Constitutional Law

Second Amendment Confers Individual Right To Possess Arms

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In District of Columbia v. Heller (2008) 554 U.S. __, 128 S.Ct. 2783, 171 L.Ed.2d 637, the District of Columbia made handgun possession a crime by requiring the registration of firearms but prohibiting the registration of handguns. Defendant District’s law also required residents to keep lawfully owned firearms, such as registered long guns, unloaded and dissembled or bound by a trigger lock or similar device, unless these guns were located in a place of business or were being used for lawful recreational activities. Plaintiff, a special police officer authorized to carry a handgun while on duty, applied for a registration certificate for a handgun that he wished to keep at home, but a certificate was denied. He thereafter filed this action, on Second Amendment grounds, to enjoin defendant from enforcing both the bar on the registration of handguns and the trigger-lock requirement insofar as it prohibited the use of functional firearms within the home. The trial court dismissed plaintiff’s complaint, but the Court of Appeals reversed and directed the trial court to enter summary judgment for plaintiff. Held, judgment of the Court of Appeals affirmed.

(a) Second Amendment language.

(1) Introduction. The Second Amendment 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.” Defendant argues that the Second Amendment protects only the right to possess and carry firearms in connection with militia service, while plaintiff contends that it protects an individual right to possess firearms not connected with militia service, and to use those arms for traditionally lawful purposes, such as self-defense within the home. Plaintiff’s interpretation is correct. The prefatory clause, rather than limiting the operative clause grammatically, announces a purpose, and logic dictates that there be a link between the stated purpose and the operative clause’s command. Thus, the prefatory clause may resolve an ambiguity in the operative clause, but, apart from that clarifying function, the prefatory clause does not limit or expand the scope of the operative clause. (128 S.Ct. 2789, 171 L.Ed.2d 648.)

(2) Operative clause: right of the people. The original Constitution and the Bill of Rights use the phrase “right of the people” or similar language three times other than in the Second Amendment. All three of these usages unambiguously refer to individual rights, not collective rights or rights that may be exercised only through participation in some corporate body. Three provisions of the Constitution refer to “the people” in a context other than rights. These provisions arguably refer to “the people” acting collectively, but they deal with the reservation of powers. (128 S.Ct. 2790, 171 L.Ed.2d 650.) In the six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not to an unspecified subset. This contrasts markedly with the term “militia” in the prefatory clause, because the “militia” in colonial America consisted of a subset of “the people,” i.e., those who were male, able-bodied, and of appropriate age. Thus, reading the Second Amendment as protecting only the right to “keep and bear arms” in an organized militia fits poorly with the operative clause's description of the holder of that right as “the people.” (128 S.Ct. 2790, 2791, 171 L.Ed.2d 650, 651.)

(3) Operative clause: keep and bear arms.

(a) The term “arms” was applied, in colonial times as now, to weapons not specifically designed for military use and not employed in a military capacity. And the term is not limited to those arms that were in existence in the 18th century. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms. (128 S.Ct. 2791, 171 L.Ed.2d 651.)

(b) “Keep arms” was, in colonial times, a common way of referring to possession, and to “bear arms” simply meant “to carry.” (128 S.Ct. 2791, 171 L.Ed.2d 651.) Neither phrase applied only to carrying weapons in an organized military unit. The phrase “bear arms” also had an idiomatic meaning that was significantly different: i.e., to serve as a soldier, do military service, fight, or wage war. However, “bear arms" unequivocally had that idiomatic meaning only when followed by the preposition “against,” followed by the target of the hostilities. Without that preposition, “bear arms” meant, as it continues to mean today, carrying a weapon on the person for the purpose of being ready for offensive or defensive action in case of a conflict with another person. (128 S.Ct. 2793, 2794, 171 L.Ed.2d 653, 654.)

(c) The first dissent places great weight on the inclusion of the following conscientious-objector clause in the original draft of the Second Amendment: “no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” The dissent contends that this clause establishes that the drafters of the Second Amendment intended “bear Arms” to refer only to military service. This position is without merit. The clause was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Rather, the most natural interpretation of the clause is that those opposed to carrying weapons for potential violent confrontation would not be compelled to render military service. (128 S.Ct. 2796, 171 L.Ed.2d 656.)

