Americans have an individual right to possess and use firearms, even when the guns are not related to service in a government militia.
In a historic ruling, the US Supreme Court on Thursday declared 5 to 4 that the Second Amendment's guarantee of a right to "keep and bear arms" means that the government cannot enact an outright ban on certain commonly held weapons or otherwise prevent citizens from having a gun at home for personal protection or other lawful uses.
The landmark constitutional pronouncement came as the nation's highest court struck down a 32-year ban on private possession of handguns in Washington, D.C. The court also invalidated two other strict gun-control measures in the district that required that rifles and shotguns at all times be kept disassembled or secured with a trigger lock. The case is District of Columbia v. Heller.
"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,” Justice Antonin Scalia wrote in the majority opinion.
The majority justices said the District’s strict gun regulations violated “the right of law-abiding responsible citizens to use arms in defense of hearth and home.”
In a dissent, Justice Stephen Breyer said the case would spawn unfortunate consequences. “The decision threatens to throw into doubt the constitutionality of gun laws throughout the United States,” Justice Breyer wrote. “I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission.”
Scalia and the majority justices declined to spell out precisely the legal standard future courts should use in weighing whether someone’s Second Amendment right had been infringed. But they left no doubt that it is a robust one.
“Under any standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family, would fail constitutional muster,” Scalia wrote.
While the high court struck down the Washington, D.C., regulations, it remains unclear how many other gun-control measures may now be on shaky constitutional ground. Some analysts suggest that a handgun ban in Chicago, similar to the ban in Washington, may emerge as the next constitutional battleground over gun rights.
Scalia sought to address concerns by many critics – and the dissenting justices – that such a ruling might lead to an arms race among American homeowners stocking up with machine guns, grenades, and rocket launchers.
“The right secured by the Second Amendment is not unlimited,” Scalia wrote. “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” he said. The opinion did not undermine laws “forbidding the carrying of firearms in sensitive places such as schools and government buildings,” he said.
He added that the opinion did not undercut laws imposing conditions and qualifications on the commercial sale of arms.
A right to rifles and handguns only?
In addition, in the opinion’s most significant limitation, the majority justices said the Second Amendment provides a right for Americans to possess the sorts of weapons that were in common use at the time of the drafting of the amendment – meaning rifles and handguns. “We think that limitation is fairly supported by the historical tradition prohibiting the carrying of ‘dangerous and unusual weapons,’ ” Scalia said.
There are an estimated 200 million privately owned firearms in the United States, including 60 million to 65 million handguns, according to the National Rifle Association.
Guns and gun control has so far not emerged as a significant issue in the presidential campaigns. But the ruling could spark a national debate.
In May, a Harris poll found that 47 percent of Americans viewed the Second Amendment as providing an individual right, while 17 percent believed it safeguarded a collective right permitting states to form and arm militias.
The poll also found that 49 percent of US adults want stricter gun-control laws, down from 69 percent 10 years ago. Twenty percent said they want less strict gun regulations, while 21 percent favored no change.
The Supreme Court last confronted the gun rights issue 69 years ago in a 1939 case called US v. Miller. The decision in that case did not resolve a longstanding debate over the meaning of the Second Amendment and the nature of the rights it purported to protect.
The Second Amendment reads: “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.”
Many legal scholars held the view that the amendment only protected the right to keep and bear arms within the context of service in a state militia, such as the current National Guard. But other scholars said that because the amendment speaks of a right of “the people,” the provision was protecting an individual right.
‘No doubt’ of an individual’s right
“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms,” Scalia said.
In a dissent, Justice John Paul Stevens took issue with the majority’s conclusion. “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia,” Stevens wrote.
“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,” he said.
“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,” he said. “The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding.”
Stevens added, “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.”
Thursday’s decision stems from a lawsuit filed by Dick Anthony Heller, a security guard who lives in Washington, D.C. Mr. Heller wanted to keep a handgun in his home for protection, but the city government refused to issue a permit, citing its strict gun control laws.
Heller sued, charging that the handgun ban and other measures violated his Second Amendment right to keep and bear arms.
A federal judge threw the case out, ruling that since Heller was not a member of a militia he had no constitutional right to firearms. But that decision was reversed 2-1 by a panel of the US Court of Appeals for the D.C. Circuit. The appeals court found that the right to arms established in the Second Amendment is broader than a direct link to a militia.
In appealing to the Supreme Court, lawyers for the city argued that the Second Amendment protects only militia-related firearms rights, not the personal use and possession of firearms. The city’s lawyers said the first clause of the amendment limits the scope of the entire amendment.
Lawyers for Heller characterized the amendment’s first clause as merely a preamble to what they said was the rights-securing language in the second clause.
In Thursday’s decision, the majority justices agreed with Heller’s reading. “Does the preface fit with an operative clause that creates an individual right to keep and bear arms?” Scalia asked in his opinion. “It fits perfectly, once one knows the history that the founding generation knew,” he said.
“That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms,” he wrote.
In his opinion, Scalia, himself an accomplished hunter, attempted to tackle what will probably emerge as a key debate point among some gun rights advocates.
“It may be objected that if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause,” he wrote. “But as we said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”
In effect, the high court is saying there is no constitutional right to the private possession of modern, military-grade weapons. “It may be true that no amount of small arms could be useful against modern-day bombers and tanks,” Scalia wrote. “But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”