Second Amendment Showdown
Friday, May 16, 2008
The U.S. Supreme
Court heard District of Columbia v. Heller, a monumental Second
Amendment case that will likely decide whether you have an
individual right to keep and bear arms.
By Frank Miniter
In March, the debate over whether Americans have an individual
right to own guns made it into the marble halls of the U.S. Supreme
Court. The case is District of Columbia v. Dick Anthony
Heller, and it has garnered headlines across the nation.
Unlike most constitutional questions in which there are enough past
cases to give judges a roadmap, the last Supreme Court precedent
directly interpreting the Second Amendment is the 1939
Miller decision, a decision so limited that even the
Supreme Court says it has "never clearly decided" if the Second
Amendment protects an individual right.
Without a clear precedent to follow, the court is looking all
the way back to our founding era for direction. After the American
Revolution and the ratification of the U.S. Constitution, James
Madison drafted the Bill of Rights in 1789 and Congress acted on it
in 1791, as it had promised it would after George Mason and others
argued that the Constitution failed to protect the basic principles
of human liberty. The first Congress then edited, debated and sent
a proposed list of 12 amendments to the states, which ratified ten.
Those ten amendments became our Bill of Rights. The Second
Amendment ("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") has stood for more than two
centuries as a bulwark for personal liberty--a right that literally
makes the frailest woman the equal of the brawniest felon.
It's a right that has increasingly been attacked by those
who would prefer to rewrite the Second Amendment into something
that only protects state militias, not individual
Washington, D.C. is arguing it can ban handguns because,
according to its logic, people don't have a right to keep and bear
arms unless they are members of a government-regulated militia.
Dick Anthony Heller, however, is contesting that claim by arguing
that D.C has infringed his Second Amendment rights. Heller is a
security guard who carries a handgun while on duty guarding the
federal building that houses the administrative offices of the
federal court system, but he has to turn in his handgun when he
goes home; as a result, he wants to be able to keep a handgun at
home for self-defense. But D.C. turned down his request to register
a handgun. So, though he is allowed to guard the government with a
firearm, he has been denied the right to guard himself. This moral
dilemma is the result of D.C.'s handgun ban, passed in
This clear confrontation set up a constitutional question
that the Supreme Court defined this way: "Whether [provisions of
the D.C. firearms code] violate the Second Amendment rights of
individuals who are not affiliated with any state-regulated
militia, but who wish to keep handguns and other firearms for
private use in their homes?"
Though a decision isn't expected until June, here's what
happened in the courtroom and how a ruling might affect your
On March 18, the sun rose upon a line of 200 people who
waited all night on the steps of the U.S. Supreme Court in
Washington, D.C. for a chance to see this historic case. Nearly as
many journalists were setting up TV cameras and conducting
interviews. An informal survey of the people in line found it was
loaded with Second Amendment adherents. It seemed like even more
evidence that the clear majority of the American people understand
that the Right to Keep and Bear Arms is a fundamental individual
right--though the whimsical notion that the Brady Campaign vassals
were too timorous to spend a night on D.C.'s crime-ridden streets
occurred to a few.
The long line of expectant people prompted NRA President
John Sigler to comment, "I'm pleasantly surprised and impressed by
the number of people lining up and camping out to witness this
monumental case. It demonstrates the significance of this cherished
freedom to gun owners and the American people."
Beyond the pulsating scene on the steps of the Supreme
Court, those lucky enough to get inside found the court's marble
halls and church-quiet atmosphere filled with people waiting to
make or witness history. The staid scene inside highlighted the
fact that the presidents we elect appoint justices who then
determine the scope of our rights. Journalists anxiously shuffled
their feet. Justices stoically took their seats along their bench.
The two opposing attorneys readied arguments designed to influence
history. And the hot air of politics dissipated into the physical
embodiment of our fundamental rights, imbuing all with the notion
that the founding fathers would be listening.
Debate on the Amendment's
After dozens of lower court decisions, one very narrow
1939 Supreme Court decision, a library of books on the Second
Amendment and decades of NRA advocacy, two lawyers with opposing
views and just 30 minutes apiece were poised to state their cases.
On one side was D.C.'s Walter Dellinger, a 1966 Yale Law School
graduate who was acting solicitor general under President Bill
Clinton, arguing that Americans don't have the right to own
handguns or keep functional firearms in their homes. On the other
was Alan Gura, a 1995 graduate of the Georgetown University Law
Center, contending that the Second Amendment clearly protects an
individual's right to own firearms and that D.C.'s handgun ban is
Dellinger led off for D.C. He summed up his case by
saying, "Even if the language of keeping and bearing arms were
ambiguous, the [Second] Amendment's first clause confirms that the
right is militia related."
Chief Justice John Roberts was quick to question this
assertion: "If it is limited to state militias, why would they say
'the right of the people?' In other words, why wouldn't they say
'state militias have the right to keep arms?'" Indeed, the Framers
certainly were capable of differentiating between the words "state"
and "people." This is clear from the text of the Amendment itself,
which guarantees "the right of the people to keep and bear Arms."
