18. August 2014 · Comments Off on 2nd Amendment Jurisprudence in a Post-Heller America · Categories: Court Cases, Policy · Tags: , , , ,

When the Supreme Court makes a ruling, legal reasoning on the subject of that ruling does not stop. Lower courts begin to interpret and apply the precedent, and to shape what that ruling really means. District of Columbia v Heller is no exception. Courts have ruled on 2nd Amendment issues several times in the years since. These rulings are fleshing out a lot of the vague areas of law that the Heller decision did not address.

In both the Heller and McDonald (a case that extended the Heller ruling to the states) opinions there were several regulations mentioned as specifically allowable. A review of post-Heller legal cases found that more than 80% were decided in favor of the challenged gun regulation on the basis of a specific inclusion in the Heller opinion.

Illustration by darktaco at RGB Stock Photos.

Illustration by darktaco at RGB Stock Photos.

Since Heller, this list of “presumptively lawful” regulations has been referred to in cases validating prohibitions on gun sales to users of controlled substances, prohibitions on gun possession by domestic abusers and laws providing for other forms of gun control. However, the list of allowable regulations enumerated in Heller was not intended to be exhaustive, and several courts have had to rule on laws that were not on the list of “presumptively lawful” regulations.

One ruling on these types of regulations occurred as a result to a challenge to New York gun laws prohibiting possession of “assault weapons” (defined by the law in New York in a manner stricter than the norm), expanding background checks and limiting the magazine capacities to a maximum of seven rounds. The court found that the assault weapon ban was reasonably connected to the cause of public safety. It did, however, strike down the capacity limit.

Another ruling in favor of gun regulations occurred as a result of a new challenge to Washington DC’s stringent gun control laws, revised after the Heller decision. This challenge was brought forth by the same man who originally challenged the laws, and has become popularly known as Heller II. In Heller II, the district court ruled that the District’s strict licensing requirements for firearm ownership did not violate the Second Amendment.

There is no clear test for determining the constitutionality of gun control laws. Judges use several tests to determine if a law is unconstitutional, and the one that applies the highest standard is known as “strict scrutiny.” While some courts have applied this test, no gun control laws have been overturned under “strict scrutiny” since Heller.  Instead, courts using this test have allowed for the laws to exist due to public interest as well as “specific tailoring” to classes of people at higher risk for violent behavior.

Judges have used many different tests and forms of logic in determining their rulings post Heller. Without specific guidance from the Supreme Court, it is likely that the nature and limits of Second Amendment rights will continue to be a confusing question for the Federal courts. However, the overall picture painted by the judiciary thus far is that gun control laws in America are almost always constitutional. Many gun rights activists celebrated the decision in Heller, thinking that it might lead to a wave of gun control laws being overturned. Instead, it appears that the decision simply provided a rather high limit on how far gun regulations can go.

You’ve probably heard about the Heller case, or at least heard the name “Heller.” But what was it all about, and what does it mean for gun control and gun ownership in the U.S.? One of our members, Kevin, explains.

In American government, the final word on the legality of legislation is the Supreme Court. When laws have conflicted with the Constitution, the Supreme Court has struck them down. The controversial issue of gun control is no exception. The most important gun control case in recent years (or very possibly ever) was District of Columbia v Heller.

The Supreme Court in Washington D.C. Photo courtesy of U.S. government.


Facts of the Case

The issue in Heller was a 1976 District of Columbia gun control law. This law made it a crime to possess an unregistered firearm and prohibited the registration of handguns. It further banned the possession of unlicensed handguns, with one-year licenses to be granted by the Chief of Police. The effect of these provisions was that it became illegal to possess a handgun not registered before the law took effect, and then those handguns had to be re-licensed every year. A final provision of the law required that lawfully-owned firearms be made temporarily inoperable for storage, which meant they had to be unloaded and disassembled or they had to have a trigger lock.

Heller was a D.C. special policeman who was denied permission to register a handgun that he wanted to keep at home. His suit against the law was dismissed in district court, but that decision was reversed by the D.C. Circuit Court. The U.S. Supreme Court agreed to hear the case on November 20, 2007.

Oral Arguments

In an extended oral argument, Washington D.C. argued that the Second Amendment applied specifically to a right to bear arms as part of a militia. This reading of the Second Amendment would allow virtually all forms of gun control, including the D.C. handgun ban. Concerns from several Justices over this interpretation stemmed from a belief that Congress had almost absolute authority over militias under the Constitution, including the power to disband them. It would thus be odd for the Second Amendment to prevent Congress from disarming them.

In regard to the requirement that guns be made temporarily inoperable while not in use, D.C. argued that such a requirement did not prevent the use of guns for self-defense. Both sides agreed that a right to self-defense exists, and D.C. argued that using a trigger lock would make a weapon useable in about 3 seconds, so it wouldn’t stop the owner from being able to defend himself.

Heller’s attorney argued that reasonable gun control measures were available to the government but that the handgun ban was unconstitutional because it unnecessarily infringed on a personal right to bear arms. He refuted the militia interpretation, arguing that the Second Amendment did in fact grant citizens an individual right to possess guns.

