Meet Your Second Amendment: D.C. v. Heller Decided (Updated)


It’s a momentous day. With the Supreme Court’s landmark Second Amendment decision this morning in District of Columbia v. Heller, American constitutional law has just gained a newly enforceable, individual liberty. The imposition by the U.S. government of a U.K.-style system of sweeping gun bans and prohibitions on armed self-defense is now off the table. Such laws are a violation of the U.S. Constitution.

In this post, I want to look back at the issues I discussed in my earlier CoOp post, “What to Watch for in D.C. v. Heller,” and offer some brief thoughts about how they featured in Justice Scalia‘s opinion for the Court. Before I begin, let me recommend Larry Solum’s typically thoughtful analysis of many of the interpretive techniques employed in the Heller opinion.


1. Recognition of an Individual Right to Arms: You bet. The right is recognized as squarely individual; the “militia” referred to in the preface was and is a popular militia. The Court rejects any requirement of participation in the National Guard or another organized militia.

2. What Purposes Does the Right Protect? Primarily private purposes. Although the Court acknowledges in passing that an armed populace is “better able to resist tyranny,” Maj. Op. at 25, the great weight of its discussion of the right to arms focuses on “the core lawful purpose of self-defense.” Id. at 58. See also id. at 63 (Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.“)

3. Whither Miller? This is an extremely interesting discussion. Maj. Op. 49-53, 55-56. The Court does not reject its opaque 1939 precedent in U.S. v. Miller, but dismisses the contention that Miller limited the right to arms solely to “military purposes.” It describes Miller as “stand[ing] only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.” Id. at 50. There is a measured, but distinct rebuke of the decades of lower federal court opinions that “overread Miller,” a “virtually unreasoned case,” to toss aside claims to an enforceable Second Amendment right to arms. But the Court does some interpretive recasting of Miller, as I predicted: Miller’s “in common use” criterion becomes ” ‘in common use at the time’ for lawful purposes like self-defense.” Id. at 52. Thus machineguns can be excluded from constitutional protection, even though they were obviously “useful in warfare in 1939.” Id.

In the same vein, the Court recognizes a historical exception to the right to arms that applies to “dangerous and unusual weapons,” Id. at 55. (That conjunctive form may prove important — dangerous and unusual.) On the other hand, the Court stresses that defensive weapons that did not exist in 1791 may nevertheless be protected today. The basic category of “Arms” appears to be very broad: “[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. at 8. The Court approvingly cites broad founding-era definitions of “Arms” such as Timothy Cunningham’s (1771): “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

Notice how powerfully this language suggests a Second Amendment right to possess, not only firearms, but also other common personal defensive weapons such as knives and pepper spray.

4. What Level of Scrutiny Applies? Intermediate or strict scrutiny. They’re not saying which yet. The key passage is Maj. Op. at 56 & n.27. The Court says the D.C. handgun ban violates “any of the standards of scrutiny that we have applied to enumerated constitutional rights.” A footnote cites the classic discussion of heightened scrutiny in U.S. v. Carolene Products Co. (1938). Id. at 56 n.27. This discussion leaves lower courts free to conclude, by analogy to First Amendment case law, that strict scrutiny applies to Second Amendment claims, but they also would not violate the import of the Heller opinion by adopting intermediate scrutiny instead.

5. Will the Court Actually Strike Down the Challenged Provisions of D.C. Law? Yes. The Court struck down the handgun ban; and also the requirement that firearms in the home be kept locked and unloaded/disassembled — to the extent the latter requirement prohibits citizens from “rendering … firearm[s] in the home operable for the purpose of immediate self-defense.” Id. at 64. I predict litigation about the limits of that “immediate self-defense” proviso. I could wish that the Court had simply said, look, Heller can’t realistically expect to defend himself against criminal violence in the home unless he is allowed to have one firearm that is loaded and ready to be used in self-defense, so the Second Amendment protects his right, not merely to regularly carry a handgun in his home, but to regularly carry a loaded handgun in his home. The Court did not squarely say that, so the lower courts may have to piece out what level of readiness and access is realistically required for “immediate self-defense.” In making that judgment, they will need to keep in mind the Supreme Court’s vigorous affirmations of the right to home self-defense throughout the Heller opinion.

