District of Columbia v. Heller

10 Key excerpts on "District of Columbia v. Heller"

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  On Interpretive Conflict

  • John Frow(Author)
  • 2019(Publication Date)
  • University of Chicago Press

    (Publisher)

  1 Reading with Guns: District of Columbia v. Heller All new laws . .. are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. «JAMES MADISON 1 » I am not so naïve (nor do I think our forebears were) as to be unaware that judges in a real sense “make” law. But they make it as judges make it, which is to say as though they were “finding” it. «ANTONIN SCALIA 2 » If Kafka writes so intensively about the Law it is because the law, bureaucracy, and theology are the intertwined figures of a hierarchical social order built on the necessity and the impossibility of interpretation. My first case study is of an American judgment that sets in play an interpretive conflict that is resolved with the performative construction of a right and the reality it brings into being. 3 The case of District of Columbia v. Heller, 4 decided by a 5–4 split in June 2008, is remarkable for two reasons: It was the first time that the United States Supreme Court had engaged with the full implications of the Second Amendment to the US Constitution, holding that the amendment articulated the right of private citizens to possess firearms for such purposes as self-defense; and the decision, written by the late Justice Antonin Scalia, was self-consciously and explicitly “originalist,” 5 seeking to determine the “original public meaning” of the text of the amendment without regard to the intentions of those who framed and ratified it, using the text itself as the primary evidence for its meaning at the moment of its enunciation, and confining its legal force to that historically delimited meaning

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  Culture Wars in America

  A Documentary and Reference Guide

  • Glenn H. Utter(Author)
  • 2009(Publication Date)
  • Greenwood

    (Publisher)

  Heller declared a private right to arms, dramatically changing the long-settled meaning of the Second Amendment, struck down the District of Columbia’s ban on handguns as unlawful, and inspired lawsuits against similar bans in other cities. The Heller decision, and its questionable reasoning, creates risks to gun laws that criminal defendants and the gun lobby will likely attempt to exploit. Nonetheless, the long-term effects of the decision are at odds with the day-after headlines proclaiming a seminal victory for ‘‘gun rights.’’ The Court went out of its way to make clear that most gun laws are ‘‘presumptively’’ constitutional while also putting to rest gun owners’ fears of a total ban or ultimate con- fiscation of all firearms. By taking the extremes of the gun policy debate off the table, 154 Heller has the potential to allow genuine progress in implementing reasonable gun restrictions, while protecting basic rights to possess firearms. The unintended conse- quence of Heller is that it may end up ‘‘de-wedgeifying’’ one of the more divisive ‘‘wedge’’ issues on the political landscape: guns. The net result of Heller would then be positive by leading to the enactment of the strong gun laws that we need—and the vast majority of Americans want—to protect our communities from gun violence. The Limited Direct Effect of the Heller Decision A narrow 5–4 majority of the Supreme Court in Heller held that the Constitution provides private citizens with a right to arms, rejecting the view—held by virtually every previous court in our nation’s history—that the Second Amendment’s militia clause and history limit the right of arms to service in a ‘‘well-regulated militia.’’ But the practical effect of the decision is likely to help, not hurt, the cause of preventing gun violence in America. The direct effect of Heller is that the District of Columbia’s ban on handguns was invalidated.

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  The Second Amendment on Trial

  Critical Essays on District of Columbia v. Heller

  • Saul A. Cornell, Nathan Kozuskanich, Saul A. Cornell, Nathan Kozuskanich(Authors)
  • 2013(Publication Date)
  • University of Massachusetts Press

    (Publisher)

  At least for the short term, no law capable of passing the political gauntlet is likely to run afoul of Heller ’s guidelines. Despite an avalanche of lawsuits, there are no signs that any court is likely to read Heller more expansively in the near future. Most courts have accepted that the core of the right protected by Heller extends only to the ownership and use of firearms in the home. 81 Similarly, the Heller Court’s list of reasonable regulations that are presumptively legal, a list that the Court noted was not exhaustive, has covered virtually every existing gun law on the books. It is no less true that the decision is just as likely to remain controversial among scholars for some time to come. As the essays in this volume make clear, the Heller decision is rich in delicious irony: liberals embracing originalism while conservatives thumb their noses at precedent, to name two among many. Although it is too soon to predict how history will judge Heller, it does seem likely that future scholars will uncover additional ironies as they probe the decision further. NOTES 1. District of Columbia v. Heller, 554 U.S. 570 (2008). 2. The Court had last dealt with the Second Amendment in U.S. v. Miller, 307 U.S. 174 (1939), in which it ruled that since shotguns with barrels less than eighteen inches in length had no relation to a well-regulated militia, the Second Amendment did not guarantee a right to keep and bear such firearms. 3. For a brief personal history of the case, see Clark Neily, “District of Columbia v. Heller: The Second Amendment Is Back, Baby,” Cato Supreme Court Review (2007–8): 127–59. The Gura & Possessky, P.L.L.C., website also gives a brief history of the Parker case; see www.gurapossessky.com/news/parker/overview.html. 4. Seegars v. Ashcroft, 297 F. Supp. 2d 201 (D.D.C. 2004). 5

