Archive for the ‘Gun Rights’ Category

D.C. Voting Rights Act is Clearly Unconstitutional

March 4, 2009

Last Thursday, the Senate passed the District of Columbia House Voting Rights Act of 2009, which gives the District of Columbia a voting member in the House of Representatives and eliminates the position of D.C. Delegate, who represents the District now.  Currently, that delegate, Eleanor Holmes Norton, can only vote when her vote does not affect the outcome; however, she is allowed to introduce bills, and this bill was introduced by Norton.  The bill would also give an additional seat to Utah, so that the partisan makeup of the House stayed the same.

S. 160 (formal title: “A bill to provide the District of Columbia a voting seat and the State of Utah an additional seat in the House of Representatives”) was introduced by Senator Joe Lieberman (I-CT).  The bill passed the Senate in by a vote of 61-37, falling mostly along party lines; however, five Republicans voted for it (Susan Collins [R-ME], Orrin Hatch [R-UT], Dick Lugar [R-IN], Olympia Snowe [R-ME], and Arlen Specter [R-PA]), and two Democrats voted against it (Max Baucus [D-MT] and Robert Byrd [D-WV]).

The bill that passed the Senate had been amended by Senator John Ensign (R-NV).  His amendment (S.AMDT. 575) restored several gun rights to the District by repealing the ban on semiautomatic weapons, the registration requirement, the ban on handgun ammunition, and several other laws.  That amendment passed 62-36.

Personally, I am ashamed of the Senate for passing this bill (although I’m glad that gun rights have been restored to the District).  Apparently 61 of our Senators need to go back to eighth grade civics class!

This act is clearly unconstitutional!  Article I, Section 2 of the Constitution says, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”  Washington, D.C. is not a state-it’s just that simple.

Furthermore, Norton never should have been allowed to introduce this bill.  She is unconstitutionally in the House of Representatives.  Section 2 of Article I also says, “No Person shall be a Representative who shall not … be an Inhabitant of that State in which he shall be chosen.”  Norton is not an inhabitant of a STATE, and thus should not be able to introduce legislation in the House!

I am all for the representation of D.C. in Congress; however, this bill is not the way to do that.  If D.C. really was Constitutionally allowed to have a representative, they wouldn’t need a law to get their representation – all they’d need to do is file a court case.  Furthermore, if they deserve representation, why don’t they deserved 2 Senators as well?

If the House passes this bill and President Obama signs it, this bill would probably be the most blatantly unconstitutional law ever written.  At least when President Bush violated the Constitution, he did so in ways that were debatable as to whether or not he actually violated the Constitution, but this bill takes Article I, Section 1 and says, “That’s not an important part of the Constitution.”  Find me any time that President Bush DIRECTLY violated the Constitution – he  didn’t.  The violations of the 4th Amendment were debatable.  I personally think that he violated the 4th Amendment, but there are ways that you could argue that he did not; however, with this bill, nobody with an ounce of sanity can argue that this is Constitutional!

Does anybody else find it ironic that the same Senators who complained about President Bush’s debatably unconstitutional laws just voted in favor of a law that directly and clearly goes against the very wording of the Constitution?  Come on!

Proponents of the bill claim that the “District Clause” (Article I, Section 8 of the Constitution) allows for the Congress to give D.C. a Representative.  The text of that clause reads, “[The Congress shall have Power] To exercise exclusive Legislation in all Cases whatsoever, over such District … as may … become the Seat of the Government of the United States.”

“Exclusive Legislation” only gives Congress the right to govern the District, not magically ignore Article I, Section 2 of the Constitution when it comes to the District.

This bill is blatantly unconstitutional, and those who voted for it and criticized the Bush administration ought to be ashamed of themselves.  Fortunately the Supreme Court still respects the Constitution, and I am willing to bet that they will declare this unconstitutional in a heartbeat – in fact, I really don’t see any of the 9 Justices siding with the Senate.  If they do, they are shaming the Constitution and the office of Justice of the Supreme Court!

Even my liberal roommate agrees – this bill is CLEARLY unconstitutional!

Done Ranting,

Ranting Republican
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Supreme Court Rules that the 2nd Amendment Means (Most) Anyone Can Have a Gun

June 26, 2008

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,

Ranting Republican
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Charlton Heston, Actor and Conservative Icon Has Passed Away

April 6, 2008

Charlton Heston, the actor in the classic movies The Ten Commandments, Ben-Hur, and Planet of the Apes passed away at the age of 84, his family is reporting.

Heston was an icon to conservatives.  He started off as a liberal and a Democrat, campaigning for Adlai Stevenson and John F. Kennedy, but later in life, he became a conservative and a Republican, taking up issues such as affirmative action, gun rights, and abortion.  He even campaigned for Ronald Reagan, George H. W. Bush, and George W. Bush.  In 1996, he spoke at the Conservative Political Action Conference (CPAC) and he was the president and spokesman of the National Rifle Association from 1998 to 2003.  One of his most famous quotes was directed at Al Gore in the 2000 election, saying that he wold take away his Second Amendment rights “from my cold, dead hands.”

Today, he has gone on to spend eternity with the Lord, but he will always remain a true conservative and an icon to many here on earth.

I’ll leave you with my favorite video clip of his:

We’ll miss you Mr. Heston.

~~Ranting Republican
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