In a VERY LONG ruling that I am happy with, but personally disagree with, the Supreme Court has struck down Washington, D.C.’s handgun ban, declaring it unconstitutional. I first covered this story when the case was filed in November. I say now what I said then. In my opinion, all law abiding citizens should be able to own guns, but the 2nd Amendment does NOT allow for this. In my opinion, it only allows for militias. And sure, there’s the argument that back when the Constitution was written, everybody was in the militia, so everybody today is essentially “the militia.” Well, I really don’t think that even 75% of Americans would go out and fight if we were invaded – it’s sad, but I just don’t see it happening. That being said, I’m not going to be upset with today’s ruling.
Before I get into the case, I’ll summarize what it did and did not do:
- It struck down
- Any blanket bans on guns, such as Washington, D.C.’s
- Requirements that firearms must be equipped with trigger locks, such as Washington (state)’s
- It did not strike down bans on:
- Felons owning guns
- Assault weapons
- Sawed-off shotguns
Here’s the introduction for the case:
SUPREME COURT OF THE UNITED STATES
Syllabus
DISTRICT OF COLUMBIA ET AL. v. HELLER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 07–290. Argued March 18, 2008—Decided June 26, 2008
District of Columbia law bans handgun possession by making it a crime
to carry an unregistered firearm and prohibiting the registration of
handguns; provides separately that no person may carry an unlicensed
handgun, but authorizes the police chief to issue 1-year licenses;
and requires residents to keep lawfully owned firearms
unloaded and disassembled or bound by a trigger lock or similar device.
Respondent Heller, a D. C. special policeman, applied to register
a handgun he wished to keep at home, but the District refused.
He filed this suit seeking, on Second Amendment grounds, to enjoin
the city from enforcing the bar on handgun registration, the licensing
requirement insofar as it prohibits carrying an unlicensed firearm in
the home, and the trigger-lock requirement insofar as it prohibits the
use of functional firearms in the home. The District Court dismissed
the suit, but the D. C. Circuit reversed, holding that the Second
Amendment protects an individual’s right to possess firearms and
that the city’s total ban on handguns, as well as its requirement that
firearms in the home be kept nonfunctional even when necessary for
self-defense, violated that right.
Held:
1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.
Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation
of the operative clause. The “militia” comprised all males physically
capable of acting in concert for the common defense. The Antifederalists
feared that the Federal Government would disarm the people in
order to disable this citizens’ militia, enabling a politicized standing
army or a select militia to rule. The response was to deny Congress
power to abridge the ancient right of individuals to keep and bear
arms, so that the ideal of a citizens’ militia would be preserved.
Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous armsbearing
rights in state constitutions that preceded and immediately
followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious
interpretive worth, reveals three state Second Amendment proposals
that unequivocally referred to an individual right to bear arms.
Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts
and legislators, from immediately after its ratification through the
late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation.
Neither United States v. Cruikshank, 92 U. S. 542, 553, nor
Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individualrights
interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.
3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment. The District’s total ban
on handgun possession in the home amounts to a prohibition on an
entire class of “arms” that Americans overwhelmingly choose for the
lawful purpose of self-defense. Under any of the standards of scrutiny
the Court has applied to enumerated constitutional rights, this
prohibition—in the place where the importance of the lawful defense
of self, family, and property is most acute—would fail constitutional
muster. Similarly, 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 hence unconstitutional. Because Heller conceded at oral argument
that the D. C. licensing law is permissible if it is not enforced arbitrarily
and capriciously, the Court assumes that a license will satisfy
his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment
rights, the District must permit Heller to register his handgun and
must issue him a license to carry it in the home. Pp. 56–64.
478 F. 3d 370, affirmed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined. BREYER, J., filed a dissenting opinion, in which STEVENS,
SOUTER, and GINSBURG, JJ., joined.
And here’s the Court’sopinion, filed by Justice Scalia, joined by Roberts, Kennedy, Thomas, and Alito:
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–290
_________________
DISTRICT OF COLUMBIA, ET AL., PETITIONERS v.
DICK ANTHONY HELLER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 26, 2008]
JUSTICE SCALIA delivered the opinion of the Court.
We consider whether a District of Columbia prohibition
on the possession of usable handguns in the home violates
the Second Amendment to the Constitution.
…
2. Prefatory Clause.
The prefatory clause reads: “A well regulated Militia,
being necessary to the security of a free State . . . .”
a. “Well-Regulated Militia.” In United States v.
Miller, 307 U. S. 174, 179 (1939), we explained that “the
Militia comprised all males physically capable of acting in
concert for the common defense.” That definition comports
with founding-era sources. See, e.g., Webster (“The militia
of a country are the able bodied men organized into companies,
regiments and brigades . . . and required by law to
attend military exercises on certain days only, but at other
times left to pursue their usual occupations”); The Federalist
No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison)
(“near half a million of citizens with arms in their hands”);
Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable
Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“[T]he
militia of the State, that is to say, of every man in it able
to bear arms”).
Petitioners take a seemingly narrower view of the militia,
stating that “[m]ilitias are the state- and congressionally-
regulated military forces described in the Militia
Clauses (art. I, §8, cls. 15–16).” Brief for Petitioners 12.
Although we agree with petitioners’ interpretive assumption
that “militia” means the same thing in Article I and
the Second Amendment, we believe that petitioners identify
the wrong thing, namely, the organized militia.
Unlike armies and navies, which Congress is given the
power to create (“to raise . . . Armies”; “to provide . . . a
Navy,” Art. I, §8, cls. 12–13), the militia is assumed by
Article I already to be in existence. Congress is given the
power to “provide for calling forth the militia,” §8, cl. 15;
and the power not to create, but to “organiz[e]” it—and not
to organize “a” militia, which is what one would expect if
the militia were to be a federal creation, but to organize
“the” militia, connoting a body already in existence, ibid.,
cl. 16. This is fully consistent with the ordinary definition
of the militia as all able-bodied men. From that pool,
Congress has plenary power to organize the units that will
make up an effective fighting force. That is what Congress
did in the first militia Act, which specified that “each
and every free able-bodied white male citizen of the respective
states, resident therein, who is or shall be of the
age of eighteen years, and under the age of forty-five years
(except as is herein after excepted) shall severally and
respectively be enrolled in the militia.” Act of May 8,
1792, 1 Stat. 271. To be sure, Congress need not conscript
every able-bodied man into the militia, because nothing in
Article I suggests that in exercising its power to organize,
discipline, and arm the militia, Congress must focus upon
the entire body. Although the militia consists of all ablebodied
men, the federally organized militia may consist of
a subset of them.
Finally, the adjective “well-regulated” implies nothing
more than the imposition of proper discipline and training.
