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Heller June 27, 2008

Posted by Sobek in Crime, Law.

How cool would it be to have a last name that is synonymous with gun rights? I imagine Dick Heller, the police officer who successfully challenged the nation’s most restrictive handgun ban, can pretty much drink for free at any NRA meeting he attends for the rest of his life.

I’ve seen scattered comments on the Heller decision here and there, but I want to do more of a summary of what happened and what it means, in layman’s terms.

I. The Parties

This case actually involves three challenges to the D.C. gun ban. The first is by a group of private citizens (Shelley Parker, Tracy Ambeau, Tom Palmer and George Lyon) who wanted to carry handguns in their homes for self-defense. The second is Gillian St. Lawrence, who owns a shotgun and wants to keep it assembled and without a trigger lock, also for in-home self-defence. Dick Heller is a police office who applied for and was denied a registration certificate to own a handgun.

Only Heller was allowed to proceed with the lawsuit. The others didn’t ever apply for registration, because the law flatly says they cannot get one. The trial court said that’s not good enough; if they want to challenge the law, they have to apply and get denied first (or, I suppose, get arrested for keeping an unregistered weapon).

II. The Law

The D.C. law generally barred the registration of handguns (with an exception for retired D.C. police officers); punished carrying a pistol without a license; and required lawfully-owned firearms to be kept unloaded and disassembled or bound by a trigger lock.

III. The Lawsuits

The trial court dismissed the cases by saying the Second Amendment only applies to bearing arms in the militia, and not to self-defense, so individuals couldn’t challenge the ban.

The Court of Appeals disagreed, and said the Second Amendment applies to self-defense, and specifically protects pistols.

IV. The Supreme Court

In a lengthy (but mercifully unified) opinion, SCOTUS affirmed the Court of Appeals. In summary: (1) the Second Amendment still applies, (2) the Second Amendment protects an individual right, (3) “arms” are not limited to a military use, (4) certain types of “dangerous and unusal weapons” can be restricted, (5) the state can maintain certain longstanding prohibitions, like denying licenses to felons and the mentally ill, or keeping guns out of schools and government buildings, or imposing conditions and qualifications on commercial sales, (6) the Court doesn’t apply a rational basis test, (7) a total ban on handguns is unconstitutional (and is not saved by allowing long guns), (8) D.C. cannot require guns to be kept inoperable, and (9) the state can still impose licensing requirements.

A. The Text

The Second Amendment says that “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 part before the first comma is called the “prefatory clause,” and the part after the first comma is called the “operative clause.” D.C. argued that the prefatory clause limits the effect of the operative clause, so that there is no right to keep and bear arms other than in connection with an organized militia.

Scalia starts with the operative clause, saying the prefatory clause only clarifies the purpose of, and does not limit the extent of, the operative clause. He then breaks down the operative clause as follows:

The Amendment protects “the right,” meaning it was already existence when the Constitution was ratified, and was not created by the constitution, so we need to look back at English sources to see what the right involved. Historical usage and dictionaries show “arms” means any kind of weapons, not just military weapons. “The people” as used in the Constitution means individuals, and not citizens as a whole. “Keep” means to have or to carry, and is doesn’t have any technical, specifically military connotation. “Bear arms” sometimes has a specifically military application, but Scalia shows a wealth of examples proving that it did not only refer to military applications. Scalia also rejects the argument that the phrase “keep and bear arms” has a uniquely military connotation, again based on historical records proving otherwise.

In the prefatory clause, “the Militia” pretty much just means “everyone,” because pretty much anyone was subject to militia service at the founding (although it only applied to white men, but such restrictions are obviously no longer applicable). “State” means “polity,” rather than one of the United States, so the amendment applies to D.C.

B. Other Sources

Scalia then relies on other state constitutions, adopted before or shortly after the Second Amendment, which again prove that “bear arms” does not have a stricly military application, but that it includes self-defense. He rejects Stevens’ argument that the drafting history of the Second Amendment proves it only referred to the military. And he expounds at length on post-ratification sources, from the early 1800s to the end of that century, which show almost total unanimity on the point that the Second Amendment protects an individual right.