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  The Second Amendment and Gun Control

  Freedom, Fear, and the American Constitution

  • Kevin Yuill, Joe Street, Kevin Yuill, Joe Street(Authors)
  • 2017(Publication Date)
  • Taylor & Francis

    (Publisher)

  To endure for all time or to change with the times? The Supreme Court and the Second Amendment

  Emma Long

  Introduction

  In June 2008, the US Supreme Court handed down its decision in District of Columbia v. Heller , ruling for the first time that the Second Amendment to the US Constitution guaranteed an individual right to bear arms for the purposes of self-defence. Gun rights activists responded with joy that a majority of the Justices had endorsed a reading of the Amendment that they had advocated for nearly three decades. Gun control supporters expressed disappointment at the Court’s ruling, which struck down what were the strictest gun laws in the nation, but also argued that Heller offered support for their position too. In fact, both leading presidential candidates, John McCain and Barack Obama, publicly offered their support for Heller. 1 How could both sides in the seemingly Manichaean debate between greater gun rights and greater gun control claim support from the same ruling? Because, in reality, Heller offered something to both sides. While finding the Amendment protected an individual right to own firearms separate from militia participation, the Court also clearly stated that right was not unlimited, and it offered what one commentator called a “laundry list” of regulations on gun ownership and use that remained acceptable under the Second Amendment.2 Thus in answering one question (the scope of the right protected by the Amendment), the Court’s ruling in Heller offered up an array of others (exactly what regulations were permitted), guaranteeing continued debate about guns in American society that ensured the Second Amendment would remain relevant well into the twenty-first century.

  Heller also presented, in stark terms, a clash between two competing theories of constitutional interpretation: originalism versus living constitutionalism. Justice Antonin Scalia, who wrote for the five-Justice majority in Heller , described the ruling as the greatest “vindication of originalism.”3 Emerging initially as a means by which conservatives could criticise the liberal, individual rights rulings of the Warren Court, originalists argued that the meaning of the Constitution should be found by seeking the “intent” of those who created it. Objecting to what they saw as activist judges ignoring the words and meaning of the Constitution in favour of writing their own personal policy preferences into law, advocates offered originalism as a method of restraining the judiciary and “returning” the Constitution to the meaning intended by the Founding Fathers. Scholarly criticism of the methods of original intent led to the development of what has come to be known as “original public meaning, ” the version of originalism found in Heller

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  One Vote Away

  How a Single Supreme Court Seat Can Change History

  • Ted Cruz(Author)
  • 2020(Publication Date)
  • Regnery

    (Publisher)

  Heller powerfully illustrated the breadth and audacity of the modern Democratic position.

  Dick Anthony Heller was a federal police officer who lived in Washington, D.C. He carried a firearm at work, but D.C. laws, among the most draconian in the country, made it functionally illegal for him to carry a gun at his home. The D.C. laws prohibited the private possession of any and all handguns, and they required that all long guns (shotguns and rifles) be kept “unloaded and disassembled or bound by a trigger lock or similar device” at all times, with no exceptions (even to defend against imminent threat of violence). In practice, this meant that neither handguns nor long guns could ever be used for home protection or self-defense in the nation’s capital.

  Dick Heller brought a challenge against those laws in the federal district court in the District of Columbia. He argued that a total prohibition on possessing operative firearms was inconsistent with the core protection of the Second Amendment.

  The district court rejected Heller’s claim. The argument of the District of Columbia, which the court accepted, was that the Second Amendment does not protect any individual right whatsoever. Instead, D.C. argued, it protects only a “collective right of the militia,” a fancy legal construct that means no person can ever claim that right or have it protected in court. As a practical matter, that interpretation would read the Second Amendment out of the Bill of Rights.

  When the case went to the court of appeals, I became involved. As the Texas solicitor general, I drafted an amicus brief on behalf of thirteen states that defended an individual

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  Constitutional Originalism

  A Debate

  • Robert W. Bennett, Lawrence B. Solum(Authors)
  • 2011(Publication Date)
  • Cornell University Press

    (Publisher)

