Do you Have a Right to Own a Gun?
The Supreme Court Decision in D.C. v. Heller (2008)
Calamity Jane (1895)
Artemus Ward
Dept. of Political Science
Northern Illinois University
Bill of Rights Institute Webinar
November 16, 2011
Guns in America
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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:
1. Pro-gun interests emphasize the second
half of the amendment and conclude
that it guarantees the constitutional
individual right to keep and bear arms.
2. 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 selfdefense, 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.
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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
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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.
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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 selfdefense 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)
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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 wellregulated 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 selfdefense outside the home?
• Do teachers and students
have the right to carry
weapons on school
grounds?
Bibliography
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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.