tools available to elected officials to regulate civilian weapons was the exact purpose of the 2nd amendment!

This man is a Supreme Court Justice?

I’m with Zap. I’m greatly troubled that this was only a 5-4 decision.[/quote]

I thought they did a good job limiting the tools available to elected officials by writing the second amendment. His claim that it “is nowhere to be found” is ludicrous.

[quote]Zap Branigan wrote:
Should have been 9-0. The fact that 4 voted against the obvious intent of the 2nd amendment shows how incredibly biased they actually are. Scary if Obama appoints a couple to the USSC. [/quote]

For once, I whole-heatedly agree.

And Scalia thinks he’s funny. Which… is actually kind of funny =P

[quote]Zap Branigan wrote:
Should have been 9-0. The fact that 4 voted against the obvious intent of the 2nd amendment shows how incredibly biased they actually are. Scary if Obama appoints a couple to the USSC. [/quote]

I’m starting to see the light…

I agree with the decision, but the other side made extremely good arguments. It was a very interesting case.

Thank God. I was worried about this one… the only subject in the world that I side with Republicans on…

http://volokh.com/archives/archive_2008_06_22-2008_06_28.shtml#1214502247

EXCERPT:

[i]1. There’s no substitute for winning elections. The 5-4 conservative-liberal lineup (admittedly, with one of the four being a Bush, Sr. appointee) shows this. These issues aren’t just about winning elections, as I’ll note below. But winning is part of it.

My guess is that, if the McCain campaign is smart about this, it can make this an important linchpin of its fundraising (“imagine what would happen to your rights if Justices Scalia and Kennedy retire soon and are replaced by Barack Obama”), of its attempts to energize the base, and of its attempts to bring over swing voters in swing states where the middle of the electorate tends to be pro-gun.

Naturally, the Obama campaign can try the same, as I’m sure it will be doing as to abortion rights. My guess is that such Obama strategies will be less effective than a McCain strategy of hitting the gun-rights point (of course, in ads targeted to particular subsets of the voters):

My sense is that pro-gun-ban voters are less dedicated to this view than are pro-gun-rights voters, and that the pro-abortion-rights voters are less likely to be swing voters in swing states. But in any case, both approaches might make sense – McCain may hit the gun rights issue hard in some places, and Obama the abortion rights issue hard mostly in other places (and especially to energize his base, including Hillary Clinton partisans who might otherwise have been lukewarm towards Obama).[/i]

[i]
Commentary: So, what’s next on guns?
Thursday, June 26th, 2008 3:22 pm | Lyle Denniston |

Commentary

If the Supreme Court’s historic ruling on gun rights brings about, as the dissenters said, “a dramatic upheaval in the law,” perhaps that was enough of a task to perform for one day.

And, in fact, Justice Antonin Scalia’s opinion for the Court conceded that the ruling in District of Columbia v. Heller was but a first step, saying: “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.” And it definitely did not.

Still, it is remarkable how much was left undecided, and, therefore, how wide-ranging the post-Heller litigation is going to be. It is already apparent, from comments that the National Rifle Association was circulating among the news media Thursday, that the Nation will not have to wait long for those lawsuits - probably a flood of them - to begin.

Justice Stephen G. Breyer’s dissenting opinion lists a wide array of gun control laws now in force that, one suspects, the NRA will soon challenge.

In the omitted or otherwise unaddressed facets of the ruling, there is plenty to fill up court dockets from here on.

Before proceeding to the more substantial of these, it is worth noting that the Court did not even say why it had authority to hear and decide this case. It did not say, for example, why the District of Columbia - a governmental oddity that is neither a state nor a branch of the federal government - is subject to the strictures of the Second Amendment.

That was a seriously debated issue when this case was in the D.C. Circuit Court, but the Supreme Court does not even mention it. The opinion also does not decide, explicitly, why Washington security guard Dick Heller had a right to challenge the provisions of the D.C. law that the Court has now struck down �?? an issue that, in part, divided the Circuit Court (although the District of Columbia in its appeal did not challenge Heller’s “standing”).

Often, the opening pages of a Supreme Court opinion will address such basic issues, because the Court does not have the authority to simply reach out and decide any question that merely is interesting. But the Scalia opinion provides less than a full page of background on the case, then leaps directly into “the meaning of the Second Amendment.”

What emerges thereafter, of course, is not the full meaning of the Second Amendment, but only a beginning slice of that meaning.

It does remove all doubt - and there has been doubt about this for years - that the Amendment means that there is an individual right to have a pistol to keep in one’s own home, in operating condition, for purposes of “confrontation” - warding off intruders, or perhaps, aggressive family members.

It also seems to mean (though this is only implicit) that there is, for the first time, a constitutional right to self-defense - or, at least, a common-law right of self-defense that is close to being of constitutional rank.

But, while it is important to have those points clarified for the first time in the 217-year history of the Second Amendment, there remains much still in the realm of the unknown.

First among the open questions, and perhaps one of the most important of them, is whether this ruling applies beyond the federal government and the District of Columbia government (assuming that it is settled that those two entities at least are now covered).

