Introductory remarks to the Fordham Urban Law Journal's volume XXXIX symposium: gun control and the Second Amendment: developments and controversies in the wake of District of Columbia v. Heller and McDonald v. Chicago: Fordham Law School--March 9, 2012.

• Jurisdiction: United States
• Date: 01 October 2012
• Author: Fischman, Harris

Introduction I. The Text of the Second Amendment II. Supreme Court Decisions Analyzing the Second Amendment III. The Supreme Court's Decision in District of Columbia v. Heller IV. The Supreme Court's Decision in McDonald v. City of Chicago V. Issues Being Litigated Post-Heller and Post-McDonald Conclusion INTRODUCTION

Thank you, Dean Martin, and thank you to the members of the Fordham Urban Law Journal for putting together this event and giving me the opportunity to speak to you all today.

What I would like to do in the time I have is to try and provide a bit of background for some of the debate on the Second Amendment that you will hear later today. To that end, I am going to try to summarize how the Supreme Court has interpreted the Second Amendment, most importantly focusing on the 2008 and 2010 decisions in District of Columbia v. Helle (1) and McDonald v. City of Chicago. (2) Please know that I speak today not on behalf of the Department of Justice or the United States Attorney's Office, and any opinions or beliefs that I express are my own and not necessarily those of the Department.

1. THE TEXT OF THE SECOND AMENDMENT

   A natural place to start is with the text of the amendment itself. The Second Amendment reads: "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." (3) The amendment contains two parts: the prefatory language, "A well regulated Militia, being necessary to the security of a flee State," and the operative part, "the right of the people to keep and bear Arms, shall not be infringed." How to interpret the relationship between the prefatory language and the operative language is the cornerstone of the debate in the Supreme Court's 2008 decision in District of Columbia v. Heller. (4) Does the operative language, "the right of the people to keep and bear arms, shall not be infringed," only apply when arms are kept or carried in connection with a military purpose? Or does the prefatory language concerning the necessity of a militia merely provide the backdrop against which the Founders felt it necessary to codify an individual right of "the people" to keep and bear arms--whether or not the use of arms is related to military use?

   The Supreme Court did not address this issue of linguistics and the Founders' intent until the Heller decision in 2008. Commentators on both sides of this issue have argued that the Court's silence on this topic suggests that one way or the other, before Heller there really was no serious debate about the meaning of the Second Amendment. Depending on your viewpoint, the Court in Heller, in finding that the Second Amendment protects an individual's right to bear arms in non-military conduct, either affirmed a well-accepted principle or, on the other hand, expanded the scope of the right under the Second Amendment, despite the plain language concerning the militia, to create a constitutionally protected individual right to bear arms when such a constitutional right had never existed before nor was intended to exist by the Founders.

2. SUPREME COURT DECISIONS ANALYZING THE SECOND AMENDMENT

   Interestingly, before Heller and McDonald, the Second Amendment rarely was a source of much interest for the Supreme Court. Indeed, prior to the 2008 Heller decision, the meaning and scope of the Second Amendment seems only to have been the focus of three Supreme Court decisions. (5) I will discuss each of those briefly.

   First, in 1876, the Supreme Court in United States v. Cruikshank, (6) a few years after passage of the Fourteenth Amendment, addressed whether the Second Amendment applies by its own force to anyone other than the Federal Government. (7) The Court concluded that the Second Amendment means no more than that the right to keep and bear arms shall not be infringed by Congress, and that states were free to protect or restrict that right under their police powers. (8)

   In 1886, the Supreme Court in Presser v. Illinois upheld a state law that forbade bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law. (9) The Court upheld the law and affirmed its holding in Cruikshank that the Second Amendment is only a limitation upon the power of Congress and the national government, and not upon that of the states. (10) The Court also found that the state law did not violate a citizen's rights under the Fourteenth Amendment. (11)

   In 1927 and 1934, Congress passed what Justice Stevens's dissenting opinion in Heller characterized as the first federal laws directly restricting civilian use of firearms. (12) The 1927 Act prohibited mail delivery of firearms capable of being concealed on one's person. (13) The 1934 Act prohibited the possession of sawed off shotguns and machine guns. (14)

   The 1934 Act came under review in the 1939 Supreme Court decision United States v. Miller, (15) the third and final Second Amendment Supreme Court decision preceding Heller and McDonald In Miller, the Supreme Court upheld the 1934 Act outlawing possession of, among other things, a short barrel shotgun. (16) The Supreme Court reasoned that since there was no evidence that a short barrel shotgun has "some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." (17) As I will discuss in a moment, how to interpret the holding in Miller is one of the central disagreements between the majority and dissent in Heller.

3. THE SUPREME COURT'S DECISION IN DISTRICT OF COLUMBIA V. HELLER

   So let's discuss Heller. In the pivotal 5-4 decision, the Supreme Court reviewed District of Columbia ordinances that generally prohibited the possession of handguns. (18) Specifically, it was a crime in Washington D.C. "to carry an unregistered firearm, and the registration of handguns [was] prohibited." (19) "District of Columbia law also require[d] residents to keep their lawfully owned firearms, such as registered long guns, 'unloaded and disassembled or bound by a trigger lock or similar device'...." (20)

   The majority opinion, written by Justice Scalia, held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. (21) Scalia reasoned that the Second Amendment's prefatory clause--"A well regulated Militia, being necessary to the security of a free State"--did not limit or expand the operative clause of the amendment--"the right of the people to keep and bear Arms shall not be infringed." (22) Scalia wrote that the operative clause's text and history--including its legislative history, post-ratification commentary, and the limited jurisprudence analyzing the Second Amendment that I just very briefly discussed--all support a reading that the Second Amendment protects an individual's right to keep and bear arms. (23) Scalia reasoned that the prefatory language announced the purpose for which the right to bear arms was codified, but did not contain all components of the right. (24) Scalia wrote, "[T]he threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right--unlike some other English rights--was codified in a written Constitution." (25) Scalia noted, however, that "[t]he prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting." (26)

   The majority found that the handgun ban amounted to a prohibition on an entire class of firearms that Americans choose for the lawful purpose of self-defense. (27) The majority opinion noted that the complete prohibition of handguns would fail either intermediate or strict scrutiny but, interestingly, declined to adopt a specific standard of review. (28) Scalia wrote, "[S]ince this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field." (29) The Court also found that the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense, and is therefore unconstitutional.

   (30)

   The majority was careful to note that, like most rights, the right secured by the Second Amendment is not unlimited. (31) Not purporting to have made an exhaustive list, the Court mentioned some of the permissible restrictions on possession of firearms, namely prohibitions on the possession of firearms by convicted felons and the mentally ill; laws forbidding the carrying of firearms in sensitive places such as schools; laws imposing conditions and qualifications on the commercial sale of firearms; and, in keeping with the majority's reading of Miller, prohibitions on firearms that are not in common use at the time. (32)

   Returning to Miller for a moment, the 1939 case held that Congress may prohibit or restrict possession of guns that have no reasonable relationship to the preservation or efficiency of a well regulated militia. (33) The majority in Heller interpreted Miller to mean that certain types of weapons are not protected under the Second Amendment--not that a weapon must be used in connection with military activity to be protected--but rather that Miller asks whether the gun at issue is of a type that is related to the preservation or efficiency of the military. (34) The majority went on to say that arms that have some relationship to the preservation or efficiency of a well regulated militia are not necessarily those weapons that are most commonly used by the military but rather those that are in common usage at the time. (35) So put another way, the majority in...