Part III - ANATOMY of a SUPREME COURT CASE: District of Columbia v. Heller (2008) | Eastern North Carolina Now

    Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defense of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations." the state constitutional guarantee of the right to "bear" arms did not prohibit the banning of concealed weapons. In 1833, the Tennessee Supreme Court had treated the state constitutional provision as conferring a right "of all the free citizens of the State to keep and bear arms for their defense." 21 years later the court held that the "keep" portion of the state constitutional right included the right to personal self-defense: "The right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace."

    Similarly, it was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense. J. Ordronaux, in his 1891 book "Constitutional Legislation in the United States" 241-242 (1891), wrote: "The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. . . . It was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed."

    Justice Scalia distinguished the United States v. Miller (1939) ruling this way: "It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.... Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons."

    We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to keep and use for protection of one's home and family," would fail constitutional muster.

    We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of government - even the Third Branch of Government (the federal courts) - the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an "interest-balancing" approach to the prohibition of a peaceful neo-Nazi march through Skokie. The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people.


    Since this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field. But whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

    In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

    Justice Scalia spent 45 pages of the majority opinion addressing the history, and especially the original meaning and the intent of the Second Amendment (summed by appropriate excerpts above). He distinguished the United States v. Miller (1939) case by pointing out that the Court didn't even attempt to do a thorough examination of the Second Amendment, and then announced that the clear purpose of the Second Amendment was, and IS, to guarantee an individual right to Keep and Bear Arms for self-defense. Finally, he concluded by announcing that, because the DC Gun Ban denies Dick Heller and other DC residents of this right, it is unconstitutional.

    The Heller decision would be the first time in American history that a gun control law was found to violate the Second Amendment to the Constitution.

    Publisher's note: This ends the third part of this multi-part series by Diane Rufino examining District of Columbia v. Heller (2008). Part I, II, III and all succeeding parts of this mammoth treatise can be found here.