Do you Have a Right to Own a Gun? The Supreme Court Decision in D.C. v. Heller (2008) Artemus Ward Dept. of Political Science Northern Illinois University Bill of Rights Institute Webinar November 16, 2011 Calamity Jane (1895)

Guns in America Between 35%-45% of Americans own a gun totaling roughly 1/3 of the 1 billion guns owned worldwide. A 2008 Gallup Poll showed that 3 out of 4 Americans believe they have the right to own guns.

Guns in America Not surprisingly, gun owners are more supportive of an individual right than are those who do not own guns.

Guns in America Yet at the same time, half of Americans favor more restrictive gun laws. Why?

The 2nd Amendment What does this mean?

Competing Interpretations There are generally two distinct positions on what the 2nd Amendment means: Pro-gun interests emphasize the second half of the amendment and conclude that it guarantees the constitutional individual right to keep and bear arms. Those who favor government restrictions on private gun ownership emphasize the first half of the amendment. They argue that it protects only a collective right or the states to arm their militias; there is no individual right, unless it is in conjunction with a state militia, to own firearms. Which one is correct?

United States v. Miller (1939) Until recently, the Supreme Court had only decided 6 cases dealing directly with the 2nd Amendment. In the most important of these, United States v. Miller (1939), the Court unanimously upheld the National Firearms Act (1934) which required, among other things, owners of sawed-off shotguns to register with the federal government. Justice James McReynolds wrote for the Court adopting the collective right point-of-view. The opinion reasoned that because there was no evidence to show that these particular weapons had any relationship to the preservation or efficiency of a well regulated militia, they were not protected by the 2nd Amendment. The justices also reasoned that because Article 1, Sec. 8 of the Constitution gives congress the power to call forth and arm the militia, but reserves to the states the power to appoint officers and train them, the 2nd Amendment was to aid in this process.

Miller’s Aftermath The effect of Miller was the militia view generally won out in America and federal gun control laws (such as requiring registration and banning handguns and automatic weapons) were passed and never struck down under 2nd amendment grounds. Because the Court did not recognize an individual right to keep and bear arms, state and local governments were free to regulate guns as they saw fit. As a result, pro-gun rights interest groups such as the National Rifle Association (NRA) pressed for protections on the state level. By 2008, 44 states had constitutional provisions that in one form or another protected the right to keep and bear arms. And 1/3 of these provisions have been enacted or strengthened since 1970.

District of Columbia v. Heller (2008) The Facts In 1976 the District of Columbia, concerned with the high levels of gun-related crime, passed the nation’s most restrictive gun control ordinance. The law essentially banned the private possession of handguns. Shotguns and rifles could be owned, but only if the weapons were registered, kept unloaded, and disassembled or restricted by trigger locks. The law allowed the chief of police, under certain circumstances, to issue a one-year certificate to carry a handgun. Dick Heller, a D.C. police officer, had been granted a license to carry a handgun while on duty providing security at the Federal Judicial Center. Heller applied for permission to own a handgun for self-defense, but he was refused. Claiming that the District’s statute violated his Second Amendment right to bear arms, Heller brought a suit against the city.

Robert A. Levy Heller’s case did not occur spontaneously; instead, it was orchestrated by Florida attorney Robert Levy, who wanted to test the constitutionality of the District’s gun control law. Levy had become a wealthy man in his first career as a money manager. At age forty-nine, he entered George Mason Law School and graduated first in his class. After clerking for two federal judges, he devoted his professional life to libertarian causes. Levy, who had never owned a gun, saw the District’s law as a violation of personal freedom and private property rights. He recruited six possible plaintiffs to challenge the law, but only Heller met the strict standing requirements to pursue legal action. To eliminate any possible influence over the case by the National Rifle Association and any other gun rights group, Levy funded the litigation out of his own pocket. Levy went on to become Chairman of the libertarian Cato Institute.

Oral Argument March 18, 2008. Solicitor General Paul Clement makes his argument without any notes in front of (L-R): Justices Breyer, Kennedy, Stevens, Chief Justice Roberts, Scalia, Souter, and Ginsburg. Sitting next to Ginsburg, but not pictured here, were Justices Thomas and Alito. In an interesting twist, Solicitor General Clement urged the court to accept the individual-rights view, but he also said the opinion of the U.S. Court of Appeals for the District of Columbia Circuit striking down the city's law was too broad. It held that since handguns can be defined as "arms" under the Second Amendment, they cannot be banned. Clement said such "strict scrutiny" could undermine a host of federal gun-control legislation, including restrictions on machine guns. His suggestion that the case be sent back to lower courts for more work enraged gun rights advocates, who felt betrayed, and set off a split in the Bush administration when Vice President Dick Cheney joined a brief filed by a number of Senators rebutting the government's position. Clement said it would make a "world of difference" to the viability of federal gun control if government restrictions on gun ownership did not have to meet the strictest constitutional standards.

District of Columbia v. Heller (2008) An Individual Right Justice Antonin Scalia delivered the 5-4 majority opinion, striking down the DC law and declaring a right to own handguns for self-defense in the home. The Court engaged in both a textual and historical analysis of the 2nd Amendment. Scalia explained: the “right of the people” means an individual right as it is used elsewhere in the Constitution; “arms” applies “to weapons that were not specifically designed for military use and were not employed in a military capacity” hence, non-military weapons are protected; “to keep arms” means “to retain… to have in custody… to hold; to retain in one’s power or possession” “bear” means to “carry” for a purpose – confrontation. Scalia concluded that in an era when there was no standing U.S. Army, everyone understood the right to keep and bear arms as an individual one in case a militia was necessary to fight oppressors if order broke down. “Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.

District of Columbia v. Heller (2008) The Right to Self-Defense The justices further reasoned that the inherent right of self-defense is central to having a gun in the home for protection. “[T]he inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family,’ would fail constitutional muster.”

District of Columbia v. Heller (2008) Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer dissented. He explained that the 2nd Amendment was passed as a response to fears that Congress would disarm state militias and create a national standing army. Stevens said that it has nothing to do with regulating private civilian use of firearms and does not enshrine the common-law right of self-defense in the Constitution. Hence, the right to keep and bear arms is for military purposes. Congress may regulate civilian use. “Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself would prevent most jurists from endorsing such a dramatic upheaval in the law. . . .” “Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding.”

McDonald v. Chicago (2010) In McDonald v. Chicago (2010) the Court ruled 5-3 that the 2nd Amendment right to keep and bear arms for self-defense applies to state and local governments as well as the federal government. Hence Chicago’s local gun ban was unconstitutional. Writing for four justices, Justice Samuel Alito held that the 2nd Amendment was incorporated via the 14th Amendment’s Due Process Clause. In a separate concurrence, Justice Clarence Thomas said that he would overturn The Slaughter-House Cases (1873) and incorporate the 2nd Amendment via the 14th Amendment’s Privileges and Immunities Clause.

Questions Should individuals have the right to own any weapon they choose? Do individuals have the right to carry weapons for self-defense outside the home? Do teachers and students have the right to carry weapons on school grounds?

Bibliography Barnes, Robert. 2008. “Justices Appear Skeptical of D.C.’s Handgun Ban.” Washington Post, March 19, p. A1. http://www.washingtonpost.com/wp-dyn/content/article/2008/03/18/AR2008031801354.html?hpid=topnews Epstein, Lee and Thomas Walker. 2011. Constitutional Law for a Changing America, 7th ed. Washington, DC: Congressional Quarterly Press.