(4) Meaning of operative clause. This textual analysis shows that the Second Amendment guarantees the individual right to possess and carry weapons in case of confrontation, a preexisting right created in England in response to attempts by the Crown to disarm its enemies. (128 S.Ct. 2797, 2798, 171 L.Ed.2d 657, 658.) Thus, when King George III attempted to disarm the rebellious colonists, it was only natural that they invoked the right of Englishmen to bear arms, a right that had nothing to do with military service. (128 S.Ct. 2799, 171 L.Ed.2d 659.)

(5) Prefatory clause: well-regulated militia. In colonial times, the militia was comprised of all males physically capable of acting in concert for the common defense (see United States v. Miller (1939) 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed.2d 1206, 7 Summary (10th), Constitutional Law, §181). (128 S.Ct. 2799, 171 L.Ed.2d 659.) Defendant argues that, under the Militia Clauses of the Constitution (U.S. Const., Art. I, §8) militias were regulated military forces. This argument is incorrect, because it focuses on the wrong thing, i.e., the organized militia. Unlike armies and navies, which Congress is given the power to create, the militia is assumed by Article I to be in existence. For example, U.S. Const., Art. I, §8, gives Congress the power to organize “the” militia, connoting a body already in existence, not to organize “a” militia, which is what one would expect if the militia were to be a federal creation. The adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. (128 S.Ct. 2800, 171 L.Ed.2d 660.)

(6) Prefatory clause: being necessary for the security of a free state. In the 18th Century, “a free state” was a term of art meaning “a free country” or “a free polity.” Accordingly, when “state” is used in the Constitution to designate a particular state, rather than all the states, it is usually accompanied by a modifier, such as “each,” “one,” or "that.” The militia was thought to be necessary to the security of a free state to repel invasions or insurrections, to render large standing armies unnecessary, and to resist tyranny. (128 S.Ct. 2800, 171 L.Ed.2d 660, 661.)

(7) Relationship between prefatory clause and operative clause. The prefatory clause fits perfectly with the operative clause, given the history that the founding generation knew, i.e., that tyrants had eliminated a militia of all the able-bodied men not by banning the militia, but by taking away the people's arms, thereby enabling a select militia or standing army to suppress political opponents. This is what had occurred in England and prompted codification, in the English Bill of Rights, of the right to bear arms; this was the reason that right, unlike other English rights, was codified in the United States Constitution. When viewed in the light of this history, it is entirely sensible to conclude that the purpose of the Second Amendment's prefatory clause was to prevent elimination of the citizens’ militia. (128 S.Ct. 2801, 171 L.Ed.2d 661, 662.) Defendant claims that the organized militia, not the citizens’ militia, was the sole institutional beneficiary of the Second Amendment right to keep and bear arms. However, this interpretation does not assure the existence of a citizens' militia as a safeguard against tyranny, because, under U.S. Const., Art. I, §8, Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. In other words, if defendant is correct, the Second Amendment protects a citizen’s right to use a gun in an organization from which Congress has plenary authority to exclude them, and thus guarantees a select militia of the sort that the English kings found useful in spreading tyranny. This is not the people's militia that was the concern of the founders. (128 S.Ct. 2802, 171 L.Ed.2d 662.)

(b) Supreme Court decisions arguably foreclosing interpreting Second Amendment as conferring individual right. United States v. Cruikshank (1875) 92 U.S. 542, 23 L.Ed 588, held that the Second Amendment applies only to the federal Government, and that the states are free to restrict or protect the right the right to bear arms for lawful purposes under their police powers. There was no claim in Cruikshank that persons had been deprived of their right to carry arms in a militia. Indeed, the discussion in Cruikshank makes little sense if the Second Amendment grants only the right to bear arms in a state militia. (128 S.Ct. 2813, 171 L.Ed.2d 664.) Presser v. Illinois (1886) 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615, 7 Summary (10th), Constitutional Law, §181, held that the Second Amendment does not prevent the prohibition of private paramilitary organizations, but says nothing about its meaning or scope. United States v. Miller, supra, upheld, against a Second Amendment challenge, federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce. The basis of the opinion was that the type of weapon at issue was not eligible for Second Amendment protection. (128 S.Ct. 2813, 2814, 171 L.Ed.2d 675.) “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Thus, nothing in this Court’s precedents precludes the holding that the Second Amendment protects an individual right to possess firearms not connected with service in a militia. (128 S.Ct. 2816, 171 L.Ed.2d 677.)