See Johnson 1619 (“Regulate”: “To adjust by rule or
method”); Rawle 121–122; cf. Va. Declaration of Rights
§13 (1776), in 7 Thorpe 3812, 3814 (referring to “a wellregulated
militia, composed of the body of the people,
24 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
trained to arms”).
…
IV
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,27 banning from
the home “the most preferred firearm in the nation to
‘keep’ and use for protection of one’s home and family,”
478 F. 3d, at 400, would fail constitutional muster.
Few laws in the history of our Nation have come close to
the severe restriction of the District’s handgun ban. And
some of those few have been struck down. In Nunn v.
State, the Georgia Supreme Court struck down a prohibition
on carrying pistols openly (even though it upheld a
prohibition on carrying concealed weapons). See 1 Ga., at
251. In Andrews v. State, the Tennessee Supreme Court
likewise held that a statute that forbade openly carrying a
pistol “publicly or privately, without regard to time or
place, or circumstances,” 50 Tenn., at 187, violated the
state constitutional provision (which the court equated
with the Second Amendment). That was so even though
the statute did not restrict the carrying of long guns. Ibid.
See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).
It is no answer to say, as petitioners do, that it is permissible
to ban the possession of handguns so long as the
possession of other firearms (i.e., long guns) is allowed. It
is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential
self-defense weapon. There are many reasons that a
citizen may prefer a handgun for home defense: It is easier
to store in a location that is readily accessible in an emergency;
it cannot easily be redirected or wrestled away by
an attacker; it is easier to use for those without the upperbody
strength to lift and aim a long gun; it can be pointed
at a burglar with one hand while the other hand dials the
police. Whatever the reason, handguns are the most popu-
lar weapon chosen by Americans for self-defense in the
home, and a complete prohibition of their use is invalid.
We must also address the District’s requirement (as
applied to respondent’s handgun) that firearms in the
home be rendered and kept inoperable at all times. This
makes it impossible for citizens to use them for the core
lawful purpose of self-defense and is hence unconstitutional.
The District argues that we should interpret this
element of the statute to contain an exception for selfdefense.
See Brief for Petitioners 56–57. But we think
that is precluded by the unequivocal text, and by the
presence of certain other enumerated exceptions: “Except
for law enforcement personnel . . . , 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.” D. C. Code §7–2507.02. The nonexistence
of a self-defense exception is also suggested by
the D. C. Court of Appeals’ statement that the statute
forbids residents to use firearms to stop intruders, see
McIntosh v. Washington, 395 A. 2d 744, 755–756 (1978).28
Apart from his challenge to the handgun ban and the
trigger-lock requirement respondent asked the District
Court to enjoin petitioners from enforcing the separate
licensing requirement “in such a manner as to forbid the
carrying of a firearm within one’s home or possessed land
without a license.” App. 59a. The Court of Appeals did
not invalidate the licensing requirement, but held only
that the District “may not prevent [a handgun] from being
moved throughout one’s house.” 478 F. 3d, at 400. It then
ordered the District Court to enter summary judgment
“consistent with [respondent’s] prayer for relief.” Id., at
401. Before this Court petitioners have stated that “if the
handgun ban is struck down and respondent registers a
handgun, he could obtain a license, assuming he is not
otherwise disqualified,” by which they apparently mean if
he is not a felon and is not insane. Brief for Petitioners
58. Respondent conceded at oral argument that he does
not “have a problem with . . . licensing” and that the District’s
law is permissible so long as it is “not enforced in an
arbitrary and capricious manner.” Tr. of Oral Arg. 74–75.
We therefore assume that petitioners’ issuance of a license
will satisfy respondent’s prayer for relief and do not address
the licensing requirement.
JUSTICE BREYER has devoted most of his separate dissent
to the handgun ban. He says that, even assuming the
Second Amendment is a personal guarantee of the right to
bear arms, the District’s prohibition is valid. He first tries
to establish this by founding-era historical precedent,
pointing to various restrictive laws in the colonial period.
These demonstrate, in his view, that the District’s law
“imposes a burden upon gun owners that seems proportionately
no greater than restrictions in existence at the
time the Second Amendment was adopted.” Post, at 2. Of
the laws he cites, only one offers even marginal support
for his assertion. A 1783 Massachusetts law forbade the
residents of Boston to “take into” or “receive into” “any
Dwelling House, Stable, Barn, Out-house, Ware-house,
Store, Shop or other Building” loaded firearms, and permitted
the seizure of any loaded firearms that “shall be
found” there. Act of Mar. 1, 1783, ch. 13, 1783 Mass. Acts
p. 218. That statute’s text and its prologue, which makes
clear that the purpose of the prohibition was to eliminate
the danger to firefighters posed by the “depositing of
loaded Arms” in buildings, give reason to doubt that colonial
Boston authorities would have enforced that general
prohibition against someone who temporarily loaded a
firearm to confront an intruder (despite the law’s application
in that case). In any case, we would not stake our
interpretation of the Second Amendment upon a single
law, in effect in a single city, that contradicts the overwhelming
weight of other evidence regarding the right to
keep and bear arms for defense of the home. The other
laws JUSTICE BREYER cites are gunpowder-storage laws
that he concedes did not clearly prohibit loaded weapons,
but required only that excess gunpowder be kept in a
special container or on the top floor of the home. Post, at
6–7. Nothing about those fire-safety laws undermines our
analysis; they do not remotely burden the right of selfdefense
as much as an absolute ban on handguns. Nor,
correspondingly, does our analysis suggest the invalidity
of laws regulating the storage of firearms to prevent
accidents.
JUSTICE BREYER points to other founding-era laws that
he says “restricted the firing of guns within the city limits
to at least some degree” in Boston, Philadelphia and New
York. Post, at 4 (citing Churchill, Gun Regulation, the
Police Power, and the Right to Keep Arms in Early America,
25 Law & Hist. Rev. 139, 162 (2007)). Those laws
provide no support for the severe restriction in the present
case. The New York law levied a fine of 20 shillings on
anyone who fired a gun in certain places (including
houses) on New Year’s Eve and the first two days of January,
and was aimed at preventing the “great Damages . . .
frequently done on [those days] by persons going House to
House, with Guns and other Firearms and being often
intoxicated with Liquor.” 5 Colonial Laws of New York
244–246 (1894). It is inconceivable that this law would
have been enforced against a person exercising his right to
self-defense on New Year’s Day against such drunken
hooligans. The Pennsylvania law to which JUSTICE
BREYER refers levied a fine of 5 shillings on one who fired
a gun or set off fireworks in Philadelphia without first
obtaining a license from the governor. See Act of Aug. 26,
1721, §4, in 3 Stat. at Large 253–254. Given Justice Wilson’s
explanation that the right to self-defense with arms
was protected by the Pennsylvania Constitution, it is
unlikely that this law (which in any event amounted to at
most a licensing regime) would have been enforced against
a person who used firearms for self-defense. JUSTICE
BREYER cites a Rhode Island law that simply levied a 5-
shilling fine on those who fired guns in streets and taverns,
a law obviously inapplicable to this case. See An Act for
preventing Mischief being done in the town of Newport, or
in any other town in this Government, 1731, Rhode Island
Session Laws. Finally, JUSTICE BREYER points to a Massachusetts
law similar to the Pennsylvania law, prohibiting
“discharg[ing] any Gun or Pistol charged with Shot or
Ball in the Town of Boston.” Act of May 28, 1746, ch. X,
Acts and Laws of Mass. Bay 208. It is again implausible
that this would have been enforced against a citizen acting
in self-defense, particularly given its preambulatory reference
to “the indiscreet firing of Guns.” Ibid. (preamble)
(emphasis added).