Also, throughout the Constitution, individual rights are guaranteed
to "the people." When the Framers refer to a power of a state, they
refer to "the states." In fact, in the Tenth Amendment the Framers
refer both to the "people" and to the "states," demonstrating that
they were capable of distinguishing between individual and state
After a little more sparring, Justice Anthony Kennedy
asked whether "the second clause [of the Second Amendment], the
operative clause, is related to something other than the militia."
And then pressed further by asking, "It had nothing to do with the
concern of the remote settler to defend himself and his family
against hostile Indian tribes and outlaws, wolves and bears and
grizzlies and things like that?"
Dellinger wasn't able to answer that question, and was
redirected when Justice Antonin Scalia moved the debate to what the
Framers originally intended. Justice Scalia pointed out, "[the
English jurist] Blackstone ... thought the right of self-defense
was inherent, and the Framers were devoted to Blackstone. Joseph
Story, the first commentator on the Constitution and a member of
this court, thought it was a personal guarantee."
Dellinger tried to address Justice Scalia's point by
saying, "When Blackstone speaks of the personal guarantee, he
describes it as one of the use of weapons, a common law right. And
if we're constitutionalizing the Blackstone common law right, he
speaks of a right that is subject to due restrictions and applies
to, quote, 'such weapons, such as are allowed by law.' So
Blackstone builds in the kind of reasonableness of the regulation
that the District of Columbia has. Now then ... ."
Chief Justice Roberts interrupted him by pointing out:
"Well, that may be true, but that concedes your main point that
there is an individual right."
Dellinger tried another approach by arguing that the
Second Amendment modified the militia clause in the U.S.
Constitution, which prompted Justice Kennedy to ask, "The Second
Amendment doesn't repeal [the militia clause]. You don't take the
position that Congress no longer has the power to organize, arm and
discipline the militia, do you?"
Dellinger replied, "No." Then Justice Kennedy said, "So
[the Second Amendment] was supplementing it. And my question is ...
to what extent did it supplement it? And in my view it supplemented
it by saying there's a general right to bear arms quite without
reference to the militia either way."
Dick Heller's attorney, Alan Gura, was later questioned
heavily on the relationship of the two clauses in the Second
Amendment. He argued that the amendment was designed to protect the
civilian militia and that the second part of the clause ("the right
of the people to keep and bear Arms, shall not be infringed")
protects firearms that are in common use because citizens were
required to bring their own arms when called to duty. Justice John
Paul Stevens questioned this assertion by pointing out that the
Second Amendment doesn't mention self-defense, which Gura parried
by saying it was clear that the states' constitutional ratifying
conventions favored the individual rights view.
Does D.C.'s Gun Ban Work?
Whether D.C.'s gun ban has reduced violent crime is a
critical question pertaining to D.C.'s position that its handgun
ban is reasonable. Though Dellinger argued its gun ban has reduced
crime, the facts are not on D.C.'s side. Violence increased after
the 1976 ban, peaking in 1991 with 482 homicides and giving
Washington the highest murder rate in the country. The numbers have
since fallen, but with 169 homicides in 2006, D.C. is still
consistently one of the country's most dangerous cities.
In fact, the NRA's "friend-of-the-court" brief in the case
exposes the results of the ban: "In 2006--three decades after the
handgun ban was enacted--the District's murder rate remained 29.1
per 100,000, only 11.3 percent lower than the 1975 rate of 32.8.
The nationwide murder rate, on the other hand, fell from 9.6 to 5.7
per 100,000 during this period, a far greater decline of 40.6
percent. Murder rates in the District are not only far higher than
in the nation as a whole (in 2006, the District's rate was more
than five times the national average), they are also greater than
in most other comparably sized cities ... . All told, whatever the
District's expectations in enacting the handgun ban in 1976, three
decades of evidence conclusively demonstrate that it has been an
absolute failure. It has burdened the Second Amendment rights of
the District's residents to very little, if any, effect. It is long
past time for the District's experiment, at the expense of
law-abiding citizens, to end."
Could All Gun Laws Be Struck
D.C. further argued that an individual rights ruling could
toss out all gun regulations, federal, state and local. However,
the justices discussed and largely dismissed this wild assertion on
the grounds that other individual rights, such as the First
Amendment, are subject to reasonable limits, such as a restriction
on falsely shouting "Fire!" in a crowded theatre. The full meaning
of whatever the Court decides will be vetted in the political
arena; the decision will not simply erase all gun laws.
U.S. Solicitor General Paul D. Clement, who was granted 15
minutes to give the federal government's view of the case, explored
this point. He began by declaring that the Justice Department's
position is that the Second Amendment guarantees an individual
right. He further argued that the case should be sent back to the
lower courts with a new standard of review, one of "intermediate
scrutiny." This is an important legal point, because the standard
of review will essentially determine how high a bar the government
has to clear in order to justify a regulation restricting the
right. "Strict scrutiny" is the most protective and is accorded to
rights the court deems "fundamental." The First Amendment, for
example, has this protection. This is why the NRA's
friend-of-the-court brief argued for strict scrutiny.
