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June 30, 2008

An Individual Right Rekindled

By and

"Assuming that Heller is not disqualified from the exercise of Second Amendment rights [e.g., a felon], the District must permit him to register his handgun and must issue him a license to carry it in his home." So ordered the Supreme Court this morning.

When the High Court decides matters of great national importance and interest, it is too easy to forget that its decisions concern people, who become somewhat disembodied, in the public mind, from the cases that bear their names.

We do not yet know how Heller will play out; many questions are left unanswered by the Court's decision. But we can look to Dick Heller for an indication of what's to come. And it looks very good.

Dick Heller is a special police offer in the District of Columbia who patrols the Federal Judicial Center. He is permitted to carry a handgun while on duty during the day and wished to possess one at his home to defend himself and his family. He applied for a permit, but was denied: the city's law bars the registration of handguns to nearly all private citizens.

So he sued, challenging the District's handgun ban and its requirement that all guns be stored in inoperable condition. And now it's final: Dick Heller has an individual right to keep and bear arms in his home, a right that is shared by all Americans.

The 64-page majority opinion by Justice Antonin Scalia decimates the gun control crowd's contention that the Second Amendment guarantees only a collective right, having to do with states' militias, making it all but irrelevant in the modern age.

The Amendment reads as follows: "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."

The key question, unanswered by the Court until this day, was the affect of the Amendment's "prefatory clause" ("A well regulated Militia being necessary to the security of a free State") on its operative text ("the right of the people to keep and bear Arms shall not be infringed"). In other words, does reference to "militia" somehow change the right to bear arms into one that is only available for the purposes of arming and preparing state militias, restricting it from what would otherwise appear to be a right guaranteed to every law abiding, able-minded citizen?

The Court's answer could not be clearer or more correct: It does not. In a tour-de-force of originalist interpretation and judicial restraint, Scalia's opinion traces the historical meaning of each phrase of the Amendment's text.

A "right of the people," he demonstrates, is a term of art that, as used elsewhere in the Constitution, encompasses all the people, not just those eligible for militia duty. Moreover, it refers to rights that are held by the individual each time it is used, such as the right to be free of unreasonable searches and seizures and the right to assemble and to petition the government. Reading it otherwise would make mincemeat of the settled understanding of these constitutional commandments. Thus, writes Scalia, the very first words of the operative clause strongly indicate that this is an individual right, as well.

"Keep and bear arms" are, among those who debate such things, also the source of some contention. To "bear arms," argue gun control advocates, is solely to wield arms in a military unit or, even more narrowly, to wage war. But these readings are strained, the Court correctly observes, as the text more readily yields the reading that is plain today to you or I: to have and to use them in any context, whether in the military or in the home.

So what then of the so-called "prefatory clause"? The "militia," at the time, consisted of all able-bodied men, and that it was "well-regulated" meant only that it be disciplined and trained. That such a body would be "essential to the security of a free state" was self-evident to the Framer's generation -- how better to repel invaders or resist tyranny?

But is it solely for the purpose of doing such things -- defending the states and the country in well-regulated bodies -- that the right to keep and bear arms becomes operative? And if not, why have the prefatory clause at all? Actually, writes Scalia, its presence makes good sense:

It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

That is, the individual right to keep and bear arms pre-existed the Constitution, so the Framer's dilemma was not whether to create it but whether to include it in the federal Bill of Rights. They chose to do so for a reason: to diminish "the threat that the new Federal Government would destroy the citizens' militia by taking away their arms." That is not, however, the full extent of the right, just the chief reason for its clear presence in the text.

Early commentary on the Second Amendment bears out the Court's reading. Framing-era scholars and jurists were in strong agreement -- in the rare cases that the issue arose at all, it being unthinkable at the time to significantly abridge the right to bear arms -- that the right was an individual one. Consider, for example, Justice Story's Commentaries on the Constitution, which equates the Amendment with an English right guaranteeing subjects' ability to wield suitable arms for their own defense. This is typical. It was only in later years that the meaning of the Amendment was thrown into doubt.

And that doubt is now gone.

That each individual has a right under the Constitution to keep and bear arms, however, is really only the starting point of discussion, and it is what comes after that assertion that caused so many gun-rights advocates great anxiety in the years that Heller has worked its way through the courts. No right, of course, is unlimited, but an individual right that the government may abridge for any reason is hollow.

Probably to avoid a fractured opinion -- which would have weakened the case's precedential effect -- Scalia ducked the question of exactly how courts ought to weigh government policies that abridge the right to bear arms, but that is not to say the Court's opinion is silent on the issue -- far from it.

Rather, it is firm, loud, and clear: "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." The same holds true for D.C.'s requirement that guns kept in the home be disassembled or made inoperative by trigger locks at all times. These are strong conclusions, ones that counsel great optimism that this will not be a hollow right. Laws that would prevent Americans from protecting their homes using the weapons most appropriate to that task will not past muster.

Certain limitations on the right are also permissible according to the same reasoning. Thus the opinion is careful to state that it should not "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 certain licensing requirements.

Between those two extremes, however, lies a great gray area of uncertainty. Looming large but confined to a mere footnote is the question of whether the Second Amendment is "incorporated" against the states at all, as opposed to the federal District. An 1875 decision held that it was not, but at the time, neither was First Amendment. The continuing vitality of that view is doubtful, but that it is likely to be tested in the years ahead, perhaps concerning Chicago's handgun laws. Probably any court denying the incorporation of the Second Amendment would be pilloried, and rightly so.

Another uncertainty is what comes next for the residents of D.C., this author among them. The city is plagued by crime, and this summer has witnessed several weekends of record violence, particularly in the Northeast quadrant of the city. The evidence is clear that the gun ban never worked, and the Court was clear that it is unconstitutional, but the District government will doubtlessly resist deigning to allow its law-abiding citizens -- i.e., those District residents who are not armed to the teeth -- our full constitutional rights. The U.S. Congress has the opportunity, if it so wishes, to step in and make the District do what is required and just on a reasonable schedule.

And perhaps the greatest uncertainty is the status of much of state and federal law concerning the licensure of firearms and the rules concerning their transportation and concealment. The Court's opinion offers no answers, and even with a standard of review, questions of this nature would be difficult to predict. Only time will tell.

But that is not a bad thing. For years, government officials at all levels have considered the Second Amendment as a dead letter and acted accordingly, and it will take time for the vast cannons of laws that they have built to be disassembled, piece by piece, until all that remains -- those laws that do not unjustifiably infringe on the right of law-abiding individuals to protect themselves and their families -- satisfies the Constitution's mandate.

Today, however, was the big day, and the rest is just details. Dick Heller will, sooner or later, get his license, and all Americans can rest content knowing that their sometimes-pushy cities and states are now (probably) powerless to take away their right to defend their homes. It is a sweet day for freedom.

Andrew Grossman is a Senior Legal Policy Analyst at the Heritage Foundation.

First appeared in Human Events

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