A broader point about the laws that JUSTICE BREYER
cites: All of them punished the discharge (or loading) of
guns with a small fine and forfeiture of the weapon (or in a
few cases a very brief stay in the local jail), not with significant
criminal penalties.29 They are akin to modern
penalties for minor public-safety infractions like speeding
or jaywalking. And although such public-safety laws may
not contain exceptions for self-defense, it is inconceivable
that the threat of a jaywalking ticket would deter someone
from disregarding a “Do Not Walk” sign in order to flee an
attacker, or that the Government would enforce those laws
under such circumstances. Likewise, we do not think that
a law imposing a 5-shilling fine and forfeiture of the gun
would have prevented a person in the founding era from
using a gun to protect himself or his family from violence,
or that if he did so the law would be enforced against him.
The District law, by contrast, far from imposing a minor
fine, threatens citizens with a year in prison (five years for
a second violation) for even obtaining a gun in the first
place. See D. C. Code §7–2507.06.
JUSTICE BREYER moves on to make a broad jurisprudential
point: He criticizes us for declining to establish a level
of scrutiny for evaluating Second Amendment restrictions.
He proposes, explicitly at least, none of the traditionally
expressed levels (strict scrutiny, intermediate scrutiny,
rational basis), but rather a judge-empowering “interestbalancing
inquiry” that “asks whether the statute burdens
a protected interest in a way or to an extent that is out of
proportion to the statute’s salutary effects upon other
important governmental interests.” Post, at 10. After an
exhaustive discussion of the arguments for and against
gun control, JUSTICE BREYER arrives at his interestbalanced
answer: because handgun violence is a problem,
because the law is limited to an urban area, and because
there were somewhat similar restrictions in the founding
period (a false proposition that we have already discussed),
the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED.
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 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. See
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam). 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—which
JUSTICE BREYER would now conduct for them anew. And
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.
JUSTICE BREYER chides us for leaving so many applications
of the right to keep and bear arms in doubt, and for
not providing extensive historical justification for those
regulations of the right that we describe as permissible.
See post, at 42–43. But 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,
any more than Reynolds v. United States, 98 U. S. 145
(1879), our first in-depth Free Exercise Clause case, left
that area in a state of utter certainty. And there will be
time enough to expound upon the historical justifications
for the exceptions we have mentioned if and when those
exceptions come before us.
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.
* * *
We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution. The Constitution leaves the
District of Columbia a variety of tools for combating that
problem, including some measures regulating handguns,
see supra, at 54–55, and n. 26. But the enshrinement of
constitutional rights necessarily takes certain policy
choices off the table. These include the absolute prohibition
of handguns held and used for self-defense in the
home. Undoubtedly some think that the Second Amendment
is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is
not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.
We affirm the judgment of the Court of Appeals.
It is so ordered.
So, there’s the Court’s opinion, one that I disagree with, but I’m happy with. I supported an Amendment that would do what the Court did in their ruling here, but that won’t be necessary now.
And here’s Justice Steven’s dissenting opinion, joined by Souter, Ginsburg, and Breyer:
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–290
_________________
DISTRICT OF COLUMBIA, ET AL., PETITIONERS v.
DICK ANTHONY HELLER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 26, 2008]
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE
GINSBURG, and JUSTICE BREYER join, dissenting.
The question presented by this case is not whether the
Second Amendment protects a “collective right” or an
“individual right.” Surely it protects a right that can be
enforced by individuals. But a conclusion that the Second
Amendment protects an individual right does not tell us
anything about the scope of that right.
Guns are used to hunt, for self-defense, to commit
crimes, for sporting activities, and to perform military
duties. The Second Amendment plainly does not protect
the right to use a gun to rob a bank; it is equally clear that
it does encompass the right to use weapons for certain
military purposes. Whether it also protects the right to
possess and use guns for nonmilitary purposes like hunting
and personal self-defense is the question presented by
this case. The text of the Amendment, its history, and our
decision in United States v. Miller, 307 U. S. 174 (1939),
provide a clear answer to that question.
The Second Amendment was adopted to protect the
right of the people of each of the several States to maintain
a well-regulated militia. It was a response to concerns
raised during the ratification of the Constitution
that the power of Congress to disarm the state militias
and create a national standing army posed an intolerable
threat to the sovereignty of the several States. Neither
the text of the Amendment nor the arguments advanced
by its proponents evidenced the slightest interest in limiting
any legislature’s authority to regulate private civilian
uses of firearms. Specifically, there is no indication that
the Framers of the Amendment intended to enshrine the
common-law right of self-defense in the Constitution.
In 1934, Congress enacted the National Firearms Act,
the first major federal firearms law.1 Upholding a conviction
under that Act, this Court held that, “[i]n the absence
of any evidence tending to show that possession or use of a
‘shotgun having a barrel of less than eighteen inches in
length’ at this time 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.” Miller, 307
U. S., at 178. The view of the Amendment we took in
Miller—that it protects the right to keep and bear arms
for certain military purposes, but that it does not curtail
the Legislature’s power to regulate the nonmilitary use
and ownership of weapons—is both the most natural
reading of the Amendment’s text and the interpretation
most faithful to the history of its adoption.
Since our decision in Miller, hundreds of judges have
relied on the view of the Amendment we endorsed there;2
we ourselves affirmed it in 1980. See Lewis v. United
States, 445 U. S. 55, 65–66, n. 8 (1980).3 No new evidence
has surfaced since 1980 supporting the view that the
Amendment was intended to curtail the power of Congress
to regulate civilian use or misuse of weapons. Indeed, a
review of the drafting history of the Amendment demonstrates
that its Framers rejected proposals that would
have broadened its coverage to include such uses.
