District of Columbia v Heller

Leadership Focus
Gun Control
A Right to Bear Arms?

Economist, March 19, 2008

GUN laws are a matter of life and death, reckoned both groups of protesters outside the Supreme Court on March 18th. One side argued that sensible curbs on gun ownership save lives. The other side retorted that if you outlaw guns, only criminals will carry them. Plus the police, of course, but gun-lovers don't find that terribly reassuring. “When seconds count, the police are only minutes away,” read one placard.

The oddly punctuated second amendment to America's constitution says: “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.” Does this mean that all Americans may own guns, or only those who serve in a militia? Oddly, given how emotive this dispute is, the Supreme Court has never settled it. But the case of District of Columbia v Heller, which was argued this week, gives it a chance to do just that.

The Heller case is an appeal from Parker v. District of Columbia, a decision in which the United States Court of Appeals for the District of Columbia became the first federal appeals court in the United States to rule that a firearm ban was an unconstitutional infringement of the Second Amendment to the United States Constitution stating:

"We conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Anti-federalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia . . .

Once it is determined--as we have done--that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them ... That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment."

This will be the first time since United States v. Miller in 1939 that the Supreme Court will directly addressed the scope of the Second Amendment. At issue is the near-total ban on handguns in Washington, DC. Dick Heller, a federal security guard who carries a gun while protecting his fellow citizens, wants one at home to protect himself. The city says he can't have one under the provisions of the Firearms Control Regulations Act of 1975, a local law enacted by the City Council and Mayor of the District of Columbia. The law limits the ability of residents to own side arms, and restricts residents, except active and retired law enforcement officers, from owning handguns. The law also requires that all firearms including rifles and shotguns be kept "unloaded, disassembled, or bound by a trigger lock."

The Supreme Court heard oral arguments in the case on March 18, 2008. Chief Justice John Roberts asked the city's lawyer how long he needs to switch off his trigger lock (which requires entering a three-digit code) when a criminal is climbing through the window. About three seconds, was the answer. "Presumably," said Justice Roberts, "you must first turn on the lamp and pick up your reading glasses?" The gallery seemed to find this most amusing.

But the case will turn on something more fundamental. The city wants the court to rule that Americans have a right to bear arms only in service of a government militia. Failing that, Washington DC wants its ban on handguns to be accepted as a "reasonable regulation of property under modern constitutional law" and "be allowed so long as it is rationally related to achieving a legitimate purpose in preserving public order and welfare" as described in Parker and upheld in recent cases such as United States v. Emerson.

Due to the controversial nature of the case, it has garnered much attention from many groups on both sides of the gun rights issue. Many of these groups have filed amicus curiae ("friend of the court") briefs, about 47--including the NRA, a majority of the members of congress, Vice President Cheney, Senator John McCain, and the governors of Texas and Montana--urging the court to affirm the case and about 20--including the Brady Campaign to Prevent Gun Violence, Democratic presidential candidates Hillary Clinton and Barack Obama, the Governors of New York, Hawaii, Maryland, Massachusetts, New Jersey, California, and Puerto Rico, and a number of city mayors, police chiefs and law enforcement organizations--to overturn it.

Several politicians from the state of Montana, including the Montana Secretary of State, have signed a joint resolution asserting that, if the Supreme Court rules against an individual-rights interpretation of the second amendment, the compact between the United States and Montana would be violated, and that the state "reserves all usual rights and remedies under historic contract law" should that occur.

One can rarely be sure what the nine Supreme Court judges are thinking, but there were several hints that at least some of them think the second amendment protects what Anthony Kennedy, who is often the swing vote, calls “a general right to bear arms”. If a majority agrees, the DC gun ban, which is the nation's strictest, will probably be struck down.

But the court's ruling, which may not come for weeks, will probably be quite narrow. Mr Roberts, for one, prefers to rule narrowly whenever possible. Too wide a decision would threaten every gun curb in the country, perhaps even the national ban on machineguns. But even a narrow ruling could affect similar bans in other cities, like New York.