Thursday, June 26, 2008

Heller Opinion


1. 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.
Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation


of the operative clause. The “militia” comprised all males physically
capable of acting in concert for the common defense. The Antifederal-
ists feared that the Federal Government would disarm the people in
order to disable this citizens’ militia, enabling a politicized standing
army or a select militia to rule. The response was to deny Congress
power to abridge the ancient right of individuals to keep and bear
arms, so that the ideal of a citizens’ militia would be preserved.
Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-
bearing rights in state constitutions that preceded and immediately
followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious
interpretive worth, reveals three state Second Amendment proposals
that unequivocally referred to an individual right to bear arms.
Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts
and legislators, from immediately after its ratification through the
late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpre-
tation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor
Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-
rights interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, con-
cealed weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not 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 fire-
arms in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.
3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment. The District’s total ban
on handgun possession in the home amounts to a prohibition on an
entire class of “arms” that Americans overwhelmingly choose for the
lawful purpose of self-defense. Under any of the standards of scru-
tiny the Court has applied to enumerated constitutional rights, this
Cite as: 554 U. S. ____ (2008) 3

prohibition—in the place where the importance of the lawful defense
of self, family, and property is most acute—would fail constitutional
muster. Similarly, the requirement that any lawful firearm in the
home be disassembled or bound by a trigger lock makes it impossible
for citizens to use arms for the core lawful purpose of self-defense and
is hence unconstitutional. Because Heller conceded at oral argument
that the D. C. licensing law is permissible if it is not enforced arbi-
trarily and capriciously, the Court assumes that a license will satisfy
his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment
rights, the District must permit Heller to register his handgun and
must issue him a license to carry it in the home. Pp. 56–64.

478 F. 3d 370, affirmed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined. BREYER, J., filed a dissenting opinion, in which STEVENS,
SOUTER, and GINSBURG, JJ., joined.


Unknown said...

Like remembering where I was and what I was doing on September 11 2001 - learning that we have won this battle will also cement in my memory where I was and what I was doing when this decision was released.

Now let’s keep up the good fight and support any and all reversal of restriction suits soon to follow, this is not the end of the war but merely a great victory in our long battle.

Also - I'd like to thank you Michael for everything you are doing.

Herb R.

Anonymous said...

I have waited over 50 years to hear these words. I thought it would never come in my lifetime. What a joyful day it is!!!!

Who wants to send Scalia a nice gift shotgun for his skeet shooting?

Petey said...

In the full opinion, go read the "Opinion of the Court" part (b) on "Keep and Bear Arms." In the Adobe program, it starts on page 10, or if you are looking at the actual page numbers on the sheets, page 7. Scalia uses a prior dissenting opinion of Ginsberg against her argument to not affirm and to support an individual right. Then, he lays into Stevens on trying to justify lots of leftist mislead rhetoric. And it does a nice job of setting up a case for not just private ownership, but carry-either open or concealed. Worth the read. I cheered out loud.

Anonymous said...

I would think a nicely engraved 1911 might be appropriate.

Like NJ Larry, I did not think I would live to see this favorable decision.

Now we must move on to not electing a "Messiah". Our win is only as good as the will and intent of our elected and appointed Representatives.

Supreme Court decisions can be and are revisited. Our next President will be nominating Supreme Court Judges.

Walt R.

matt said...

My favorite quote from the Brady Bunch,

"The Heller decision, however, will most likely embolden criminal defendants, and ideological extremists, to file new legal attacks on existing gun laws. With the help of the Brady Center’s legal team, those attacks can, and must, be successfully resisted in the interest of public safety. "

I can't help but wonder, are we the "criminal defendants" or the "ideological extremists?"

I'm guessing they'd pick both...