Heller’s side viewed the right to bear arms not only as an important part of the right to self-defense, but also as an inherent right enshrined in the Second Amendment and dating back to the English Bill of Rights. Additionally, the argument relied on the notion of “original intent,” the idea that the framers intended a right for individuals to bear arms under the Constitution.

The Opinion

Justice Antonin Scalia wrote the majority opinion for the Heller case. He is pictured here in 1986. photo courtesy of senate.gov.

Justice Antonin Scalia wrote the majority opinion for the Heller case. He is pictured here in 1986. Photo courtesy of senate.gov.

Justice Scalia wrote the opinion of the Supreme Court in a 5-4 decision in favor of Heller. Scalia rejected the idea that the Second Amendment was limited exclusively to militia service, recognizing both a right to possess firearms and a right to use them for lawful purposes such as self-defense.

Scalia went on to note that several forms of gun regulation are acceptable under the Second Amendment. Some examples Scalia noted include concealed weapons bans, prohibitions on firearm possession by felons or the mentally ill, prohibitions on firearm possession in places such as schools and government buildings as well as regulations on the sale of firearms.

However, Scalia found that the D.C. handgun ban as well as the so-called “trigger-lock provision” were not acceptable. He found that the ban affected a class of weapons “that Americans overwhelmingly choose for the lawful purpose of self-defense.” Similarly, he stated that the “trigger-lock provision” made it impossible for a firearm to be used in self-defense and was therefore unconstitutional. Scalia chose not to strike down the licensing requirement, noting that it is acceptable so long as it is not enforced arbitrarily or capriciously.

The Dissents

Justices Stevens and Breyer each wrote a dissent. Dissents lack the force of law, but they are often instructive in examining the issues of a case. Justice Stevens focused on the Majority’s interpretation of the Second Amendment. In his dissent, he claimed that the Amendment did not protect the use of firearms for non-military purposes. Justice Stevens argued that the Majority had set aside normal standards of interpretation in its decision. He believed that the Majority had inappropriately ignored the first part of the Amendment: “A well regulated Militia.”

He also cited the term “bear arms” as meaning “to serve as a soldier, to do military service, to fight,” according to the Oxford English Dictionary. In other words, his reading was that the right was tied inextricably to military service. Justice Stevens also presented historical evidence to counter the Majority’s claim of original intent, including a 1792 militia bill that required every white male of suitable age to “provide himself with a good musket or firelock.” That requirement to own a gun also suggests a military purpose.

Justice Breyer agreed with Justice Stevens’ reading of the Second Amendment, but he added that the right is not absolute. Justice Breyer appeared to be assessing the balance between state interest and individual rights — whether the state interest in gun regulation overrode any individual right to own a gun for military purpose. He said the D.C. law pursued government interests in protecting life and preventing crime, both repeatedly found to be compelling interests. Justice Breyer therefore found there was sufficient government interest served in the law, so it should have been upheld.


Following the Heller decision, D.C. began changing its gun laws. An amendment to firearms regulations relaxed several hurdles to gun registration, and provided for the creation of a list of “unsafe” handguns that could not be registered. The law kept a ban on automatic weapons and bottom-loading guns, which has already been challenged in court.

The ruling in Heller was extended when the Supreme Court ruled that the Second Amendment applied to the states as well as the federal government in McDonald v Chicago. That case caused a Chicago handgun ban to be returned to lower courts for a ruling in line with Heller.

There is not yet a consensus on what exactly Heller means for gun control. Some have called this victory for gun rights activists a hollow one because it affirmed that there are many regulations consistent with the Second Amendment. The media has often portrayed the case as an absolute recognition of gun rights, but the Court’s majority opinion is more nuanced.

What Does It All Mean?

Heller is not the clear-cut case that some would like it to be. While it threw out certain provisions of the D.C. gun control law, it also explicitly recognized the possibility of others. In his opinion, Justice Scalia did not produce any sort of Constitutional test by which laws could be measured. The future of the field of gun control laws seems destined to be determined by more lawsuits.

However, a good understanding of the Heller case is essential for anyone advocating for new gun legislation that would remain consistent with the modern interpretation of the 2nd Amendment. The regulations specifically articulated by Justice Scalia would certainly be acceptable, and the oral arguments during the case reveal other regulations that also seemed acceptable to the Court, such as “safe storage” laws. Further, Heller did not rule out bans on certain classes of weapons. Justice Scalia emphasized handguns because they are so widely used in self-defense. An assault weapons ban could very possibly be found constitutional and consistent with the Heller opinion.

Likely the most important lesson from this case is that gun regulations must take individual liberty into account. The interpretation that individuals’ right to bear arms was limited to a military role only was dismissed in Heller.  The case left room for a balance between gun rights and gun regulation.

Further Reading: Here is a great project which reviews Supreme Court cases and provides links to oral arguments, opinions, and supporting briefs known as Amicus Curiae)