The opinion the Court announces today fails to identify
any new evidence supporting the view that the Amendment
was intended to limit the power of Congress to regulate
civilian uses of weapons. Unable to point to any such
evidence, the Court stakes its holding on a strained and
unpersuasive reading of the Amendment’s text; significantly
different provisions in the 1689 English Bill of
Rights, and in various 19th-century State Constitutions;
postenactment commentary that was available to the
Court when it decided Miller; and, ultimately, a feeble
attempt to distinguish Miller that places more emphasis
on the Court’s decisional process than on the reasoning in
the opinion itself.
Even if the textual and historical arguments on both
sides of the issue were evenly balanced, respect for the
well-settled views of all of our predecessors on this Court,
and for the rule of law itself, see Mitchell v. W. T. Grant
Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting),
would prevent most jurists from endorsing such a dramatic
upheaval in the law.4 As Justice Cardozo observed
years ago, the “labor of judges would be increased almost
to the breaking point if every past decision could be reopened
in every case, and one could not lay one’s own
course of bricks on the secure foundation of the courses
laid by others who had gone before him.” The Nature of
the Judicial Process 149 (1921).
In this dissent I shall first explain why our decision in
Miller was faithful to the text of the Second Amendment
and the purposes revealed in its drafting history. I shall
then comment on the postratification history of the
Amendment, which makes abundantly clear that the
Amendment should not be interpreted as limiting the
authority of Congress to regulate the use or possession of
firearms for purely civilian purposes.
I
The text of the Second Amendment is brief. It provides:
“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.”
Three portions of that text merit special focus: the introductory
language defining the Amendment’s purpose,
the class of persons encompassed within its reach, and the
unitary nature of the right that it protects.
“A well regulated Militia, being necessary to the security of
a free State”
The preamble to the Second Amendment makes three
important points. It identifies the preservation of the
militia as the Amendment’s purpose; it explains that the
militia is necessary to the security of a free State; and it
recognizes that the militia must be “well regulated.” In all
three respects it is comparable to provisions in several
State Declarations of Rights that were adopted roughly
contemporaneously with the Declaration of Independence.5
Those state provisions highlight the importance members
of the founding generation attached to the maintenance of
state militias; they also underscore the profound fear
shared by many in that era of the dangers posed by standing
armies.6 While the need for state militias has not been
a matter of significant public interest for almost two centuries,
that fact should not obscure the contemporary
concerns that animated the Framers.
The parallels between the Second Amendment and
these state declarations, and the Second Amendment’s
omission of any statement of purpose related to the right
to use firearms for hunting or personal self-defense, is
especially striking in light of the fact that the Declarations
of Rights of Pennsylvania and Vermont did expressly
protect such civilian uses at the time. Article XIII of
Pennsylvania’s 1776 Declaration of Rights announced that
“the people have a right to bear arms for the defence of
themselves and the state,” 1 Schwartz 266 (emphasis
added); §43 of the Declaration assured that “the inhabitants
of this state shall have the liberty to fowl and hunt
in seasonable times on the lands they hold, and on all
other lands therein not inclosed,” id., at 274. And Article
XV of the 1777 Vermont Declaration of Rights guaranteed
“[t]hat the people have a right to bear arms for the defence
of themselves and the State.” Id., at 324 (emphasis added).
The contrast between those two declarations and the
Second Amendment reinforces the clear statement of
confirms that the Framers’ single-minded focus in crafting
the constitutional guarantee “to keep and bear arms” was
on military uses of firearms, which they viewed in the
context of service in state militias.
The preamble thus both sets forth the object of the
Amendment and informs the meaning of the remainder of
its text. Such text should not be treated as mere surplusage,
for “[i]t cannot be presumed that any clause in the
constitution is intended to be without effect.” Marbury v.
Madison, 1 Cranch 137, 174 (1803).
The Court today tries to denigrate the importance of
this clause of the Amendment by beginning its analysis
with the Amendment’s operative provision and returning
to the preamble merely “to ensure that our reading of the
operative clause is consistent with the announced purpose.”
Ante, at 5. That is not how this Court ordinarily
reads such texts, and it is not how the preamble would
have been viewed at the time the Amendment was
adopted. While the Court makes the novel suggestion that
it need only find some “logical connection” between the
preamble and the operative provision, it does acknowledge
that a prefatory clause may resolve an ambiguity in the
text. Ante, at 4.7 Without identifying any language in the
text that even mentions civilian uses of firearms, the
Court proceeds to “find” its preferred reading in what is at
best an ambiguous text, and then concludes that its reading
is not foreclosed by the preamble. Perhaps the Court’s
approach to the text is acceptable advocacy, but it is surely
an unusual approach for judges to follow.
…
V
The Court concludes its opinion by declaring that it is
not the proper role of this Court to change the meaning of
rights “enshrine[d]” in the Constitution. Ante, at 64. But
the right the Court announces was not “enshrined” in the
Second Amendment by the Framers; it is the product of
today’s law-changing decision. The majority’s exegesis has
utterly failed to establish that as a matter of text or history,
“the right of law-abiding, responsible citizens to use
arms in defense of hearth and home” is “elevate[d] above
all other interests” by the Second Amendment. Ante, at
64.
Until today, it has been understood that legislatures
may regulate the civilian use and misuse of firearms so
long as they do not interfere with the preservation of a
well-regulated militia. The Court’s announcement of a
new constitutional right to own and use firearms for private
purposes upsets that settled understanding, but
leaves for future cases the formidable task of defining the
scope of permissible regulations. Today judicial craftsmen
have confidently asserted that a policy choice that denies a
“law-abiding, responsible citize[n]” the right to keep and
use weapons in the home for self-defense is “off the table.”
Ante, at 64. Given the presumption that most citizens are
law abiding, and the reality that the need to defend oneself
may suddenly arise in a host of locations outside the
home, I fear that the District’s policy choice may well be
just the first of an unknown number of dominoes to be
knocked off the table.39
I do not know whether today’s decision will increase the
labor of federal judges to the “breaking point” envisioned
by Justice Cardozo, but it will surely give rise to a far
more active judicial role in making vitally important
national policy decisions than was envisioned at any time
in the 18th, 19th, or 20th centuries.
The Court properly disclaims any interest in evaluating
the wisdom of the specific policy choice challenged in this
case, but it fails to pay heed to a far more important policy
choice—the choice made by the Framers themselves. The
Court would have us believe that over 200 years ago, the
Framers made a choice to limit the tools available to
elected officials wishing to regulate civilian uses of weapons,
and to authorize this Court to use the common-law
process of case-by-case judicial lawmaking to define the
contours of acceptable gun control policy. Absent compelling
evidence that is nowhere to be found in the Court’s
opinion, I could not possibly conclude that the Framers
made such a choice.