6. Are “Keep” and “Bear” Separate Rights? The two verbs receive separate weight in the Court’s analysis. One of the big points of contention between the majority and the dissenters is whether “keep and bear arms” describes “a unitary right to possess arms if needed for military activities and … use them in conjunction with military activities,” Stevens Diss. at 11 (punctuation omitted), or instead a right to “have weapons,” as well as a right to “carry” them for defensive purposes. Justice Scalia (the author of Crawford v. Washington) rather intriguingly phrases this as a right to use arms for “confrontation.” Maj. Op. at 8, 10.

So what is the scope of the right to “bear” arms, above and beyond the right to “keep” them? It clearly includes the right to “use [arms] for the core lawful purpose of self-defense” in the home. Id. at 58. What about carrying them outside of the home? Justice Scalia notes that 19th-century state courts regularly upheld prohibitions on “carrying concealed weapons.” Id. at 54. The opinion does not mention that many state courts hold that the right to bear arms obligates governments to allow some form of weapons carry — if concealed carry is banned, then “open carry” (holstered on the hip) must be allowed, and vice versa.. After Heller, It is open for gun rights proponents to argue that the right to carry either open or concealed (depending on local law) is entitled to constitutional protection – particularly if the Second Amendment gets incorporated against the states.

7. Blocs of Justices. Several surprises here. I expected one or more separate concurrences to the majority opinion, but there were none. It seems the five majority Justices put great store on speaking through a single, clear opinion of the Court. There was also no rank-breaking or diversity of approach among the liberal Justices. All four joined Justice Stevens’s dissent arguing that the Second Amendment does not protect arms possession for private purposes, and Justice Breyer’s dissent arguing that, even if self-defense is a protected interest, the D.C. handgun ban is reasonable and constitutional.

8. Hints About Other Federal Gun Laws? As predicted, the Court expressly distinguished the federal ban on post-1986 machine guns, 18 U.S.C. 922(o), and the federal felon-in-possession ban, 18 U.S.C. 922(g)(1), indicating that both are safe from constitutional challenge. Maj. Op. at 52-55. The Court extended similar reassurances about laws prohibiting “the carrying of firearms in sensitive places such as schools and governments buildings,” id. at 54, and regulations of commercial purchases such as background checks. Id. at 54-55.

9. Hints About Incorporation: Another punt to the lower courts, though the Supreme Court included somewhat more pro-incorporation discussion than I expected. In its historical analysis of evidence of the public understanding of the Second Amendment, the Court discussed at length the legislative treatment of the right to arms in the aftermath of the Civil War. See Maj. Op. at 41-44 (discussing, inter alia, the history of black disarmament in the Reconstruction South, and the references to the right to arms in the Freedmen’s Bureau Act of 1866). This is precisely the sort of historical evidence relied upon by scholars and researchers who argue that the Fourteenth Amendment was intended to incorporate the right to arms against the states. The Court’s one express mention of the incorporation issue comes in an exquisitely ambiguous footnote:

With respect to [the nineteenth-century case of U.S. v.] Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.

Id. at 48 n.23 (emphasis added) (citations omitted). So on the one hand the Court says that the Fourteenth Amendment inquiry is “required” by its later (20th century) incorporation decisions, yet it also noted that post-Cruikshank, 19th-century cases reaffirmed that the Second was not incorporated — but those cases did not perform the “required” inquiry either! I read this as a very comprehensive punt to the lower courts; they can either take up anew the question of Second Amendment incorporation in coming cases — “the Court instructed us that this inquiry is ‘required’!” — or they can defer to Presser et al. and refuse to apply the “selective incorporation” framework to the Second Amendment until the Supremes officially overrule those cases — “the Court noted that later decisions ‘reaffirmed’ Cruikshank!” A district court judge or circuit court panel could choose either path, and still plausibly claim to be following Heller.

10. The companion petition on the issue of standing, Parker v. D.C. Today the Court relisted and distributed for conference the petition in Parker, which relates to the potential standing of the five other plaintiffs (besides Dick Heller) who were originally included in the litigation. I predict some action on Parker tomorrow in the Court’s final round of orders before its summer recess — probably a “GVR” order that will kick the issue of the other plaintiffs’ standing back down to the D.C. federal courts to reconsider in light of the Heller opinion.