C. Precedent

Finally, he discusses the four SCOTUS cases that mentioned the Second Amendment. U.S. v. Cruikshank (1876) held the Second Amendment did not apply to the States, did not specifically discuss the individual right issue, but was consistent with the individual right theory (in footnote 23, Scalia suggests that the Second Amendment might very well apply to the states now). Presser v. Illinois (1886) upheld a law that basically prohibited private armies, and did not discuss the individual rights issue. U.S. v. Miller (1939) upheld the convictions of two men who transported a sawed-off shotgun across state lines. Stevens argues that Miller means the government can ban guns outside of a military context. Scalia responds that (a) the case only purports to ban certain types of guns, regardless of membership in a militia, and (b) if the case were really all about the militia, it would have been pointless to discuss the type of gun involved. The only other case, Lewis v. U.S. (1980), only mentioned Miller in a footnote, and didn’t discuss the Second Amendment in any kind of detail.

D. Limits

Scalia sets forth, by way of example, some permissible restrictions on 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 arms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

This is not an exhaustive list, but he wanted to leave these issues to future litigation, rather than try to pronounce once and for all time the exact scope of the Second Amendment.

The amendment also does not protect “dangerous and unusual weapons,” although we are not told what those might be. Any gun can be dangerous. At a minimum, we know a sawed-off shotgun can be banned. Probably an M16 (the only other gun specifically mentioned). No one knows what else.

E. Scrutiny

When challenging a law as unconstitutional, one of the most important questions is the level of scrutiny. The lightest burden is called rational basis, and laws subject to rational basis scrutiny are almost universally upheld. There is an intermediate standard, and then the toughest standard is called “strict scrutiny,” and laws subject to that level are almost universally struck down.

Scalia doesn’t say what level of scrutiny he applies here. He admits in a footnote that the gun ban would survive rational basis, so obviously that’s not it. Breyer proposes that all gun cases be subjected to a balancing of interests, and Scalia rejects that right out. We will have to see future decisions to answer that question.


1. Pupster - June 27, 2008

4th para: “because the law flatly says they can get one”

I assume you meant to say ‘can’t’.

Thanks for the breakdown. Did you write all that on your lunch hour, or is some client getting the shaft? (For the record, I’m OK with either explanation.)

2. kevlarchick - June 27, 2008

I wonder if I should take down my claymore and battleaxe from the rack beside the front door.

Thank you Sobek for that discussion.

3. xbradtc - June 27, 2008

INAL, but FWIW, I always thought the felon restriction was legitimized not by the restriction of the 2A, but rather the forfeiture of certain rights by felons through due process, to include voting, and in the olden days, having a driver’s license, being an officer of a corporation or holding a seat on an exchange.

4. Russ from Winterset - June 27, 2008

Much better than my “Top Ten Findings contained in the Heller Decision” posted at Ace’s, sobek. Thanks for the summary.

5. kevlarchick - June 27, 2008

Russ how is our IB baby?

6. Dave in Texas - June 27, 2008

Joseph Heller wrote Catch-22

7. Sobek - June 27, 2008

“I assume you meant to say ‘can’t’.”

Right you are.

“…or is some client getting the shaft?”

I prefer to think of it as “quality legal analysis.”

“I always thought the felon restriction was legitimized not by the restriction of the 2A, but rather the forfeiture of certain rights by felons through due process…”

That’s my understanding as well. The point is that the 2d Amendment doesn’t trump the forfeiture.

“Joseph Heller wrote Catch-22”

That book was hysterical. When my (ultra-conservative) mother in law found out I was reading it, she was afraid I was turning into a hippy.

8. Mr Minority - June 27, 2008

I heard that a lawsuit was already filed in Chicago based on Heller.

