District of Columbia V. Heller: The Individual Right to Bear Arms

Harvard Law Review, November 2008 | Go to article overview

District of Columbia V. Heller: The Individual Right to Bear Arms


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 Second Amendment to the United States Constitution

Over forty million Americans own a gun. (1) Between 55,000 and 120,000 times a year, an American uses his gun in self-defense. (2) Gun ownership is perhaps one of the oldest and most prevalent characteristics of American culture, (3) and for well over two hundred years the Second Amendment has protected some right of Americans to "keep and bear Arms." (4) Yet, in nearly every state, gun owners must comply with some form of gun control laws. (5) Last Term, in District of Columbia v. Heller, (6) the Supreme Court for the first time squarely addressed the scope of the Second Amendment's right to bear arms in striking down D.C. laws that strictly regulated handguns and other firearms. The Court unanimously held that the Second Amendment confers an individual right, (7) and a bare majority of the Court held that this right includes possessing weapons in the home for self-defense. (8)

Prior to Heller, "[t]he District of Columbia generally prohibit[ed] the possession of handguns." (9) D.C. law prohibited citizens both from carrying unregistered firearms and from registering handguns, (10) thereby creating a de facto blanket ban on handgun possession. D.C. also had a separate law prohibiting the carrying of handguns without a license and granting sole licensing power to the chief of police. (11) Moreover, D.C. law required that owners of lawful firearms keep them "'unloaded and dissembled or bound by a trigger lock or similar device' unless they are located in a place of business or are being used for lawful recreational activities." (12)

Dick Heller, a special police officer in the District, was licensed to carry a handgun during his shifts at the Federal Judicial Center. (13) However, when Heller sought to register a handgun for possession in his home, his application was denied. (14) Following this denial, Heller filed suit in federal district court. (15) He challenged D.C.'s gun control laws on Second Amendment grounds and sought to have them enjoined as unconstitutional. (16) The district court rejected the challenge, holding that the Second Amendment confers no individual right to bear arms outside the militia. (17) The D.C. Circuit reversed, holding that the Second Amendment does confer an individual right to possess arms and that all three D.C. gun law prohibitions violate that right. (18)

The Supreme Court affirmed. Writing for the Court, Justice Scalia (19) rooted his opinion in an originalist analysis of the Second Amendment. (20) He began by addressing the two key phrases in the operative clause of the amendment: "right of the people" and "keep and bear Arms." (21) Based on structural implications, (22) a natural interpretation of the words, (23) a multitude of Founding-era sources, (24) and the historical background of the amendment, (25) Justice Scalia concluded that the operative clause confers an "individual right to possess and carry weapons in case of confrontation." (26) Next, Justice Scalia turned to the prefatory clause of the amendment, which reads: "A well regulated Militia, being necessary to the security of a free State. ..." (27) Upon conducting a similar originalist analysis of this clause, he concluded that the two clauses "fit[] perfectly" in that the protection of a right to bear arms individually was a means of protecting the people's collective ability to form a militia. (28) Thus, rather than suggesting that the right to bear arms exists only specifically within the militia, the amendment generally preserves the right to bear arms, in large part to ensure that the people can always form a militia if necessary. Justice Scalia then drew on similar provisions in Founding-era state constitutions (29) and nineteenth-century commentary on the amendment (30) to confirm his reading. …

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