MEDIA NOTE: I’ve been interviewed by National Public Radio about the Heller decision; the segment should appear on NPR’s All Things Considered this afternoon or Morning Edition tomorrow a.m. Audio will be available here. I’ll be interviewed tonight on NRA News’s “Cam and Company” at 10:40 p.m. EST. I’ll be discussing how to choose a good car wax.

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15 Responses

  1. MannyJ says:

    Get used to police breaking down even more doors with even more unnecessary force and even less warning. They’ll argue, and most judges will accept, that if people have a right, the police have to assume they’ll exercise it, and it’s not fair to require the police to put themselves in more danger than they have to, so we should now treat EVERYONE under suspicion the way we already treat crack-house residents.

    Admittedly, they were 90% there already.

  2. RAH says:


    You mention the open language on arms for knives, pepper spray and tasers. Since they said arms is mutable then that can apply to any future weapons used by a single person. This can be used to challenge numerous states laws that restrict the carry of knives and civilian possesion of tasers. Plus any defensive armor is allowed. Many states like Maryland tried to prohibit people the use of body armor.

    Unusual and dangerous is not necessary full auto weapons it could be interpreted to grenade launchers and that type of unusual civilian arms. Machine guns are common and used in this country by police and those who pay the tax and get the permits.

  3. Alan says:

    IANAL, but I don’t see the door shut on overturning the post-86 MG ban in the Heller opinion. We’re may be stuck with registration of some kind, but the 86 ban makes no sense in light of Heller, especially when pre-86 NFA weapons ARE legal for civilians to own.

    If a machine gun was made and registered before the 86 ban, it is legal for me to own, but if it was made after the ban it’s illegal. Not to mention the $200 NFA tax, the sole purpose of which was to price machine guns out of the market for regular people in 1934.

    Talk about arbitrary and capricious!

  4. Jack Burton says:

    Many states that allow CCW still think they have the power to ban the legal carrying of guns within a church. Maybe we can now see the dismissal of that claim to power. Here’s a layman’s thoughts about it.

  5. MarkJ says:

    Just an idle question: in what ways, if any, might today’s decision affect Canadians?

    I can’t help but think that many Canadians are now saying to themselves, “If Americans now have a clearly established individual right to own and bear arms, why can’t we as well?”

  6. rosignol says:

    I doubt this will have much impact north of the border, although I expect more than a few Canadians are looking at our 1st Amendment and wishing they had one of their own.

  7. JVDeLong says:

    I think you are too optimistic in saying: “The imposition by the U.S. government of a U.K.-style system of sweeping gun bans and prohibitions on armed self-defense is now off the table.”

    Stare decisis is a conservative virtue — given an Obama-named Supreme Court, all conservative decisions, especially the close ones, are subject to revisiting.

  8. JVDeLong says:

    I think you are too optimistic in saying: “The imposition by the U.S. government of a U.K.-style system of sweeping gun bans and prohibitions on armed self-defense is now off the table.”

    Stare decisis is a conservative virtue — given an Obama-named Supreme Court, all conservative decisions, especially the close ones, are subject to revisiting.

  9. Brett Bellmore says:

    Yes, stare decisis only works one way, an Obama court would overturn Heller in an instant.

    It’s quite fortunate that the two most elderly Justices were both in the minority; Running the actuarial calculations, Obama will likely get to replace one, quite possibly two, of the minority Justices, but probably will not get a crack at the majority seats.

    Though accidents do happen. As do court packing schemes, which there is already talk of.

    Man, if the Democrats get Heller overturned by packing the court, I’m moving overseas; I have a kid on the way, and don’t want to raise him in the middle of a civil war!

  10. Bart DePalma says:

    The Court noted when describing Cruikshank on page 47 that the decision only held that the Bill of Rights including the Second Amendment “by its own force” did not apply to the States and later in footnote 23 further noted that Cruikshank “did not engage in the sort of 14th Amendment required by our later cases.” In fact, Cruikshank and Presser did not address 14th Amendment incorporation at all as noted in Miller.

