By The Renzulli Law Firm
HOLDS THAT THE SECOND AMENDMENT PROTECTS AN INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS
To Our Friends & Clients:
As we know that all of
you strive to keep abreast of the latest legal developments facing the Industry, we wanted to provide you with a brief summary
of the United States Supreme Court’s opinion holding that the Second Amendment protects a pre-existing individual right
to keep and bear arms.
On June 26, 2008, Supreme Court issued a 5-4 decision in District of Columbia
v. Heller, affirming the decision by the U.S. Court of Appeals for the District of Columbia Circuit, which struck down
the District of Columbia’s law banning the possession of handguns in the home and requiring trigger locks on long guns
on the basis that it violated the Second Amendment. The opinion of the Court
was written by Justice Scalia and was joined by Chief Justice Roberts and Justices Kennedy, Thomas and Alito. Justice Stevens wrote a dissenting opinion, which was joined by Justices Souter, Ginsburg and Breyer. Justice Breyer also wrote a dissenting opinion, which was joined by Justices Stevens,
Souter and Ginsburg. The Court engaged in a lengthy historical analysis of the
right to keep and bear arms in England and the colonies prior
to the enactment of the Second Amendment, commentary on the Second Amendment that was contemporary to its enactment, and case
law and commentary on the Second Amendment through the end of the nineteenth century.
The Court held that the
Second Amendment guarantees the “individual right to possess and carry weapons in case of confrontation.”
There seems to us no doubt, on
the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not.
. . . Thus, we do no read the Second Amendment to protect the right of citizens
to carry arms for any sort of confrontation, just as we do not read the First
Amendment to protect the right of citizens to speak for any purpose.
reference to the militia in the Second Amendment is to an already existing body, comprised of all able-bodied men, over which
the Constitution grants to Congress the power to call forth and organize. The
phrase “the security of a free state,” is a term of art meaning
a “free country.” The militia was thought to be necessary to the
security of a free state for three reasons:
of course, it is useful in repelling invasions and suppressing insurrections. Second,
it renders large standing armies unnecessary — an argument that Alexander Hamilton made in favor of federal control
over the militia. *** Third,
when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.
Justice Scalia adopted the “insurrectionist view”
of the Second Amendment, stating that it “was understood across the political spectrum that the right helped secure
the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order
The Court continued to add that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”
we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion
should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms.
The Court was less than clear regarding
the types of arms protected by the Second Amendment, noting that it interpreted its prior decision in United States v. Miller as holding only that “the Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens, such as short-barreled shotguns.” The
Court continued to note that the type of weapons protected by the Second Amendment, “were those ‘in common use
at the time,’” noting that such “limitation is fairly supported by the historical tradition of prohibiting
the carrying of ‘dangerous and unusual weapons.’”
It may be objected
that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the
Second Amendment right is completely detached from the prefatory clause. But
as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all
citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th
century, would require sophisticated arms that are highly unusual in society at large.
Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of that right.
Court did not state the proper standard of review to be applied, stating that “[u]nder 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.” The Court noted that more than rational basis review, is required, but left open the
question of whether the proper standard of review is strict scrutiny or intermediate scrutiny.
The Court did not address the issue of whether requiring a license to keep a handgun at home in constitutional because
counsel for Heller conceded at oral argument that “he does not ‘have a problem with . . . licensing’ . . . . We therefore assume that petitioners’
issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.” The Court also did not address the issue of whether the Second Amendment has been
incorporated to the states by the enactment of the Fourteenth Amendment, because the law at issue was enacted by the District
of Columbia. The Court, however, criticized its prior
decision in United States v. Cruikshank that the Second Amendment was only a
restriction against the federal government, not the states, on the basis that it was decided before the Court began incorporating
the Bill of Rights to the states through the Fourteenth Amendment, and also held that the First Amendment was not applicable
to the states.
The Court’s ultimate holding was 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.”
If you have any questions concerning the Supreme
Court’s decision regarding the Second Amendment in District of Columbia v. Heller,
please contact either John F. Renzulli or Christopher Renzulli.