District of Columbia V. Heller and the 2nd Amendment

By Spector, Elliot | Law & Order, February 2009 | Go to article overview

District of Columbia V. Heller and the 2nd Amendment


Spector, Elliot, Law & Order


On June 26, 2008, the United States Supreme Court in the case of District of Columbia v. Heller, 128 S.Ct 2783 (2008), and in a 5/4 vote, held that the Second Amendment protects an individual's right to possess firearms for traditional lawful purposes.

The District of Columbia law in question banned handgun possession by making it a crime to carry an unregistered firearm and prohibited the registration of handguns. The law authorized the police chief to issue one-year licenses and provided that no person could carry a handgun that was unlicensed. It further required residents to keep lawfully owned firearms unloaded and disassembled or bound by a trigger lock.

Dick Heller, a special police officer authorized to carry a handgun on duty at the Federal Judicial Center, applied for a registration certificate to keep a gun at home. His application was refused. He sued the district, challenging three separate sections of the district firearm law. Two of the restrictions were found to violate the Second Amendment right to bear arms.

The first unconstitutional restriction required that the lawful owner of the firearm keep his weapon unloaded and disassembled or bound by a trigger lock or similar device, unless it was kept in the place of business or being used for lawful recreational purposes. The constitutional issue regarding this restriction was whether the Constitution requires an exception allowing someone to render a firearm operational when necessary for self-defense. In other words, would the requirement be unconstitutional because it effectively prevents people from protecting themselves in their homes with a handgun?

The second restriction, a prohibition on registration within the district, would have the practical effect of preventing people in the district from possessing handguns. The third restriction with regard to licensing was rendered moot as the district provided assurance that respondent could obtain a license as long as he met statutory eligibility criteria and because the respondent conceded that the criteria were facially constitutional.

The court held "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 selfdefense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the district must permit him to register his handgun and must issue him a license to carry it in the home."

At the heart of the court's opinion is the right to self-defense. Banning handguns, the weapon of choice for selfdefense, and/or requiring that guns be kept inoperable at all times, would make it impossible for citizens to use such guns for the purpose of selfdefense.

The basis of the court's decision is not clear, unequivocal or obvious by any stretch of the imagination. The narrow 5/4 vote and vehement dissent is indicative as to how fragile the ruling may be. Reading the decision is like listening to a political debate. Just as one who favors one candidate over another listens to their culled facts and arguments only to ultimately leave the debate agreeing with the side they have always preferred, the reader of this decision will find little to change his pre-reading opinion.

Those who will most relish the arguments are legal historians. The majority and dissent reached back to 17th and 18th century dictionary terms, state laws, pre-colonial English laws and commentaries, newspaper editorials and articles and state constitutions drafted in the 1 8th and early 1 9th century. The justices also sparred over preCivil War case law and post-Civil War legislation.

It is remarkable that in light of all of the firearms prosecutions, licensing, revocation, registration and other firearms-related cases brought within the past 217 years that the specific issues in this case have never been addressed by the Supreme Court and that there is so little, even tangential, precedent. …

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