Next up, San Fransicko!

9. Dave in Texas - June 27, 2008

It still chaps me to no end that we got within one black robe of effectively nullifying the Second Amendment.

10. Mr Minority - June 27, 2008

It still chaps me to no end that we got within one black robe of effectively nullifying the Second Amendment.

It doesn’t chap me, it scares the shit out of me!!

Just like the ruling of Kelo v New London does.

11. Russ from Winterset - June 27, 2008

KC, photos will be posted soon. He had his first photo shoot the other night, and we got a CD full of images. He wasn’t smiling quite as much as usual, but he did manage to make it through the shoot without crying or falling dead asleep.

A week ago Monday, he weighed 10 pounds, 3 ounces at the Dr.’s office. He’s probably up over 11 or 11.5 pounds now, because he’s been eating like a little Jethro Bodine.

12. Muslihoon - June 27, 2008

Thank you very much, Sobek.

13. Pupster - June 27, 2008

When my (ultra-conservative) mother in law found out I was reading it, she was afraid I was turning into a hippy.


Does she check your sideburns every visit? I had an great aunt who did that. I used to say ‘man’ at least once a visit to get a reaction. “Pass the biscuits, man.”

14. Sobek - June 27, 2008

Cool, daddy-o.

15. Mr Minority - June 27, 2008


16. Tushar - June 27, 2008

I wonder if “The people” includes non-citizens. I hope it doesn’t. It is not a good idea to let foreigners, with allegiance to foreign powers, run around armed.

But if it does, maybe I should get me one of those Kimber thingys you guys keep talking about. Although my elder brother, who is a big James Bond fan, would want me to have nothing except a Walther PPK.

17. eddiebear - June 27, 2008

I prefer my breath in the morning after a night out on the town.

18. Muslihoon - June 27, 2008

Sorry, Eddie. Sobek can correct me if I’m wrong, but I believe civilians are still not allowed to use biochemical weapons.

19. eddiebear - June 27, 2008


20. daveintexas - June 27, 2008

Tushar, in Texas you have to be a citizen to get a CCW. Don’t know about NJ, but I’m guessing it’s harder there.

21. cathy - June 27, 2008

Thanks Sobek, for the rundown.

22. vmaximus - June 27, 2008

I lived in Jersey from 89 to 92.

You are F***ed.
In Fla, you can buy all you want, but you have to send them “home”
A legal alien can purchase as many firearms as they want, however they cannot posses them. They can ship them “home”

23. Sobek - June 27, 2008

Tushar, according to the late Chief Justice Rehnquist, “the people” in the Second Amendment and elsewhere means “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.” U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)(specifically referring to the First, Second and Fourth Amendments).

So to answer your question, it looks like the Rehnquist Court would have extended Second Amendment rights to some, but not all, non-citizens, and most likely to lawful resident aliens.

That’s not to contradict VMax, because for now, NJ is probably not going to voluntarily comply with the spirit of Heller; it will do so only after it is forced to should the Court apply the Second Amendment to the states.

With that in mind, I think you should file a lawsuit. They could call it “Surprisingly-Tired-Looking Brown Person v. New Jersey.”

24. GrumpyUnk - June 28, 2008

This ruling is a great anchoring spot and just the starting point for the ongoing battle of good vs evil.

The 4 dissenters, who are supposed to be scholars, couldn’t find the time to read the many words written by those who wrote and signed the Constitution? I could put together a list of quotes by our Founding Fathers in 30 minutes that would show exactly what those men had in mind regarding the 2A and RKBA. It’s very clear that they wanted everyone to have and be proficient with arms. And not just for hunting and home defense.

Impeachment would be (not as fun as lynching) a good start for this group who obviously isn’t up to the job they were appointed to. That includes that asshole Kennedy even though he got it right on this one.
Kelo should have warned us what these corksoakers are capable of and removal of them from the bench – or the gene pool – should have begun then.
I thought there were standards and such with being in a job like that.

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