Signs of the Times - Justices Reject D.C. Ban On Handgun Ownership
June 2008
U.S. Supreme Court: Justices Reject D.C. Ban On Handgun Ownership
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"The Supreme Court struck down the District of Columbia's ban on handgun possession yesterday and decided for the first time in the nation's history that the Second Amendment guarantees an individual's right to own a gun for self-defense.

The court's landmark 5 to 4 decision split along ideological grounds and wiped away years of lower court decisions that had held that the intent of the amendment, ratified more than 200 years ago, was to tie the right of gun possession to militia service.

While the decision left for another time how the standards by which gun-control laws nationwide will be evaluated, it was decisive about the District's law, the strictest in the country. In addition to prohibiting ownership of handguns, the city also requires that shotguns and rifles be kept unloaded and disassembled or bound by a trigger lock.

"We hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense," Justice Antonin Scalia wrote. He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

Excerpts from the Majority Opinion, Justice Antonin Scalia

"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."

"Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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 firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

"We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. . . . But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

The Second Amendment, Scalia said, "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

The opinion, the last and perhaps most anticipated ruling of the court's current term, delivered a bold and unmistakable endorsement of the individual right to own guns. At the same time, it raised as many questions as it answered about the ability of government to restrict gun ownership to promote public safety, a point made in detailed rebuttals from the liberals on the court, both from the bench and in two lengthy dissents.

Justice Stephen G. Breyer said the decision "threatens to throw into doubt the constitutionality of gun laws throughout the United States," and he called that a "formidable and potentially dangerous" mission for the courts to undertake. He was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

 Justice John Paul Stevens, Dissenting

"Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden."

"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, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a 'law-abiding, responsible citize[n]' the right to keep and use weapons in the home for self-defense is 'off the table.' Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District's policy choice may well be just the first of an unknown number of dominoes to be knocked off the table."

Justice Stephen G. Breyer, Dissenting

"Far more important are the unfortunate consequences that today's decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission."

As if to underscore the point, D.C. officials, who expressed disappointment with the ruling, vowed to replace the now-voided gun ban with strict handgun regulations, raising the possibility of further litigation.

Robert Levy, a libertarian lawyer who had developed the strategy for challenging the D.C. law and recruited security guard Dick Heller and others as plaintiffs, said the court's ruling should be clear: "The District may not attempt to solve its crime problems by violating the rights of law-abiding citizens."

The Bush administration had asked the court to recognize the individual right, and Scalia's broad, history-filled opinion went further. But the administration wanted the case sent back to a lower court for a fuller hearing on whether the D.C. law violated such a right.

Still, President Bush seemed pleased with the result. "As a longstanding advocate of the rights of gun owners in America, I applaud the Supreme Court's historic decision today confirming what has always been clear in the Constitution: The Second Amendment protects an individual right to keep and bear firearms," he said in a statement.

The reaction from the presidential campaign trail was supportive, if a bit more so on one side than the other.

Sen. John McCain (Ariz.), the presumptive Republican nominee, called it a "landmark victory" for Second Amendment rights and criticized his rival's home town. "Today's ruling . . . makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans," he said.

Sen. Barack Obama (Ill.), the Democrats' all-but-certain nominee, issued a statement saying that "I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures."

It may not be surprising that both men would find something to like in the ruling, because Scalia concentrated on building a historical case for finding an individual right in the amendment's ambiguous 27 words. Setting standards for how courts and legislatures should decide the constitutional restrictions on gun control will evolve, he said.

"Since this case represents this court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field," Scalia wrote.

One practical outcome of that strategy is that it probably kept Kennedy, who seemed at oral argument to be supportive of the individual right but worried about standards, with the majority.

In 56 pages of the 64-page opinion, Scalia analyzed the historical and grammatical underpinnings of the amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Scalia drew on years of scholarly research to conclude that the amendment's opening clause about the need for a ready militia was only one of the reasons that the Framers recognized what he argued was a preexisting right to arms.

"Does the preface fit with an operative clause that creates an individual right to keep and bear arms?" Scalia wrote. "It fits perfectly."

Stevens rebutted Scalia in 46 pages of his own, and the two engaged in a line-by-line battle over the meaning of the amendment. "When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia," Stevens wrote, adding that it meant "no more than that."

Mark Tushnet, a Harvard law professor who recently wrote a book about the Second Amendment, said the debate "showed why lawyers shouldn't be historians," noting that Scalia and Stevens each wrote as though "there's only one way to view what happened in 1791."

Stevens and especially Scalia often made their points in caustic and dismissive language. Throughout his opinion, Scalia used terms such as "frivolous" and "absurdity" to describe his opponents' legal reasoning.

Stevens made his unhappiness known by reading parts of his dissent from the bench, and he pointedly recalled for his conservative colleagues Justice Felix Frankfurter, whom he called a "true judicial conservative."

The two also sparred over the court's last look at the Second Amendment, in the 1939 case United States v. Miller. Scalia dismissed it as a halfhearted examination that did not consider the amendment's historical origins, while Stevens said that "hundreds of judges have relied on" it to view the amendment's guarantee as related to militia service.

The U.S. Court of Appeals for the District of Columbia Circuit, whose decision the justices upheld yesterday in District of Columbia v. Heller, was the first to use the individual-right theory to strike a local gun-control law.

How other restrictions will fare under the court's new directives is unclear.

Scalia said the opinion should not be read to cast doubt on "longstanding prohibitions" on gun possession by "felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." He added that the list was not meant to be exhaustive.

He also said the court recognized limitations on the right to keep and carry arms, and he indicated that federal bans on weapons such as machine guns may not be threatened.

But the majority declined to set a level of scrutiny by which judges should evaluate the constitutionality of gun restrictions that governments may set. It rejected Breyer's proposal to ask whether the statute burdens the right out of proportion to the "salutary effects" upon government interests.

Breyer said the District's law would have met that burden.

But Scalia said one clear lesson from the decision is that the law went too far.

"The enshrinement of constitutional rights necessarily takes certain policy choices off the table," he wrote. "These include the absolute prohibition of handguns held and used for self-defense in the home."" (Robert Barnes, The Washington Post, June 27, 2008)

Comments? Questions? Write me at george@loper.org.