By Christopher Moriarty
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.
Never has one sentence created so much ambiguity and controversy. Well over two centuries after it was incorporated in the Bill of Rights, the Supreme Court has, for the first time, spelt out exactly what the framers of the Constitution intended the Second Amendment to mean. Appropriately, the Court released its most eagerly anticipated decision of last term on June 26, 2008, in District of Columbia v. Heller.
Heller concerned the constitutionality of the District of Columbia's prohibition on the possession of handguns, and has raised emotions on both sides of the often polarized debate to near fever-pitch levels. The case started in 2003, when six residents of Washington, D.C., including Dick Heller, filed a lawsuit challenging the constitutionality of a City Council law of 1976, which forbid the registration of any gun "originally designed to be fired by use of a single hand." The law, allegedly aimed at preventing deaths and injuries resulting from handgun use, restricted residents from owning handguns, although it provided an exception for handguns owned by active and retired law enforcement officers. Concerned about high crime rates in his neighborhood and hoping to keep a handgun at home for self-defense, Dick Heller sought to challenge the ban. The district court dismissed the lawsuit, but the District of Columbia Circuit Court of Appeals reversed, holding that the ban was incompatible with the Second Amendment,
Releasing its decision on Thursday, the Supreme Court split along its ideological axis, 5-4 in favor of upholding the decision of the District of Columbia Circuit Court of Appeals, and affirmed the right of Dick Heller to register and possess a handgun in his home.
In striking down the District's ban on possessing a handgun in one's home and requiring any lawful firearm in the home to be disassembled or bound by a trigger lock, the Supreme Court opinion's author, Justice Scalia, who was joined by Chief Justice Roberts and Justices Kennedy, Thomas and Alito, interpreted the Second Amendment as giving citizens an individual right to keep and bear arms. The majority rejected the District's argument, which was supported by the dissenting justices, that the right was collective in nature and therefore only applicable in connection the militia.
The Court did not view the District's motives behind the ban as being relevant to its decision, however, stating, "[W]hat is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct." Instead, the Court engaged in an analysis of the language and history of the right to keep and bear arms, looking back to colonial history and language in making its decision. The Court held that the right pre-existed the Constitution, tracing its origins back to 17th-century England. The Court also recognized that the Constitution merely codified a right that was already established in Anglo-American jurisprudence.
The Court was careful to point out that the Second Amendment was not absolute, however: "It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Traditional restrictions on the possession of firearms by felons and mentally ill persons remain constitutional, while restrictions on the carrying of firearms in sensitive places such as schools and government buildings are also permissible.
Despite the clarity of the decision, the Court did not outline a test for judging the constitutionality of the law, which drew strong attacks from the dissenting justices. Whatever test does ultimately emerge, however, will likely be a difficult standard for the government to meet, with Justice Scalia stating that the right to keep and bear arms "surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home."
Arguably, the decision does not end the potential litigation over "gun rights," as the Court did not address whether the Second Amendment restricts only federal government powers, or also controls the ability of the states to regulate firearms. The issue of incorporating the Second Amendment into the Fourteenth Amendment--the means by which constitutional rights are applicable to the states--was not presented in the case. Previous decisions in the late-nineteenth-century held that the Second Amendment was only applicable to the federal government, but the Heller opinion strongly suggests that the ruling applies equally to the states. Either way, the decision is unlikely to be the final salvo fired over the constitutionality of handgun bans in America's cities. It will surely only be a matter of time before lawsuits are filed in American cities that have similar restrictions on handgun ownership.
Christopher Moriarty is a staff attorney with The Rutherford Institute.