Justice Ginsburg asked if a strict scrutiny standard would
make many of the firearm regulations already on the books
unconstitutional. Clement answered that strict scrutiny could
imperil some laws, but "intermediate scrutiny" would not. Chief
Justice Roberts then said, "I'm not sure why we have to articulate
some very intricate standard. I mean, these standards that apply to
the First Amendment just kind of developed over the years as a sort
of baggage that the First Amendment picked up."
What Restriction is
Beyond D.C.'s contention that there isn't an individual
Right to Keep and Bear Arms, it is also D.C.'s position that its
outright ban on handguns and operable long guns in the home are
somehow reasonable, even though they preclude any chance of a
person using a gun to defend himself or his loved ones. Dellinger
argued that the court should consider that 42 states have "adopted
a reasonableness standard that allowed them to sustain sensible
regulation of dangerous weapons." Chief Justice Roberts attacked
Dellinger's effort to associate these state rules with D.C.'s more
restrictive law, asking, "What is reasonable about a total ban on
Dellinger contended that it is reasonable to have an
outright ban on handguns because residents of D.C. can own a long
gun, which prompted Justice Samuel Alito and other justices to
point out that it isn't reasonable because residents have to keep
rifles and shotguns locked and unloaded. In fact, the Court later
explored this point by asking Dellinger how long it takes to take
off a trigger lock. After a lot of "ums" and "ahs" he said, "It
took me three seconds." To which Chief Justice Roberts chided, "You
turn on the light, you pick up your reading glasses ...
The marble pillars bounced laughter back and forth for a
light moment before the justices continued to dig into what the
relative term "reasonable" means. They discussed what firearms
might be protected by the Second Amendment, and deliberated whether
licensing and other control measures were reasonable.
When Gura summed up his position by saying that the
District of Columbia "simply doesn't trust the people to defend
themselves in their homes," Justice Stephen Breyer asked Gura, "In
light of [the number of people killed by firearms every year] why
isn't a ban on handguns, while allowing the use of rifles and
muskets [sic], a reasonable or a proportionate response on behalf
of the District of Columbia?"
Gura responded that "the handgun ban serves to weaken
America's military preparedness." Keeping an armed populace that is
proficient with firearms is certainly in keeping with what the
founding fathers intended and, in fact, is the reason the NRA was
formed after the U.S. Civil War. However, the discussion on what is
a reasonable restriction on Second Amendment rights showed that
even if the Court affirms that the Second Amendment protects an
individual right, this question of "reasonable" gun control will
define the next epoch of legislative debates and is why a strong
NRA will remain critical. After all, the Brady Campaign calls its
anti-gun postures "sensible" and "reasonable" in an effort to make
them seem acceptable.
Court of Public Opinion
Back outside, the television cameras were positioned to
hear testimony in the court of public opinion.
The attorneys and some politicians gave their sound bites
and the Brady Campaign, which had wrangled up eight activists, were
thronged together in front of the thickest section of cameras to
give them their background.
This exhibition provoked someone to shout, "I wish I had a
sign to hold up there. America should know there's a
constitutionally correct point of view."
Meanwhile, NRA Executive Vice President Wayne LaPierre
said after leaving the court, "We remain hopeful that the Supreme
Court will agree with the overwhelming majority of the American
people that the Second Amendment guarantees an individual Right to
Keep and Bear Arms, and that Washington, D.C.'s ban on any
functional firearm in the home is unconstitutional. I believe our
founding fathers intended our Right to Keep and Bear Arms to be no
less important than our freedom of speech or our freedom to
"This 'collective right' notion is a 20th century sham.
And the revisionist historians have only made this claim against
the Second Amendment," added Chris W. Cox, NRA's chief
"The American people--whether Democrat or Republican,
urban or rural--know that the Second Amendment was not written to
give a right to the government, but rather to guarantee the
fundamental right of individual citizens."
Then as the two opposing attorneys came out to talk to the
media, off to the side on the steps of the Supreme Court, Heller
was asked why he has given so much of his life to this case. Heller
answered, as he has many times, "It is wrong for the government to
tell me that it's okay for me to have a gun during my work hours,
but illegal for me to have a gun when the only thing I want to
protect is me."
Another journalist asked how Heller felt about D.C. Mayor
Adrian M. Fenty's point that the District's ban on handguns is a
result of violent crime. As if on cue, Mayor Fenty, who says
citizens of D.C. don't have the right to defend themselves,
finished his remarks and began to scurry away, surrounded by a
group of armed police officers. This prompted Heller to point to
Fenty's armed entourage and to make the point that taxpayers pay
for Fenty's protection, yet can't defend themselves.
The Supreme Court's decision is expected in June. Whatever
the ruling, the battle for your rights won't end there. But one
thing you can count on is that the NRA will continue to fight for
our constitutional Right to Keep and Bear Arms, whatever the