District of Columbia v. Heller: Firing Blanks? - Nicole Price

• Publication year: 2009

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District of Columbia v. Heller: Firing Blanks?

I. Introduction

In 2008, after much anticipation, the United States Supreme Court confronted a split between the circuits as to the proper interpretation of the Second Amendment¹ right "to keep and bear Arms."² In District of Columbia v. Heller,³ both the majority and the dissenters rejected the theory that the Second Amendment solely protects a state right,⁴ and a narrow 5-4 majority held that the amendment guarantees an individual right to bear arms for traditionally lawful purposes, such as self-defense in the home.⁵ Sustaining the first successful Second Amendment challenge before the Court,⁶ the majority struck down two of the country's strictest gun control laws.⁷ However, Heller serves as only an introduction to clarifying this area of constitutional law as the majority left key questions concerning the scope of the right and its implications for future judicial determination.⁸

II. Factual Background

In District of Columbia v. Heller,⁹ the United States Supreme Court reviewed Second Amendment challenges to firearms restrictions enacted by the District of Columbia (District).¹⁰ The District's restrictions effectively banned handgun possession by prohibiting the registration of handguns while, at the same time, making it a crime to carry an unregistered firearm.¹¹ Further, District residents were required to keep other lawfully owned firearms "'unloaded and disassembled or bound by a trigger lock or similar device'" in their homes.¹²

The respondent, Dick Heller, as a special police officer, was authorized to carry a handgun while on duty. However, the District denied Heller's application to register a handgun that he intended to keep at home.¹³ In response, Heller filed suit in the United States District Court for the District of Columbia "seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibit[ed] the carrying of a firearm in the home without a license, and the trigger-lock requirement" to the extent that it outlawed possession of operable firearms in the home.¹⁴

The district court dismissed Heller's complaint based on a lack of standing, finding that the Second Amendment did not secure a right to bear arms outside of militia service. In a 2-1 decision, the United States Court of Appeals for the District of Columbia Circuit reversed, concluding that the Second Amendment protects an individual right to possess firearms and that the District's complete prohibition on handguns and the requirement that firearms be kept inoperable in the home, even when necessary for self-defense, violated that right.¹⁵ Accordingly, the court of appeals ordered the district court to enter summary judgment in favor of Heller.¹⁶

The Supreme Court granted certiorari and affirmed.¹⁷ In a 5-4 decision, the Court struck down the District's firearm regulations, holding that the Second Amendment protects an individual right to keep and bear arms for traditionally lawful private purposes, including personal self-defense, which is not necessarily tied to militia service.¹⁸

III. Legal Background

After the English Revolution in 1689, King William III and Queen Mary II adopted the English Bill of Rights which was prepared by the English Parliament in response to abuses of the crown by Kings Charles II and James II.¹⁹ Prompted by the Kings' maintenance of a standing army during peaceful times and the disarmament of the protestant people, section seven of the Declaration of Rights stated, "the subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law."²⁰ This provision in the English Bill of Rights has been proffered as the predecessor of the Second Amendment²¹ to the United States Constitution.²²

Similar fears of a standing army and tyranny surrounded the adoption of the Second Amendment.²³ After much debate between federalists and anti-federalists, the amendment was adopted in its final form, providing that "[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."²⁴

In interpreting this amendment, courts and scholars have subscribed to three schools of thought: (1) the "traditional individual rights" model, (2) the "limited individual rights" model, and (3) the "collective rights" model.²⁵ The traditional individual rights model interprets the amendment to protect the right of individual citizens to possess and use firearms for private purposes.²⁶ In contrast, the limited individual rights model interprets the amendment to protect an individual right to possess arms when tied to militia service.²⁷ Finally, the collective rights model rejects the notion that the amendment protects an individual right at all.²⁸ Instead, followers of this model propose that the amendment protects a right of the several states to maintain an effective state militia as a means to check the power of the federal government.²⁹

In the nineteenth century, the United States Supreme Court limited its analysis of the Second Amendment to its applicability to state or local governments.³⁰ In 1875, in United States v. Cruikshank,³¹ the Court dismissed an indictment charging two individuals with denying their fellow citizens' Second Amendment right to keep and "bear[] arms for a lawful purpose."³² The Court announced that the Second Amendment "means no more than that it shall not be infringed by Congress, [and] has no other effect than to restrict the powers of the national govern-ment."³³ According to the Court, citizens must turn to the state's police power for protection against violations of the right by other parties.³⁴ Thus, the faulty indictment failed to assert criminal charges indictable under the laws of the United States.³⁵

Eleven years later, in Presser v. Illinois,³⁶ the Court confirmed the holding in Cruikshank—that the Second Amendment only limits the federal government—and upheld a state prohibition against participation in an unauthorized militia.³⁷ Interestingly, the Court asserted that the reserve militia of the states and the United States is composed of "all citizens capable of bearing arms"³⁸ and that, regardless of the Second Amendment, the states cannot disarm the people so as to deprive the United States of this military resource and prevent the people from upholding their duties to the federal government.³⁹ In noting the transcendence of the right, the Court implicitly suggested that the right belonged to all Americans, not the states.⁴⁰

It was not until 1939, however, that the Court offered its first significant analysis of the amendment.⁴¹ In United States v. Miller,⁴² the Court examined a Second Amendment challenge to the National Firearms Act of 1934⁴³ which prohibited transportation of an unregistered short-barreled shotgun in interstate commerce.⁴⁴ Declaring that the amendment's "obvious purpose [was] to assure the continuation and render possible the effectiveness of [militia] forces," the Court held such firearms did not qualify as "arms" protected by the amendment absent evidence showing that "possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia" or judicial notice that such weapons are standard military equipment or otherwise contribute to the common defense.⁴⁵ In short, the Court required that the Second Amendment be interpreted and applied with preservation of the militia in mind and upheld a ban on an entire class of weapons having no connection to the militia or common defense.⁴⁶

Although Miller became a leading case in Second Amendment jurisprudence, subsequent courts have described the opinion as "cryptic" and criticized it for its lack of guidance.⁴⁷ In focusing on the type of weapon at issue, the Court did not address whether the Second Amendment right belonged to individuals or to the state;⁴⁸ nor did the Court discuss the defendants' membership in a militia or lack thereof.⁴⁹ Despite these ambiguities, in the seventy years following Miller, a majority of federal courts cited Miller in support of a collective rights view, while the remainder relied on Miller for the proposition that the amendment protects a limited individual right conditioned on membership in a militia or other militia service.⁵⁰

In 1997, in Printz v. United States,⁵¹ Justice Thomas acknowledged that the Court in Miller did not "attempt to define, or otherwise construe, the substantive right protected by the Second Amendment" and that the Court lacked a recent opportunity to evaluate the nature of the same.⁵² However, the Court has hinted in several past decisions that the Second Amendment protects an individual right to bear arms by listing it as one of the individual liberties protected by the Due Process Clause.⁵³ Further, in United States v. Verdugo-Urquidez,⁵⁴ the Court suggested that the Second Amendment right belongs to individuals:

"[T]he people" protected by . . . the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.⁵⁵

Yet the Court's dicta in these cases failed to quell the Second Amendment debate.

In recent years, a wave of academic scholarship has advocated the view that the Second Amendment protects an individual right to bear arms independent of militia service.⁵⁶ The traditional individual rights view was adopted by a circuit court for the first time in 2001.⁵⁷ In United States v. Emerson,⁵⁸ the United States Court of Appeals for the Fifth Circuit held that the Second Amendment protects an individual right to keep and bear arms for private purposes, even though the Court ultimately upheld...