For these reasons, I respectfully dissent.
…
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–290
_________________
DISTRICT OF COLUMBIA, ET AL., PETITIONERS v.
DICK ANTHONY HELLER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 26, 2008]
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE
SOUTER, and JUSTICE GINSBURG join, dissenting.
We must decide whether a District of Columbia law that
prohibits the possession of handguns in the home violates
the Second Amendment. The majority, relying upon its
view that the Second Amendment seeks to protect a right
of personal self-defense, holds that this law violates that
Amendment. In my view, it does not.
I
The majority’s conclusion is wrong for two independent
reasons. The first reason is that set forth by JUSTICE
STEVENS—namely, that the Second Amendment protects
militia-related, not self-defense-related, interests. These
two interests are sometimes intertwined. To assure 18thcentury
citizens that they could keep arms for militia
purposes would necessarily have allowed them to keep
arms that they could have used for self-defense as well.
But self-defense alone, detached from any militia-related
objective, is not the Amendment’s concern.
The second independent reason is that the protection
the Amendment provides is not absolute. The Amendment
permits government to regulate the interests that it
serves. Thus, irrespective of what those interests are—
whether they do or do not include an independent interest
in self-defense—the majority’s view cannot be correct
unless it can show that the District’s regulation is unreasonable
or inappropriate in Second Amendment terms.
This the majority cannot do.
In respect to the first independent reason, I agree with
JUSTICE STEVENS, and I join his opinion. In this opinion I
shall focus upon the second reason. I shall show that the
District’s law is consistent with the Second Amendment
even if that Amendment is interpreted as protecting a
wholly separate interest in individual self-defense. That is
so because the District’s regulation, which focuses upon
the presence of handguns in high-crime urban areas,
represents a permissible legislative response to a serious,
indeed life-threatening, problem.
Thus I here assume that one objective (but, as the majority
concedes, ante, at 26, not the primary objective) of
those who wrote the Second Amendment was to help
assure citizens that they would have arms available for
purposes of self-defense. Even so, a legislature could
reasonably conclude that the law will advance goals of
great public importance, namely, saving lives, preventing
injury, and reducing crime. The law is tailored to the
urban crime problem in that it is local in scope and thus
affects only a geographic area both limited in size and
entirely urban; the law concerns handguns, which are
specially linked to urban gun deaths and injuries, and
which are the overwhelmingly favorite weapon of armed
criminals; and at the same time, the law imposes a burden
upon gun owners that seems proportionately no greater
than restrictions in existence at the time the Second
Amendment was adopted. In these circumstances, the
District’s law falls within the zone that the Second
Amendment leaves open to regulation by legislatures.
II
The Second Amendment says that: “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.” In interpreting and applying this Amendment,
I take as a starting point the following four propositions,
based on our precedent and today’s opinions, to which I
believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e.,
one that is separately possessed, and may be separately
enforced, by each person on whom it is conferred. See,
e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS,
J., dissenting).
(2) As evidenced by its preamble, the Amendment was
adopted “[w]ith obvious purpose to assure the continuation
and render possible the effectiveness of [militia] forces.”
United States v. Miller, 307 U. S. 174, 178 (1939); see
ante, at 26 (opinion of the Court); ante, at 1 (STEVENS, J.,
dissenting).
(3) The Amendment “must be interpreted and applied
with that end in view.” Miller, supra, at 178.
(4) The right protected by the Second Amendment is not
absolute, but instead is subject to government regulation.
See Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897);
ante, at 22, 54 (opinion of the Court).
My approach to this case, while involving the first three
points, primarily concerns the fourth. I shall, as I said,
assume with the majority that the Amendment, in addition
to furthering a militia-related purpose, also furthers
an interest in possessing guns for purposes of self-defense,
at least to some degree. And I shall then ask whether the
Amendment nevertheless permits the District handgun
restriction at issue here.
Although I adopt for present purposes the majority’s
position that the Second Amendment embodies a general
concern about self-defense, I shall not assume that the
Amendment contains a specific untouchable right to keep
guns in the house to shoot burglars. The majority, which
presents evidence in favor of the former proposition, does
not, because it cannot, convincingly show that the Second
Amendment seeks to maintain the latter in pristine, unregulated
form.
To the contrary, colonial history itself offers important
examples of the kinds of gun regulation that citizens
would then have thought compatible with the “right to
keep and bear arms,” whether embodied in Federal or
State Constitutions, or the background common law. And
those examples include substantial regulation of firearms
in urban areas, including regulations that imposed obstacles
to the use of firearms for the protection of the home.
Boston, Philadelphia, and New York City, the three
largest cities in America during that period, all restricted
the firing of guns within city limits to at least some degree.
See Churchill, Gun Regulation, the Police Power,
and the Right to Keep Arms in Early America, 25 Law &
Hist. Rev. 139, 162 (2007); Dept. of Commerce, Bureau of
Census, C. Gibson, Population of the 100 Largest Cities
and Other Urban Places in the United States: 1790 to
1990 (1998) (Table 2), online at http://www.census.gov/
population/documentation/twps0027/tab02.txt (all Internet
materials as visited June 19, 2008, and available in
Clerk of Court’s case file). Boston in 1746 had a law prohibiting
the “discharge” of “any Gun or Pistol charged with
Shot or Ball in the Town” on penalty of 40 shillings, a law
that was later revived in 1778. See Act of May 28, 1746,
ch. 10; An Act for Reviving and Continuing Sundry Laws
that are Expired, and Near Expiring, 1778 Massachusetts
Session Laws, ch. 5, pp. 193, 194. Philadelphia prohibited,
on penalty of 5 shillings (or two days in jail if the fine were
not paid), firing a gun or setting off fireworks in Philadelphia
without a “governor’s special license.” See Act of
Aug. 26, 1721, §4, in 3 Mitchell, Statutes at Large of
Pennsylvania 253–254. And New York City banned, on
penalty of a 20-shilling fine, the firing of guns (even in
houses) for the three days surrounding New Year’s Day. 5
Colonial Laws of New York, ch. 1501, pp. 244–246 (1894);
see also An Act to Suppress the Disorderly Practice of
Firing Guns, & c., on the Times Therein Mentioned, 8
Statutes at Large of Pennsylvania 1770–1776, pp. 410–
412 (1902) (similar law for all “inhabited parts” of Pennsylvania).
See also An Act for preventing Mischief being
done in the Town of Newport, or in any other Town in this
Government, 1731, Rhode Island Session Laws (prohibiting,
on penalty of 5 shillings for a first offense and more
for subsequent offenses, the firing of “any Gun or Pistol
. . . in the Streets of any of the Towns of this Government,
or in any Tavern of the same, after dark, on any Night
whatsoever”).