It is absolutely clear that the Bill of Rights’ specific guarantees of individual rights do not apply to any level below the federal government �??- that is, to state, county and city governments - unless the Court has ruled explicitly that they are to apply at those levels by a process that is called “incorporation.”

The Court has read into the Fourteenth Amendment - an amendment written to restrict state and local government powers - many of the rights in the first ten amendments. That process began in the late 19th Century, and continued up through the first three quarters of the 20th Century.

But the process has not meant a total absorption of the Bill of Rights in the Fourteenth Amendment. The Fifth Amendment right to be charged by a grand jury has not been applied to the states; neither has the Seventh Amendment right to a jury trial in a civil case. And neither has the Second Amendment.

But conservative jurists, like those who made the majority in the Heller case, usually are not fond of lifting parts of the Bill of Rights out for inclusion under the Fourteenth Amendment. Given the glowing rhetoric applied to the virtues of an individual right to have a gun, perhaps that reluctance might be overcome.

If, as expected, the NRA or some other litigant goes after a state or local gun law, relying on the Second Amendment, the Court may well have to answer explicitly whether it applies at all to such laws. Some already are reading the Heller decision to signal a willingness say “yes�??” to that question; the evidence of that is of an uncertain nature, though.

Second among the issue not resolved Thursday is the standard of review that the Court will apply to judge the constitutionality of any other law that differs, even in a small detail, from the District of Columbia handgun ban that was nullified.

Justice Scalia’s opinion definitely rules out mere “rational basis” as the standard that a gun control law would have to satisfy. As most lawyers know, rational basis is enough to uphold a good many laws. The opinion also rules out a test for balancing the interest in having a gun against a government interest in regulating guns.

But further than rejecting those two standards, the Scalia opinion does not go. The right, as he describes it, sounds as if it were fundamental in nature, deserving the highest constitutional protection. It does not say that explicitly, however.

Third, there is uncertainy about just why some forms of gun regulation already appear to have passed whatever test the Court did apply, perhaps only temporarily, in Heller. Why does the Amendment not protect, for example, carrying a concealed weapon, as the opinion seems to say?

Or, why wouldn’t the right apply, as the opinion also seems to imply, to a gun being carried innocently into the Senate Office Building, as a U.S. senator’s aide once did? Justice Scalia said justifications for such exceptions will have to wait.

Fourth, the Court opts not to rule on whether laws requiring a license to have a gun, even to have it only at home, so that part of the District of Columbia law survives - but perhaps only until the next test case. The NRA surely would not leave licensing controls in repose.

Fifth, what kinds of guns does one have a constitutional right to possess, even if that right is limited to one’s own home? The opinion gives some hints - “weapons typically possessed by law-abiding citizens for lawful purposes” - but the most that one can say with confidence is that pistols, easily loaded and easily handled, are definitely within the right of possession, in operable condition in the home, for self-defense.

Is a rifle something one can constitutionally have at home, even though not readily useable if one is suddenly attacked? Or a repeating pistol? The opinion does not say for sure.

Sixth, does a gun owner carry the constitutional right with him (or her) when he leaves the house or the apartment? The right explicitly recognized in the Heller decision is strictly confined to “hearth and home.” Does that include the front porch, a balcony, the yard, the front sidewalk, the street, the neighborhood? The Court does not set the limits.

As Justice Scalia’s opinion said in closing, “there will be time enough to expound upon” what was not decided Thursday. And, no doubt, that time is coming soon.[/i]

http://volokh.com/archives/archive_2008_06_22-2008_06_28.shtml#1214493161

[i][Orin Kerr, June 26, 2008 at 11:12am] Trackbacks
Key Limitations of Heller: From the slip opinion ( http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf ) at 54-55:

[quote] [N]othing 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. [fn: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." [citations omitted][/quote]

Relatedly, here’s the analysis of why the handgun ban violates the individual Second Amendment right on 56-58:

[quote] [T]he inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.

Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

. . .
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.

There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand 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. [/quote]

Of course, the DC government may now try again, enacting another gun restriction that is less severe; presumably that law will need to be litigated, as well, which will force the courts to tell us more about the degrees of scrutiny.[/i]

Summary of Scalia’s opinion by a former Scalia clerk:

http://bench.nationalreview.com/post/?q=MTQ2NmE4ZDRiZDdiNTAyYTIyMjgyYmQ0YmEyMjRkNjE=

He also gives a very brief, high-level summary of the dissents:

http://bench.nationalreview.com/post/?q=NGNmYWZlZTZkOTBkYjEwYjc3ZWU4ZTlhYTYxNDY5NTQ=

[quote]Zap Branigan wrote:
Should have been 9-0. The fact that 4 voted against the obvious intent of the 2nd amendment shows how incredibly biased they actually are. Scary if Obama appoints a couple to the USSC. [/quote]

I agree it should be 9-0, but 5-4 is in my book 55.5 to 44.5. In a presidential election that would a landslide. My point is that if you get 5.5 out of 10 people to agree with you, that’s a lot.

And you are right. 30+ years ago my dad told me that one of the biggest reasons he voted republican was the Supreme Court. It’s one of the biggest for me.

The biggest is the second amendment, without the 2nd, the first and 3-10 mean nothing.