DC v Heller Decision - Second Amendment Protects Individual Right

As predicted in my earlier blogs on this case, the Supreme Court today held 5-4 in DC v. Heller that the Second Amendment protects an individual right.

As stated in the syllabus, Justice Scalia's majority opinion announces 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 home."

Regarding the linguistic interpretation of the Second Amendment, which confoundingly 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," the Court said that the "prefatory clause" (i.e., the language up to and including "... free State"), while it announces a purpose, does not limit the purposes for which the right identified in the "operative clause" (ie, "the right of the people to keep and bear Arms, shall not be infringed") may be used - including the right to keep arms for self-defense.

Interestingly, on the narrow technical question of whether the Second Amendment protects an individual right, it would appear that all nine Justices agree. As the first lines in Justice Stevens' dissent comments, "The question presented by this case is not whether the Second Amendment protects a 'collective right' or an 'individual right.' Surely it protects a right that can be enforced by individuals."

Where the dissent differs, however, is in how far that individual right goes. As Stevens continues, "But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."

On this point, all nine of the Justices also agree that some measure of regulation of the right to bear arms is acceptable. The majority allows, for example, that the following sorts of restrictions would not necessarily violate the Second Amendment:

• concealed weapons prohibitions;
• longstanding prohibitions on the possession of firearms by felons and the mentally ill;
• laws forbidding the carrying of firearms in sensitive places such as schools and government buildings;
• laws imposing conditions and qualifications on the commercial sale of arms;
• historical prohibitions on the carrying of dangerous and unusual weapons (weapons protected are only those “in common use at the time” of the Second Amendment's drafting (ie, 1789).

So, in a way, the majority and dissent are largely in agreement: there is an individual right, and certain regulations are acceptable. Where they disagree is in how restrictive those regulations may be. Whereas the dissent believes a total ban on guns (as in the DC ordinance at issue in the case) would be okay, the majority says that in no event may the regulate impose an outright prohibition.

So what will this mean? It means there will be a lot of litigation to determine whether certain federal restrictions on guns are constitutional. It will also mean that State and Local laws will be challenged, and the next BIG question for the Court will be whether the Second Amendment even applies to the States.

The Bill of Rights, by its terms, only applies to the federal government; however, within the last eighty years or so the Supreme Court has held that almost every other one of the twenty-five or so protections contained within the Bill of Rights (such as the First Amendment freedom of speech and religion; the Fourth Amendment right to be free of unreasonable search and seizure, and the Eighth Amendment's right to be free of cruel and unusual punishment) applies also to the states - but it has simply never addressed within that time the issue of whether the Second Amendment applies to the States.

Assuming the Court holds that the Second Amendment applies to the States, as I argue it should in my 2007 piece in the Missouri Law Review entitled, "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses," there will then be a lot of litigation on whether state and local restrictions survive the Second Amendment.

So is this a good decision? Yes. As I've argued previously, it's always a good thing when the Court recognizes a constitutional protection of an individual liberty interest. A faithful reading of the Constitution does not allow us to pick and choose from among rights we like or dislike, and we bolster all of our rights, both enumerated and unenumerated (e.g., right to privacy, right to be free of government interference in actions which do no harm to others), when we adopt an expansive view of individual liberty.

Stay Tuned for the Case of the Century: DC v. Heller

The Second Amendment case scheduled for argument in the U.S. Supreme Court on March 18, District of Columbia v. Heller, is one of the most highly-anticipated Supreme Court cases in many years - and with good reason, for in constitutional terms DC v. Heller is a once-in-a-lifetime (or even a once-in-several-lifetimes) case.

Think of it this way. Every year the Supreme Court decides important cases involving whether the government infringes a particular individual right that the Court has previously recognized as protected under the Constitution, whether it be the 1st amendment right to practice the religion of one’s choice, the 4th amendment right to be free of unreasonable governmental search and seizure, the 5th amendment right not to have property taken by the government without just compensation, the 8th amendment right not to be subjected to cruel and unusual punishment - and so on.

Much less frequently, maybe only once every few decades, the Court decides a case that fundamentally changes how we view a particular constitutional right. For example, in 1954 the Court decided Brown v. Board of Education, which reversed its earlier position, held since before the turn of the twentieth century, that “separate but equal” laws do not violate the 14th amendment’s guarantee of equal treatment. After Brown, then, all so-called “Jim Crow” laws were unconstitutional. Some twenty years later in 1973, the Court decided Roe v. Wade, which found that the “liberty” protected in the 5th and 14th amendment due process clauses is broad enough to include certain “privacy” interests, such as the right of a woman to choose whether to have an abortion free of government prohibition. Roe opened the door to the Court’s acknowledgement of other liberty interests protected under the 5th and 14th amendments, including the right of individual personal autonomy to engage in private consensual sexual conduct free of government interference in the landmark 2003 case Lawrence v. Texas.

While Brown, Roe, and Lawrence are all hugely important in defining the scope of the freedom enjoyed by Americans, even they “only” involved the interpretation of previously-acknowledged constitutional rights – i.e., the right of “equal protection” in Brown, and the right of “liberty” in Roe and Lawrence. DC v. Heller, by contrast, involves a right that most courts throughout American history have held does not even exist. Under this prevailing view, courts have held there is no individual right to keep and bear arms; rather, the Second Amendment protects the right of persons to keep and bear arms only insofar as the State authorizes them to do so in the interest of maintaining a militia.

There just are not many constitutional provisions like the Second Amendment (the Ninth Amendment and the Fourteenth Amendment privileges or immunities clause being other notable examples), where the very existence of a right suggested in the text of the Constitution goes unacknowledged by the Supreme Court. Accordingly, a case like DC v. Heller comes along extremely rarely – maybe only once every century or more.

What is it in particular about the Second Amendment that makes its meaning so uncertain? After all, the context of the amendment’s placement within a grouping of nine other amendments in a “Bill of Rights” designed to protect individual rights from government interference would seem to suggest that the Second Amendment likewise protects an individual right. The text itself, however, is no model of clarity. By stating, “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 amendment opens itself up to argument on whether it is intended to protect only a collective State right as opposed to an individual right. And as noted, virtually every federal and state court considering the question over the past century has adopted the former perspective - until now.

It remains to be seen how the Supreme Court will decide this question. At the least, its decision to review the DC Circuit Federal Court of Appeals’ conclusion that the Second Amendment protects an individual right will provide a fascinating rare look at history in the making. Whatever its outcome, DC v. Heller is destined to become one of a small handful of household-name Supreme Court cases in the Nation’s history.