Heller

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.