Furthermore, several towns and cities (including Philadelphia,
New York, and Boston) regulated, for fire-safety
reasons, the storage of gunpowder, a necessary component
of an operational firearm. See Cornell & DeDino, A Well
Regulated Right, 73 Fordham L. Rev. 487, 510–512 (2004).
Boston’s law in particular impacted the use of firearms in
the home very much as the District’s law does today.
Boston’s gunpowder law imposed a £10 fine upon “any
Person” who “shall take into any Dwelling-House, Stable,
Barn, Out-house, Ware-house, Store, Shop, or other Building,
within the Town of Boston, any . . . Fire-Arm, loaded
with, or having Gun-Powder.” An Act in Addition to the
several Acts already made for the prudent Storage of Gun-
Powder within the Town of Boston, ch. XIII, 1783 Mass.
Acts 218–219; see also 1 S. Johnson, A Dictionary of the
English Language 751 (4th ed. 1773) (defining “firearms”
as “[a]rms which owe their efficacy to fire; guns”). Even
assuming, as the majority does, see ante, at 59–60, that
this law included an implicit self-defense exception, it
would nevertheless have prevented a homeowner from
keeping in his home a gun that he could immediately pick
up and use against an intruder. Rather, the homeowner
would have had to get the gunpowder and load it into the
gun, an operation that would have taken a fair amount of
time to perform. See Hicks, United States Military Shoulder
Arms, 1795–1935, 1 Am. Military Hist. Foundation 23,
30 (1937) (experienced soldier could, with specially prepared
cartridges as opposed to plain gunpowder and ball,
load and fire musket 3-to-4 times per minute); id., at 26–
30 (describing the loading process); see also Grancsay, The
Craft of the Early American Gunsmith, 6 Metropolitan
Museum of Art Bulletin 54, 60 (1947) (noting that rifles
were slower to load and fire than muskets).
Moreover, the law would, as a practical matter, have
prohibited the carrying of loaded firearms anywhere in the
city, unless the carrier had no plans to enter any building
or was willing to unload or discard his weapons before
going inside. And Massachusetts residents must have
believed this kind of law compatible with the provision in
the Massachusetts Constitution that granted “the people
. . . a right to keep and to bear arms for the common defence”—
a provision that the majority says was interpreted
as “secur[ing] an individual right to bear arms for defensive
purposes.” Art. XVII (1780), in 3 The Federal and
State Constitutions, Colonial Charters, and Other Organic
Laws 1888, 1892 (F. Thorpe ed. 1909) (hereinafter
Thorpe); ante, at 28–29 (opinion of the Court).
The New York City law, which required that gunpowder
in the home be stored in certain sorts of containers, and
laws in certain Pennsylvania towns, which required that
gunpowder be stored on the highest story of the home,
could well have presented similar obstacles to in-home use
of firearms. See Act of April 13, 1784, ch. 28, 1784 N. Y.
Laws p. 627; An Act for Erecting the Town of Carlisle, in
the County of Cumberland, into a Borough, ch. XIV,
§XLII, 1782 Pa. Laws p. 49; An Act for Erecting the Town
of Reading, in the County of Berks, into a Borough, ch.
LXXVI, §XLII, 1783 Pa. Laws p. 211. Although it is unCite
clear whether these laws, like the Boston law, would have
prohibited the storage of gunpowder inside a firearm, they
would at the very least have made it difficult to reload the
gun to fire a second shot unless the homeowner happened
to be in the portion of the house where the extra gunpowder
was required to be kept. See 7 United States Encyclopedia
of History 1297 (P. Oehser ed. 1967) (“Until 1835 all
small arms [were] single-shot weapons, requiring reloading
by hand after every shot”). And Pennsylvania, like
Massachusetts, had at the time one of the self-defenseguaranteeing
state constitutional provisions on which the
majority relies. See ante, at 28 (citing Pa. Declaration of
Rights, Art. XIII (1776), in 5 Thorpe 3083).
The majority criticizes my citation of these colonial laws.
See ante, at 59–62. But, as much as it tries, it cannot
ignore their existence. I suppose it is possible that, as the
majority suggests, see ante, at 59–61, they all in practice
contained self-defense exceptions. But none of them expressly
provided one, and the majority’s assumption that
such exceptions existed relies largely on the preambles to
these acts—an interpretive methodology that it elsewhere
roundly derides. Compare ibid. (interpreting 18th-century
statutes in light of their preambles), with ante, at 4–5, and
n. 3 (contending that the operative language of an 18thcentury
enactment may extend beyond its preamble). And
in any event, as I have shown, the gunpowder-storage
laws would have burdened armed self-defense, even if they
did not completely prohibit it.
This historical evidence demonstrates that a selfdefense
assumption is the beginning, rather than the end,
of any constitutional inquiry. That the District law impacts
self-defense merely raises questions about the law’s
constitutionality. But to answer the questions that are
raised (that is, to see whether the statute is unconstitutional)
requires us to focus on practicalities, the statute’s
rationale, the problems that called it into being, its rela8
tion to those objectives—in a word, the details. There are
no purely logical or conceptual answers to such questions.
All of which to say that to raise a self-defense question is
not to answer it.
…
VI
For these reasons, I conclude that the District’s measure
is a proportionate, not a disproportionate, response to the
compelling concerns that led the District to adopt it. And,
for these reasons as well as the independently sufficient
reasons set forth by JUSTICE STEVENS, I would find the
District’s measure consistent with the Second Amendment’s
demands.
With respect, I dissent.
V
The Court concludes its opinion by declaring that it is
not the proper role of this Court to change the meaning of
rights “enshrine[d]” in the Constitution. Ante, at 64. But
the right the Court announces was not “enshrined” in the
Second Amendment by the Framers; it is the product of
today’s law-changing decision. The majority’s exegesis has
utterly failed to establish that as a matter of text or history,
“the right of law-abiding, responsible citizens to use
arms in defense of hearth and home” is “elevate[d] above
all other interests” by the Second Amendment. Ante, at
64.
Until today, it has been understood that legislatures
may regulate the civilian use and misuse of firearms so
long as they do not interfere with the preservation of a
well-regulated militia. The Court’s announcement of a
new constitutional right to own and use firearms for private
purposes upsets that settled understanding, but
leaves for future cases the formidable task of defining the
scope of permissible regulations. Today judicial craftsmen
have confidently asserted that a policy choice that denies a
“law-abiding, responsible citize[n]” the right to keep and
use weapons in the home for self-defense is “off the table.”
