Court strikes down D.C. gun ban (June 26, 2008)

On its final day of the term, a Supreme Court divided along familiar ideological lines broke its seven decade silence regarding the central meaning of the Second Amendment when it struck down Washington, D.C.’s ban on handguns.

The case, District of Columbia v. Heller, No. 07-290, involved three District of Columbia firearms ordinances. The first, D.C.Code Sec. 7-2502.02(a)(4), generally bars the registration of handguns. The second, D.C. Code Sec. 22-4504(a), prohibits carrying a pistol without a license. The third, D.C. Code Sec. 7-2507.02, requires that all lawfully owned firearms be kept unloaded and either disassembled or trigger locked.

A group of plaintiffs brought suit; several alleged that they wanted to keep handguns at home for self-defense, while one wished to keep her legal shotgun assembled and unlocked within her home. Finally, plaintiff Dick Heller, who as a D.C. special police officer is entitled to carry a gun while working as a guard at the Federal Judicial Center (which offices retired Supreme Court justices), was denied the right to register his gun to keep at home.

The federal trial court in Washington, D.C., granted the District's motion to dismiss the suit, finding that the right to "bear arms" is limited to the use of arms for service in a militia, such as the National Guard. Therefore, because the plaintiffs were non-military, indivdual, gunowners, the Amendment afforded them no protection.

The D.C. Circuit Court of Appeals reversed. Judge Laurence Silberman, writing for the two-judge majority, concluded that the Second Amendment guaranteed to all individuals the right to keep and bear arms, whether or not they served in any military unit. Judge Karen Henderson dissented from the panel opinion. The full circuit court voted to deny rehearing, but four judges dissented from the denial.

In urging the Court to review the case, lawyers for the District contended that the D.C. Circuit opinion was "the first time in the Nation's history that a federal appellate court has invoked the Second Amendment to strike down any gun-control law." Pet. at 1-2. They argued that the decision created a critical split with the nine other circuits that had held that the Amendment did not protect private gun ownership.

Moreover, the petitioners argued, the decision was wrong for three reasons: first, the Second Amendment guarantees the rights of those serving in state militias; second, the Amendment does not apply against the District as it is a federal enclave rather than a state; and third, the statute does not violate the Second Amendment because it amounts to a regulation on, rather than a prohibition of, gun ownership.

Notably, the respondents joined the petitioners in asking the Supreme Court to take the case. They contended that many courts misconstrue the meaning of the Second Amendment, creating a need for Supreme Court clarification.

Although the parties agreed that the Supreme Court should accept the Heller case, they have common ground on precious little else. In fact, although the litigation is well developed, the parties do not even agree on the nature of the prohibitions they are contesting. The District defines the disputed ordinances as banning private possession of handguns, which are uniquely dangerous, while allowing possession of rifles and shotguns. The gun owners contend that the District's code outlaws possession of all "functional firearms" because it requires that rifles and shotguns be disassembled and trigger locked.

In taking the case, the Court declined both glosses and drafted its own Question Presented: "Whether the following provisions -- D.C. Code Secs. 7-2502.02(a)(4), 22-4504(a), ad 7-2507.02 -- violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

At the heart of the Supreme Court review lies its 1939 opinion in United States v. Miller, 307 U.S. 174 (1939), in which it was asked to decide whether the holder of a sawed-off shotgun who transmitted it across state lines in violation of the National Firearms Act was insulated by the Second Amendment. The Court held that he was not, relying primarily on the fact that the weapon at issue was not an "arm" as intended by the Second Amendment because it could not be used in a militia. That holding has been interpreted by gun control advocates as a vindication of their position that the Amendment applies only to militia members, while gun owners contend that it means any individual may carry a gun so long as it could be used in combat.

In the much anticipated opinion on June 26, the Supreme Court found the law unconstitutional.

"It is not the role of this Court to pronounce the Second Amendment extinct, " Justice Scalia wrote for the majority.

While acknowledging "the problem of handgun violence in this country," the majority contends that "the Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home."

The majority pointed out that "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 firearms in sensitive places such as schools and government buildings."

In one of two dissents authored by the court’s liberal block, Justice John Paul Stevens derided the majority for relying on "a strained and unpersuasive reading of the Amendment’s text."

"The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons," Stevens wrote.

In addition to Justice Stevens’ assertion that the Second Amendment protects militia-related, not self-defense-related, interests, Justice Stephen G. Breyer authored a separate dissent in which he argued that "the protection the Amendment provides is not absolute."

"Unless we believe that they intended future generations to ignore such matters, answering questions such as the questions in this case requires judgment—judicial judgment exercised within a framework for constitutional analysis that guides that judgment and which makes its exercise transparent."

At the end of his dissent, the justice also warned of "the unfortunate consequences that today’s decision is likely to spawn," including potential legal challenges to other existing gun laws throughout the country.

"I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission," Breyer wrote. "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."