  11. Dr Ruger says:

    Justice Stevens’ dissent is severely flawed and it is scary to think that one more dissenter would have effectively repealed the second amendment. Stevens’ premise is that the 2nd states that the ‘right’ extends to only bone fide miltia members to store the weapons of war within their homes to to engage in armed conflict on behalf of the state/federal government in defense of what those governments dictate. The absurdity of a ‘right not to be infringed’ declared in the Constitution to apply to service in a bone fide military organization is hard to comprehend. Why would the Framers need to guarantee the right of someone in a combat miltia the ‘right’ to be in a combat militia fighting? Does that then mean that you have a right to be in a militia if you so want that cannot be infringed? First let’s ask who was the militia? At the time it was ordinary, able citizens who voluntarily formed defensive units. They provided their own weapons. Yet Stevens equates them to State National Guards under the direction of the governor. Would this then mean that Guardsmen can ‘keep’ their weapons of war at their homes? Would this then include mortars, TOWs, Bradleys & M60-A2’s? Or, if it truly only applies to militias, then folks in the Michigan and other militias should have the right to keep & bear all manner of offensive & defensive weapons including Stingers, Tomahawks & MRVs. If only Guardsmen have the ‘right not to be infringed’ to store war weaponry at their homes and to fight in active combat for their country, what about the NAVY, ARMY, AF & Marines? What would these guardsman be allowed to fight for……perhaps only things that Justice Stevens sanctioned……perhaps a women’s right to choose (abortion on demand)? The militias could shoot abortion protesters. Maybe the ‘rights’ of the enemy combatants to go before a US judge? How about forced school busing? Or better yet, enforce the elimination of ‘hate speech’ and the implementation of the ‘fairness doctrine’. But Stevens does not have to worry about being patently ridiculous, he’s a Supreme Court Justice appointed for life so he can be as dumb as a box of hammers and we can’t do anything about it.

  12. Joey P. Child says:

    Mike, you state: “Thus machineguns can be excluded from constitutional protection, even though they were obviously ‘useful in warfare in 1939.'” and “As predicted, the Court expressly distinguished the federal ban on post-1986 machine guns, 18 U.S.C. 922(o), and the federal felon-in-possession ban, 18 U.S.C. 922(g)(1), indicating that both are safe from constitutional challenge.”

    I think you may have “overread” (tongue firmly in cheek) Heller on this point. Note that, when Justice Scalia lists the types of “long-standing” prohibitions that Heller should not be read to overturn on pp. 54-55 of the Court’s opinion, the automatic weapon ban is conspicuously absent.

    Moreover, understanding the Miller test as defined by Heller to be “whether the weapon currently (i.e., at the time of the challenge) is a weapon typically possessed and in common use by law-abiding citizens for lawful purposes,” it would be an absurdity for the Court to rule that automatic weapons do not meet this standard and therefore may be prohibited, when the reason that they cannot meet the standard (i.e., are not typically possessed and in common use) is the existing federal prohibition. That would be circular logic that any thoughtful observer should see through.

    I believe that the prohibition/severe restrictions on automatic weapon possession and use is subject to challenge under Heller. I know that a lot of law-abiding citizens who own guns, at least in part, for both of the two central reasons discussed in Heller–personal defense and defense against tyranny–would very much like to own automatic weapons, but are prevented from doing so under federal law.

  13. Brett Bellmore says:

    It would be circular logic, that’s true. But that’s not the sort of thing that stops the Supreme court. With 4 of the ‘Justices’ amounting to a fixed block willing to rule ANY degree of gun regulation, no matter how onerous, constitutional, all it takes is a 1 of 5 minority among the remaining Justices to endorse any particular infringement. I suspect it’s not going to be all that hard to persuade Kennedy to vote against the right to own machine guns.

  14. Sam Draper says:

    I agree that there is some ambiguity about M16s in the opinion. If they really are serious about an originalist reading of the amendment, historically laws prohibited the carrying of “dangerous and unusual weapons” but not the keeping of them. You could own anything you desired; you just could not necessarily carry it around town.

    I think it is interesting that the paragraph starts out talking about M16s, which realistically are not any more dangerous than most semi-automatic sporting rifles, and ends up talking about anti-tank and anti-aircraft weapons. As far as being dangerous, the M16 is basically identical to legal AR-15s or Min-14s; it does not make sense to lump it in the same category with Javeline or Stinger missiles.

  15. tatter says: