Supreme Court Affirms Second Amendment Protects an Individual Right
By Robert P. Firriolo, SAFE Legal Advisor to the Board

For the first time in history, the United States Supreme Court struck down a gun control law on Second Amendment grounds and made clear that the amendment protects a pre-existing, individual right to keep and bear arms for purposes unrelated to service in the militia, such as self-defense and hunting. The case is known as District of Columbia v. Heller, and it was handed down on June 26th.

Associate Justice Antonin Scalia authored the opinion of the court's 5-4 majority. He applied a remarkably thorough historical and textual analysis of the Second Amendment to totally refute the notion that the right to keep and bear arms is a "collective right" that only applies to militia service. Scalia analyzed each part of the Second Amendment, finding that "the right of the people" "unambiguously refer[s] to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body." After considering the meanings of "keep" and "bear" individually, the court concluded that taken together, "they guarantee the individual right to possess and carry weapons in case of confrontation."

The "arms" protected by the Second Amendment were found to be the same kind protected when the amendment was ratified in 1791: [T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." The types of arms protected are those "in common use" by ordinary citizens. Handguns are clearly protected arms and were found by the court to be particularly suitable for home defense.

Though the court did not have occasion to discuss them, military-style semi-automatic rifles (misnamed "assault weapons" by the anti-gun rights lobby) would clearly be protected under the court's definition of "arms." Such rifles are "in common use" now by "the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home." Ironically, these guns have become far more "common" in the homes of ordinary citizens due in significant part to efforts to ban them in the last two decades.

Disappointingly, the court implied that "M-16s and the like" would not be within the protection of the Second Amendment because they are not "in common use at the time" and are not "the sorts of lawful weapons . . . possessed at home [for] militia duty." The flaw in the court's reasoning is that if machineguns are truly not "common," it is largely because they have been restricted by taxes and red tape since 1934, and partially banned since 1986. Any lack of commonality is probably not because people chose not to possess them. Moreover, this dicta (explanatory language which is not binding because it was not part of the decision's reasoning) conflicts with earlier Supreme Court precedent (discussed below) that found that the weapons protected by the Second Amendment are those particularly suited to military service. As the United States' standard service rifle, M16s and their relatives are doubtless the very arms that are particularly suited to military service today.

Heller destroys the anti-gunners' reliance on the 1939 Supreme Court decision United States v. Miller to support their contrived "collective right" theory. Scalia explained that in Miller, the court found that "the type of weapon at issue was not eligible for Second Amendment protection. . . . This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that 'have some reasonable relationship to the preservation or efficiency of a well regulated militia')."

While the high court invalidated a total ban on functional handguns in the home, the decision went out of its way to make clear that certain gun laws are permissible under the Second Amendment: "[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Scalia also acknowledged that Heller does not address every aspect of the Second Amendment, and that more cases are inevitable: "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. . . 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." That means the court is expecting that more challenges to gun laws will work their way up to the Supreme Court in the future.

But what standard will the federal courts use to review challenges to those other laws? The majority did not explicitly adopt a standard of review, but we know it is not the so-called "rational basis" test-the least stringent level of review-which easily upholds laws as constitutional as long as the government shows that the law is a rational means to a legitimate end. That's good news for the gun-rights side.

Scalia acknowledged that had rational review been the proper standard, the D.C. law would not have been struck down. Significantly, in explaining why rational review was inappropriate, he grouped the right to keep and bear arms with other rights afforded the highest level of review-strict scrutiny: "Obviously, the same [rational basis] test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms . . . . If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."

There is therefore good reason to hope that federal courts reviewing other gun laws in the months and years to come will be required to apply strict scrutiny. This will require that governments prove that challenged gun laws are narrowly tailored to achieve a compelling government interest using the least restrictive means. This has traditionally been a very difficult test to meet and has resulted in striking down numerous laws restricting a variety of fundamental Constitutional rights.

The Heller decision is likely to open the floodgates to challenges of gun laws across America-some well thought out and carefully planned, and others hastily brought and ill-conceived. Prime targets for immediate challenge are handgun bans in San Francisco and Chicago. As for New York's gun laws, the state ban on "assault weapons" is open to immediate challenge, given the court's definition of what "arms" are protected. And while the state's handgun licensing system as a whole is probably not called into question by the Heller decision (which did not strike down D.C.'s licensing provision), the application of New York's laws could be ripe for challenge. For example, New York City charges $340 for a two-year license and Nassau County charges $200 for a five-year license-even to keep a handgun in the home. The ability to get away with such outrageous fees has come from a series of state court rulings that consistently found that handgun ownership in New York is a privilege, and not a right. That basis no longer applies in light of the Heller decision. These local governments will now have the burden of justifying their fees and procedures, which are arguably undue burdens on a fundamental Constitutional right.

Heller is without a doubt one of the most momentous and important rulings from the Supreme Court in recent memory. It reaffirmed that the right to keep and bear arms is a constitutionally protected, individual right-something surveys repeatedly showed that a large majority of Americans already understood. It also exposed the "collective right" theory as a monumental fraud, which we know was created through distortions and misinterpretations of the Miller ruling, and through a decades-long campaign of disinformation in the media and academia by the gun control lobby.

The 5-4 ruling also serves to remind us that the power of the President of the United States to nominate Supreme Court judges may be the one that has the most impact in our day-to-day lives. Had Al Gore or John Kerry been elected instead of George W. Bush, there is no doubt his nominees-Justice Alito and Chief Justice Roberts-would not have been on the court to vote with the majority in Heller. Instead, we'd have two or more clones of Ruth Bader Ginsburg on the court, turning our majority into a minority. Considering that several justices are close to retirement age, the next president will be probably nominate at least one or two replacement justices. Keep that in mind in November.