(c) Right applied to defendant’s law.

(1) The inherent right of self-defense is central to the Second Amendment right. Yet defendant’s handgun ban amounts to a prohibition of the class of arms that is overwhelmingly chosen by American society for that lawful purpose. Moreover, the prohibition extends to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that have been applied to constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protecting one's home and family fails constitutional muster. (128 S.Ct. 2817, 171 L.Ed.2d 679.) Defendant’s requirement that handguns in the home be rendered inoperable at all times, thus making it impossible for citizens to use them for the core lawful purpose of self-defense, is also unconstitutional. In response to defendant’s contention 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 that the American people, for many reasons, have long considered the handgun to be the quintessential self-defense weapon: A handgun 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 upper-body 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. (128 S.Ct. 2818, 171 L.Ed.2d 680.)

(2) The second dissent argues that, even assuming that the Second Amendment is a personal guarantee of the right to bear arms, defendant’s law is valid, because it imposes a burden upon gun owners that is proportionately no greater than restrictions in existence at the time the Second Amendment was adopted. However, the founding-era statutes cited to support this claim were fire and safety regulations not nearly as burdensome as one preventing citizens from using handguns in self-defense. (128 S.Ct. 2819, 171 L.Ed.2d 681.) Moreover, all of the earlier laws punished the violation with a small fine and forfeiture of the weapon, while defendant’s law, by contrast, threatens citizens with a year in prison for a first offense. (128 S.Ct. 2821, 171 L.Ed.2d 682.)

(3) The second dissent proposes a judge-empowering interest-balancing inquiry that asks whether defendant’s statute burdens a protected interest to an extent that is out of proportion to the statute's salutary effects. This is an improper approach. There is no other enumerated constitutional right whose core protection has been subjected to a freestanding interest-balancing approach. The very enumeration of a right takes out of the hands 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.” (128 S.Ct. 2821, 171 L.Ed.2d 683.) Assuming that plaintiff is not disqualified from the exercise of Second Amendment rights, defendant must permit him to register his handgun and must issue him a license to carry it in the home. (128 S.Ct. 2822, 171 L.Ed.2d 684.)

(d) Limitations. “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing 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.” (128 S.Ct. 2816, 171 L.Ed.2d 678.) The weapons protected by the Second Amendment are those in common use at the time of its passage. It may be objected that if weapons that are most useful in military service, i.e., M-16 rifles and the like, may be banned, then the Second Amendment right is completely detached from the prefatory clause. “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.” (128 S.Ct. 2817, 171 L.Ed.2d 679.)

(e) Conclusion. "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. . . . 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.” (128 S.Ct. 2822, 171 L.Ed.2d 684.)

A dissenting justice, joined by three other justices, concludes that the Second Amendment was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia, and that there is no indication that the framers intended to enshrine the common law right of self-defense in the Constitution. (128 S.Ct. 2822, 171 L.Ed.2d 654.) A second dissenting justice, also joined by three justices, argues that, because the Second Amendment permits government to regulate the interests that it serves, the majority's view could not be correct unless it could show that defendant’s regulation was unreasonable or inappropriate in Second Amendment terms, a showing that the majority allegedly fails to make. (128 S.Ct. 2847, 171 L.Ed.2d 710, 711.)

Witkin References

On fundamental rights generally, see 7 Summary (10th), Constitutional Law, §177 et seq.

On Second Amendment, see 7 Summary (10th), Constitutional Law, §181

On crimes involving deadly weapons, see 2 Cal. Crim. Law (3d), Crimes Against Public Peace and Welfare, §140 et seq.

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Tuesday, June 30, 2009