Ante, at 64. Given the presumption that most citizens are
law abiding, and the reality that the need to defend oneself
may suddenly arise in a host of locations outside the
home, I fear that the District’s policy choice may well be
just the first of an unknown number of dominoes to be
knocked off the table.39
I do not know whether today’s decision will increase the
labor of federal judges to the “breaking point” envisioned
by Justice Cardozo, but it will surely give rise to a far
more active judicial role in making vitally important
national policy decisions than was envisioned at any time
in the 18th, 19th, or 20th centuries.
The Court properly disclaims any interest in evaluating
the wisdom of the specific policy choice challenged in this
case, but it fails to pay heed to a far more important policy
choice—the choice made by the Framers themselves. The
Court would have us believe that over 200 years ago, the
Framers made a choice to limit the tools available to
elected officials wishing to regulate civilian uses of weapons,
and to authorize this Court to use the common-law
process of case-by-case judicial lawmaking to define the
contours of acceptable gun control policy. Absent compelling
evidence that is nowhere to be found in the Court’s
opinion, I could not possibly conclude that the Framers
made such a choice.
For these reasons, I respectfully dissent.
…
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–290
_________________
DISTRICT OF COLUMBIA, ET AL., PETITIONERS v.
DICK ANTHONY HELLER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 26, 2008]
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE
SOUTER, and JUSTICE GINSBURG join, dissenting.
We must decide whether a District of Columbia law that
prohibits the possession of handguns in the home violates
the Second Amendment. The majority, relying upon its
view that the Second Amendment seeks to protect a right
of personal self-defense, holds that this law violates that
Amendment. In my view, it does not.
I
The majority’s conclusion is wrong for two independent
reasons. The first reason is that set forth by JUSTICE
STEVENS—namely, that the Second Amendment protects
militia-related, not self-defense-related, interests. These
two interests are sometimes intertwined. To assure 18thcentury
citizens that they could keep arms for militia
purposes would necessarily have allowed them to keep
arms that they could have used for self-defense as well.
But self-defense alone, detached from any militia-related
objective, is not the Amendment’s concern.
The second independent reason is that the protection
the Amendment provides is not absolute. The Amendment
permits government to regulate the interests that it
serves. Thus, irrespective of what those interests are—
whether they do or do not include an independent interest
in self-defense—the majority’s view cannot be correct
unless it can show that the District’s regulation is unreasonable
or inappropriate in Second Amendment terms.
This the majority cannot do.
In respect to the first independent reason, I agree with
JUSTICE STEVENS, and I join his opinion. In this opinion I
shall focus upon the second reason. I shall show that the
District’s law is consistent with the Second Amendment
even if that Amendment is interpreted as protecting a
wholly separate interest in individual self-defense. That is
so because the District’s regulation, which focuses upon
the presence of handguns in high-crime urban areas,
represents a permissible legislative response to a serious,
indeed life-threatening, problem.
Thus I here assume that one objective (but, as the majority
concedes, ante, at 26, not the primary objective) of
those who wrote the Second Amendment was to help
assure citizens that they would have arms available for
purposes of self-defense. Even so, a legislature could
reasonably conclude that the law will advance goals of
great public importance, namely, saving lives, preventing
injury, and reducing crime. The law is tailored to the
urban crime problem in that it is local in scope and thus
affects only a geographic area both limited in size and
entirely urban; the law concerns handguns, which are
specially linked to urban gun deaths and injuries, and
which are the overwhelmingly favorite weapon of armed
criminals; and at the same time, the law imposes a burden
upon gun owners that seems proportionately no greater
than restrictions in existence at the time the Second
Amendment was adopted. In these circumstances, the
District’s law falls within the zone that the Second
Amendment leaves open to regulation by legislatures.
II
The Second Amendment says that: “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.” In interpreting and applying this Amendment,
I take as a starting point the following four propositions,
based on our precedent and today’s opinions, to which I
believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e.,
one that is separately possessed, and may be separately
enforced, by each person on whom it is conferred. See,
e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS,
J., dissenting).
(2) As evidenced by its preamble, the Amendment was
adopted “[w]ith obvious purpose to assure the continuation
and render possible the effectiveness of [militia] forces.”
United States v. Miller, 307 U. S. 174, 178 (1939); see
ante, at 26 (opinion of the Court); ante, at 1 (STEVENS, J.,
dissenting).
(3) The Amendment “must be interpreted and applied
with that end in view.” Miller, supra, at 178.
(4) The right protected by the Second Amendment is not
absolute, but instead is subject to government regulation.
See Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897);
ante, at 22, 54 (opinion of the Court).
My approach to this case, while involving the first three
points, primarily concerns the fourth. I shall, as I said,
assume with the majority that the Amendment, in addition
to furthering a militia-related purpose, also furthers
an interest in possessing guns for purposes of self-defense,
at least to some degree. And I shall then ask whether the
Amendment nevertheless permits the District handgun
restriction at issue here.
Although I adopt for present purposes the majority’s
position that the Second Amendment embodies a general
concern about self-defense, I shall not assume that the
Amendment contains a specific untouchable right to keep
guns in the house to shoot burglars. The majority, which
presents evidence in favor of the former proposition, does
not, because it cannot, convincingly show that the Second
Amendment seeks to maintain the latter in pristine, unregulated
form.
To the contrary, colonial history itself offers important
examples of the kinds of gun regulation that citizens
would then have thought compatible with the “right to
keep and bear arms,” whether embodied in Federal or
State Constitutions, or the background common law. And
those examples include substantial regulation of firearms
in urban areas, including regulations that imposed obstacles
to the use of firearms for the protection of the home.
Boston, Philadelphia, and New York City, the three
largest cities in America during that period, all restricted
the firing of guns within city limits to at least some degree.
See Churchill, Gun Regulation, the Police Power,
and the Right to Keep Arms in Early America, 25 Law &
Hist. Rev. 139, 162 (2007); Dept. of Commerce, Bureau of
Census, C. Gibson, Population of the 100 Largest Cities
and Other Urban Places in the United States: 1790 to
1990 (1998) (Table 2), online at http://www.census.gov/
population/documentation/twps0027/tab02.txt (all Internet
materials as visited June 19, 2008, and available in
Clerk of Court’s case file). Boston in 1746 had a law prohibiting
the “discharge” of “any Gun or Pistol charged with
Shot or Ball in the Town” on penalty of 40 shillings, a law
that was later revived in 1778. See Act of May 28, 1746,
ch. 10; An Act for Reviving and Continuing Sundry Laws
that are Expired, and Near Expiring, 1778 Massachusetts
Session Laws, ch. 5, pp. 193, 194. Philadelphia prohibited,
on penalty of 5 shillings (or two days in jail if the fine were
not paid), firing a gun or setting off fireworks in Philadelphia
without a “governor’s special license.” See Act of
Aug. 26, 1721, §4, in 3 Mitchell, Statutes at Large of
Pennsylvania 253–254. And New York City banned, on
penalty of a 20-shilling fine, the firing of guns (even in
houses) for the three days surrounding New Year’s Day. 5
Colonial Laws of New York, ch. 1501, pp. 244–246 (1894);
see also An Act to Suppress the Disorderly Practice of
Firing Guns, & c., on the Times Therein Mentioned, 8
Statutes at Large of Pennsylvania 1770–1776, pp. 410–
412 (1902) (similar law for all “inhabited parts” of Pennsylvania).
