Lecture 28 Chapter 9 The Right to Bear Arms

This Lecture Chapter 9 Pages 379-389 Right to Bear Arms District of Columbia v. Heller (2008) Does it apply to States?

What does this mean? Is this a personal or collective right? Must ownership be within the state militia? Or is it more for self-defense? If it is a right, how much can be regulated? And this is a major political issue

United States v. Miller (1939) Challenge to the National Firearms Act of 1934 Put a large tax on certain weapons Prohibited firearms from being interstate transported if unregistered The Court unanimously upholds the law, by McReynolds, J. They take the collective theory on the 2nd Amendment

Printz v. United States (1997) This was a Congressional power case But Thomas, J. added a footnote to a concurring opinion stating that he believes history shows this right to be a personal one But other than this, the Court was rather silent on the 2nd Amendment until 2008

District of Columbia v. Heller (2008) Background The District of Columbia had a very strict gun control law Banned all private handgun possession Allowed for very limited concealed carry permits Heller filed for one for personal protection, but was denied He sued as a test case for the 2nd Amendment He loses at the D.C. Circuit level and appeals Professor Heller- not the Heller in this case!

District of Columbia v. Heller- II Arguments For the District of Columbia D.C. is not a state, so the militia argument fails Miller protects only the right to bear arms in relation to a militia, not personally Even if it does apply to a personal right, the Court should still uphold the law For Heller The Second Amendment protected an individual right that existed before adoption of the Constitution The preamble is not a limiting device The Second Amendment protects the right to own guns for self-defense that could be used in militia service

District of Columbia v. Heller- III Scalia, J. for a 5-4 Court He divides up the amendment Operative clause Right of the people used many other times in the Constitution This means not a collective right Holder of the right is the people Applies to weapons not specifically designed for the military Keep and bear to have weapons, and carry This adds up to a self-defense right

District of Columbia v. Heller- IV More from Scalia, J. Prefatory Clause A militia was assumed to be all adults males And was presumed to have already been in place Relations between the two clauses Does not apply only to an organized militia Look to state interpretations Self-defense inherent to the amendment Allows for reasonable regulations, but not outright bans Matters not that today’s weapons not around back then

District of Columbia v. Heller- V Stevens, J. dissenting, joined by Souter, Ginsburg, and Breyer, JJ. The Amendment was designed to keep Congress from disbanding state militias Not for the right of self-defense He calls out the majority for little new evidence to change precedent This should be a policy choice for D.C. No evidence the Framers meant this Breyer, J. dissenting, joined by Stevens, Souter, and Ginsburg, JJ. D.C. had ample grounds to choose this law The law is not unreasonable

What about the states? Should this right be incorporated against states/localities? McDonald v. City of Chicago (2010) This case says the answer is yes, by a 5-4 majority On a similar issue of handgun banning This case has led to many legal challenges on this issue The Court has not yet taken up a new 2nd Amendment case However, they have led stand several laws that engage in gun control In short, total bans on handguns unconstitutional, but other regulations have been upheld (so far)

Next Lecture Chapter 10 Pages 390-401 Foundation of the Right to Privacy Griswold v. Connecticut (1965)