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« Counterintuitive Man says: Lobbying and lobbyists are swell! | Main | Heller Decision -- Deeper Analysis »

Gun Law Update -- Flash -- Heller Case Affirmed!

5 to 4 Decision Saves Gun Rights In America

D.C. Gun Ban Is Unconstitutional and Overturned

Second Amendment Protects an Individual Right Unconnected with Militia Service, and is preserved by a single vote

Use of firearms for traditional lawful purposes such as self defense at home is a protected right

The history, precedents, scholarship and wording of the Second Amendment support the Court's decision

The idea that a lawful firearm at home must be locked or disassembled prevents a core legal use of self defense and is unconstitutional.

The High Court instructs D.C. to let Heller have a firearm at home.


The Second Amendment like most rights is not an unlimited right and some 'longstanding restrictions' on what you can carry, where you can carry (schools and government buildings are mentioned), concealed carry, existing laws regarding felons or the mentally ill, and laws "imposing conditions and qualifications on the commercial sale of arms" are permissible.

Because Heller conceded at oral argument that a gun license would be OK if it wasn't arbitrary or capricious, a D.C. license would satisfy his request for relief, the Court tells D.C. it must permit him to register his handgun and must issue him a license to carry it at home. Any other possession or use appears to not be directly addressed, including carrying it to or from home. Conditions for such registration and license are not addressed, and are apparently left up to the city.

Lack of time frame on D.C. to act to remedy Heller's situation, and lack of directions on what they should do could lead to bizarre results or endless delays and further legal action. The cost, duration and conditions for Heller's (and other residents') license are unknown, skeptical guesses aren't pretty. Mayor Fenty has already said in a "news" conference they won't allow semi-automatics, the most popular sidearm and standard issue for the armed forces.

Full-blown gun bans around the nation are now in jeopardy, but there are few of those. Challenges to other laws, and proposals for new laws are likely, as the debate continues unabated. There are no time frames for action, which will fall to legislative process and court cases, and will likely take years.

Support for specified gun controls is dangerously great, but will be met with also great supports for individual rights to arms, self defense and lawful gun use.

Both sides get something; Antis are expected to simply walk away from concocted "collectivist" inventions and promote the "reasonable, common-sense goal" of more and stronger gun-control laws, many of which are expressly supported in the opinion, to limit rights Americans currently enjoy.

There will be little "final result" and the struggle will continue at every level.

A loud sigh of relief for recognition of an individual right was heard nationwide, but so was hope for creative new limits on the rights of the people to keep and bear arms. Both sides will be busy issuing demands, "definitive" statements, and arguing their side with vigor. Only one side will be concerned with preserving the right of the people to keep and bear arms in an uninfringed manner.

Four Justices joined in a 46-page dissent expected from Stevens, and three joined a separate 44-page dissent by Breyer, making the dissents longer than the 64-page majority opinion.

Stevens quickly abandons the individual v. collectivist theories, saying of course there is an individual right, and focuses on perceived historical errors and allowable gun-rights limitations. It clings to the militia-purpose argument for the Second Amendment.

Breyer objects on two grounds -- that the Second Amendment is about the militia and not self defense, and that gun controls are "within the zone" of legislative action. He argues that a total ban on handguns in high-crime areas is a "permissible legislative response." This is a very hasty sketch of the dissents in the interest of an early posting of the findings.

My analysis of the complete decision and dissents is ongoing and will be released soon.

CAUTION: Quickly surveyed news reports show, as predicted, little news and plenty of opinion are being shoveled; pretty (or handsome) talking heads in front of the Supreme Court building are making it up as they go with little depth of understanding of what just happened; promotion of "acceptable" gun control a common theme; ignorance of guns and gun issues abound; loops of gun pictures and target practice proliferate; few of the factual points in the headlines above are included.

No one has read the entire opinion yet, so all comments are subject to revision and likely contain errors, omissions and oversights, lack of nuance, reasoned projections, etc.

Scalia wrote the majority opinion as expected


Less than three hours ago, the U.S. Supreme Court released its 157-page decision in District of Columbia v. Heller, the landmark case on the Second Amendment.

The Court affirmed the decision of the Circuit Court below it, overturning the D.C. gun ban, and recognizing an individual right to keep and bear arms.

The Court's official summary is readable and short, and provides the best early review of the case. Here it is.


SYLLABUS (Summary)

NOTE: The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.




No. 07–290. Argued March 18, 2008—Decided June 26, 2008

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device.

Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home.

The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.


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 Antifederalists 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 interpretation. 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, concealed 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 firearms 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 scrutiny the Court has applied to enumerated constitutional rights, this 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 arbitrarily 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.

Poll results from SCOTUSblog:

Who's watching the Court's results in real time today-- Lawyer 19%; Student 13%; Other 68% Owns no guns 26%, one 6%; two 4%; more 63% NRA member 47%; not 53% Watching for Heller 95%; other 5% Pleased with decision 86%; No 14% (before details were released)

My firm Bloomfield Press is preparing a book on the Heller case, as a supplement to the 92 cases in "Supreme Court Gun Cases" by Kopel, Halbrook and Korwin (released in 2003). It will contain the complete text of Heller with all key portions highlighted throughout and a plain-English description of all holdings and dissents. The same treatment has already been prepared for the three gun cases before Heller (Brosseau, Small, Castle Rock) to keep the body of work unabridged.

Plus: The summarized arguments proposed in all 66 Heller amicus briefs (19 anti-rights, 47 pro-rights), extensive background, commentary by leading experts, and summaries of all 96 gun-related cases that have been heard by the High Court, making this a stand-alone edition. The gun-related issues in all 96 cases are also presented as answered yes-or-no questions for easy reference. Advance orders will be taken when we know what the page count will be, hopefully before the end of July.

In the meanwhile, -- if you want to help make a difference, take a look at my page on Tactics That Work

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  • Freelance writer Alan Korwin is a founder and past president of the Arizona Book Publishing Association. With his wife Cheryl he operates Bloomfield Press, the largest producer and distributor of gun-law books in the country. Here writing as "The Uninvited Ombudsman," Alan covers the day's stories as they ought to read. Read more.

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