District of Columbia v. Heller

This is a really big case. It has to do with the reach of the Second Amendment (about keeping and bearing arms; does it apply to individuals or just to organized militias of the States?). It is also about the District of Columbia's 1976 law banning the possession of handguns in the District. It is about the fact that the US Circuit Courts until 2007 have been unanimous in concluding that the Second Amendment doesn't give individual rights to people to keep and bear arms (it only relates to militias). But it is really about the fact that the DC Circuit, in a 2-1 panel vote in this case in 2007, bucked the national consensus by asserting that the District of Columbia law banning handguns within its bounds violated the Second Amendment right of individuals to keep and bear arms.

The two major conclusions of the 2007 decision (478 F3d 370) before the Court are: (1) whether the Second Amendment only relates to "well-regulated militias" and cannot be invoked by individuals; and (2) whether the DC ban on handguns violates the Second Amendment that now, the DC Circuit says, applies to individuals. There are loads of subsidiary issues that may be decided, but these are the two big issues. Let's see how this became an issue and how the Court is likely to rule...

By the way, here is the confusing text of the Second Amendment:

"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.”

Banning Handguns in the District of Columbia

Though the District of Columbia has regulated handguns and other dangerous weapons since 1858, the rules in question in this case only go back to 1976, when the District became a home rule entity (i.e., it became able to make laws for itself in that year. Prior to 1976, Congress did so). In 1976 the Council of the District concluded that existing gun laws did not adequately curb gun-related violence. As a result, it enacted a comprehensive law regulating firearms. At issue in this case is DC Code 7-2502.02 which prohibits four types of weapons. Here is the relevant text:

"(a) A registration certificate shall not be issued for a:

(1) Sawed-off shotgun;
(2) Machine gun;
(3) Short-barreled rifle; or
(4) Pistol not validly registered to the current registrant in the District prior to September 24, 1976..."

The Council which enacted this law also concluded that it left intact the rights of the people to own rifles and shotguns; the focus was on pistols or handguns. The Council pursued this rather drastic course because of the way that handguns were used in crimes both nationally and within the "totally urban" environment of the District. Handguns, they found, were used in 88% of armed robberies and 91% of armed assaults. It also passed two other laws, which are also at issue in this case. The first requires that, even with rifles or shotguns, they must be kept unloaded:

"Except for law enforcement personnel described in § 7-2502.01(b)(1), each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia," 7-2507.02.

Finally, the third provision being considered by the Court indicates that pistols can only be carried with a license (this would refer to security or other police personnel:

"a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed," 22-4504(a).

This Particular Case

Heller and five other DC residents challenged the constitutionality of the handgun ban under the Second Amendment. The complaint of the other five was dismissed, but Heller's alleged that he lived in a "high-crime" neighborhood and that he needed such a gun to protect himself within his home. He already owns handguns, but they are stored outside the District. He belongs to no militia.

The US District Court dismissed the complaint under the authority of United States v. Miller (307 US 174 (1939)), which held, in language that is anything but crystalline, that the Second Amendment to the US Constitution only applies to organized militias and that individuals cannot take advantage of its provisions. A divided panel (2-1) of the DC Circuit reversed. The majority aligned itself with "those who argue that the Second Amendment protects a right of individuals to possess arms for private use." It rejected the contrary view that "the Amendment protects only a right of the various state governments to preserve and arm their militias." Even though its decision conflicted with that of 9 other circuit courts, it held that the handgun ban violates its construction of the Second Amendment. It concluded that although the "protections of the Second Amendment are subject to ..reasonable restriction," the District's total ban on handgun possessin is not a reasonable restriction. It dismissed as "frivolous" the District's contention that its regulatory scheme was reasonable because residents still have access to many other weapons, among them shotguns and rifles. Its conclusion follows: once the District concluded that handguns are "arms" referred to in the Second Amendment, it isn't open to the District to ban them."

Conclusion

As I said at the outset, this is a big case. In my judgment, the Court can do a number of things. It will probably read the Second Amendment as not simply referring to militias, but that doesn't mean automatically that the Amendment is "incorporated" through the 14th Amendment to the States. But the Court may also say that it does apply to individuals but that States or other jurisdictions are free to "regulate" various firearms. I think that the 1939 Miller decision is poorly worded and argued, and that the text of the Second Amendment can most naturally be read to refer to individuals. But, even if individuals are in view in the Second Amendment, we will not have gun shops on every corner. They still can be, and will be, regulated. But I see the Court overturning Miller in this instance.

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