See also An Act for preventing Mischief being
done in the Town of Newport, or in any other Town in this
Government, 1731, Rhode Island Session Laws (prohibiting,
on penalty of 5 shillings for a first offense and more
for subsequent offenses, the firing of “any Gun or Pistol
. . . in the Streets of any of the Towns of this Government,
or in any Tavern of the same, after dark, on any Night
whatsoever”).
Furthermore, several towns and cities (including Philadelphia,
New York, and Boston) regulated, for fire-safety
reasons, the storage of gunpowder, a necessary component
of an operational firearm. See Cornell & DeDino, A Well
Regulated Right, 73 Fordham L. Rev. 487, 510–512 (2004).
Boston’s law in particular impacted the use of firearms in
the home very much as the District’s law does today.
Boston’s gunpowder law imposed a £10 fine upon “any
Person” who “shall take into any Dwelling-House, Stable,
Barn, Out-house, Ware-house, Store, Shop, or other Building,
within the Town of Boston, any . . . Fire-Arm, loaded
with, or having Gun-Powder.” An Act in Addition to the
several Acts already made for the prudent Storage of Gun-
Powder within the Town of Boston, ch. XIII, 1783 Mass.
Acts 218–219; see also 1 S. Johnson, A Dictionary of the
English Language 751 (4th ed. 1773) (defining “firearms”
as “[a]rms which owe their efficacy to fire; guns”). Even
assuming, as the majority does, see ante, at 59–60, that
this law included an implicit self-defense exception, it
would nevertheless have prevented a homeowner from
keeping in his home a gun that he could immediately pick
up and use against an intruder. Rather, the homeowner
would have had to get the gunpowder and load it into the
gun, an operation that would have taken a fair amount of
time to perform. See Hicks, United States Military Shoulder
Arms, 1795–1935, 1 Am. Military Hist. Foundation 23,
30 (1937) (experienced soldier could, with specially prepared
cartridges as opposed to plain gunpowder and ball,
load and fire musket 3-to-4 times per minute); id., at 26–
30 (describing the loading process); see also Grancsay, The
Craft of the Early American Gunsmith, 6 Metropolitan
Museum of Art Bulletin 54, 60 (1947) (noting that rifles
were slower to load and fire than muskets).
Moreover, the law would, as a practical matter, have
prohibited the carrying of loaded firearms anywhere in the
city, unless the carrier had no plans to enter any building
or was willing to unload or discard his weapons before
going inside. And Massachusetts residents must have
believed this kind of law compatible with the provision in
the Massachusetts Constitution that granted “the people
. . . a right to keep and to bear arms for the common defence”—
a provision that the majority says was interpreted
as “secur[ing] an individual right to bear arms for defensive
purposes.” Art. XVII (1780), in 3 The Federal and
State Constitutions, Colonial Charters, and Other Organic
Laws 1888, 1892 (F. Thorpe ed. 1909) (hereinafter
Thorpe); ante, at 28–29 (opinion of the Court).
The New York City law, which required that gunpowder
in the home be stored in certain sorts of containers, and
laws in certain Pennsylvania towns, which required that
gunpowder be stored on the highest story of the home,
could well have presented similar obstacles to in-home use
of firearms. See Act of April 13, 1784, ch. 28, 1784 N. Y.
Laws p. 627; An Act for Erecting the Town of Carlisle, in
the County of Cumberland, into a Borough, ch. XIV,
§XLII, 1782 Pa. Laws p. 49; An Act for Erecting the Town
of Reading, in the County of Berks, into a Borough, ch.
LXXVI, §XLII, 1783 Pa. Laws p. 211. Although it is unCite
clear whether these laws, like the Boston law, would have
prohibited the storage of gunpowder inside a firearm, they
would at the very least have made it difficult to reload the
gun to fire a second shot unless the homeowner happened
to be in the portion of the house where the extra gunpowder
was required to be kept. See 7 United States Encyclopedia
of History 1297 (P. Oehser ed. 1967) (“Until 1835 all
small arms [were] single-shot weapons, requiring reloading
by hand after every shot”). And Pennsylvania, like
Massachusetts, had at the time one of the self-defenseguaranteeing
state constitutional provisions on which the
majority relies. See ante, at 28 (citing Pa. Declaration of
Rights, Art. XIII (1776), in 5 Thorpe 3083).
The majority criticizes my citation of these colonial laws.
See ante, at 59–62. But, as much as it tries, it cannot
ignore their existence. I suppose it is possible that, as the
majority suggests, see ante, at 59–61, they all in practice
contained self-defense exceptions. But none of them expressly
provided one, and the majority’s assumption that
such exceptions existed relies largely on the preambles to
these acts—an interpretive methodology that it elsewhere
roundly derides. Compare ibid. (interpreting 18th-century
statutes in light of their preambles), with ante, at 4–5, and
n. 3 (contending that the operative language of an 18thcentury
enactment may extend beyond its preamble). And
in any event, as I have shown, the gunpowder-storage
laws would have burdened armed self-defense, even if they
did not completely prohibit it.
This historical evidence demonstrates that a selfdefense
assumption is the beginning, rather than the end,
of any constitutional inquiry. That the District law impacts
self-defense merely raises questions about the law’s
constitutionality. But to answer the questions that are
raised (that is, to see whether the statute is unconstitutional)
requires us to focus on practicalities, the statute’s
rationale, the problems that called it into being, its rela8
tion to those objectives—in a word, the details. There are
no purely logical or conceptual answers to such questions.
All of which to say that to raise a self-defense question is
not to answer it.
…
VI
For these reasons, I conclude that the District’s measure
is a proportionate, not a disproportionate, response to the
compelling concerns that led the District to adopt it. And,
for these reasons as well as the independently sufficient
reasons set forth by JUSTICE STEVENS, I would find the
District’s measure consistent with the Second Amendment’s
demands.
With respect, I dissent.
So, there you have it – the Court made one of the most monumental rulings in years. Blanket handgun bans are unconsitutional, and the 2nd Amendment has, for the first time, been officially legally interpreted – that makes political / Constitutional junkies like me just go crazy – we’ve waited hundreds of years for that interpretation, and now we finally have it.
Done Ranting,