  The actual words of his opinion come very close to our reconstruction: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.” 33 In other words, the District of Columbia ordinance was a core case of infringement of the individual right to keep and carry weapons. But many other cases will be outside the core. The puzzling dicta in Heller can be read as simply making the point that the holding in Heller does not reach these questions of constitutional construction—because issues of construction simply did not arise on the facts of Heller. The Supreme Court’s decision in Heller provides a marvelous example of the general structure of originalist thought. Justice Scalia’s opinion illustrates the methodology of original-public-meaning originalism; Justice Stevens adopts an original-intentions approach. Whatever you think of the merits of the particular arguments made by the justices, their opinions provide us with a model of the general methods by which originalist jurisprudence can proceed in practice. One final word about Heller: all three of the opinions are controversial. Thoughtful critics of Justice Scalia’s opinion believe that the Second Amendment was intended to apply only to weapons used in connection with service in a state militia. Thoughtful critics of Justice Stevens’s opinion believe that he failed to offer a plausible theory of the linguistic meaning of the Second Amendment. The way to resolve the debates over the merits of the Heller opinions is through a close and careful examination of the evidence: appeals to the authority of eminent lawyers and historians will not do the trick. And when we examine the merits, we must be very careful about the theoretical assumptions that are frequently implicit rather than explicit in the arguments advanced by the justices and their critics and supporters

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  Cato Supreme Court Review, 2007-2008

  • Ilya Shapiro(Author)
  • 2008(Publication Date)
  • Cato Institute

    (Publisher)

  It was a clever makeover. Of course, we framed the issue quite differently, asking: ‘‘Whether the Second Amendment guarantees law-abiding adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.’’ And despite having prevailed below, we supported the District’s request for Supreme Court review and devoted our response, as the District had with its petition, to setting the terms of the debate in the event of a cert grant. 43 On November 20, 2007, the Supreme Court announced that it would hear the case. As framed by the Supreme Court, the question presented was whether the challenged provisions of the D.C. Code, including its handgun ban and trigger lock requirements, ‘‘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?’’ 44 Against long odds, we had succeeded in our goal of presenting a carefully crafted, well-framed Second Amendment case to the Supreme Court before a criminal case got there first. Although there is much to tell about the preparation, strategy, and work that went into the presentation of Heller’s case to the Supreme Court, of perhaps greater interest to most readers is the extraordinary outpouring of Second Amendment scholarship that attended this case in the form of amicus briefs filed with the Court. 43 We also filed a Conditional Cross-Petition for a Writ of Certiorari on behalf of the five plaintiffs whom the D.C. Circuit ruled did not have standing to challenge D.C.’s gun ban. The District opposed that cross-petition, and the Supreme Court held it in abeyance until after it announced the Heller decision in June 2008, then dismissed it without explanation. 44 District of Columbia v. Heller, 128 S. Ct. 645 (2007) (grant of certiorari). 142

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  Gun Control on Trial

  Inside the Supreme Court Battle Over the Second Amendment

  • Brian Doherty(Author)
  • 2008(Publication Date)
  • Cato Institute

    (Publisher)

  , that is, all of us as individuals. He decided that ‘‘bear arms’’ had more than just a military meaning in the idiom of the founding era. He noted the ‘‘sophisticated collective rights theory’’ posited by D.C., but blew it away by noting that it was the functional equivalent of the old collective rights theory— that the Second Amendment right applies to states, not individuals— in that it claims that the individual only has a Second Amendment right in connection with his

  membership in a state militia. He also noted that the militia, in the Founding context, consisted of pretty much all able-bodied men, not a select group.

  Silberman stood up for his court’s right and ability to rethink the Second Amendment afresh, saying he felt no square precedent had been set in their circuit, nor by the Supreme Court. His decision interpreted

  Miller,

  the apparent dominant precedent, to say it hinged on the type of weapon the right affected, not the type of person. Silberman did not accept D.C.’s claim that any constitutional infringement was mitigated because the city

  might not punish a long gun owner for loading and using his weapon in self-defense in defiance of the letter of the law—‘‘judicial leniency cannot make up for the unreasonable restriction of a right.’’

  The decision was well-reasoned, but it was only from one three-judge panel of the D.C. Circuit. D.C. officials requested a rehearing by the entire body of judges for the Circuit, known as a rehearing en banc

  . That request was denied in May 2007. The city then requested, and got, a stay on the order to stop enforcing its law while it decided whether it wished to take the case on to the next step: the Supreme Court of the United States.

  The decision in Heller

  was ultimately—and appropriately—based on legal and constitutional principles. But underlying the case— inspiring the plaintiffs to challenge the law and explaining why the decision alternately delighted and horrified many Americans—are powerful ideas and practices that underlie and also go beyond what the Second Amendment does or doesn’t mean. They have to do with self-defense and self-identity, and they aren’t so much about the Constitution or empirical reality as they are about a wider and deeper cultural war.

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  Guns in American Society

  An Encyclopedia of History, Politics, Culture, and the Law [3 volumes]

  • Jaclyn Schildkraut, Gregg Lee Carter, Jaclyn Schildkraut, Gregg Lee Carter(Authors)
  • 2022(Publication Date)
  • ABC-CLIO

    (Publisher)

  A dis- senting opinion by Justice John Paul Stevens examined the same materials and found that they provided equally unequivocal support for the “collective right” view. (Another dis- senting opinion, by Justice Stephen Breyer, departed from originalism and concluded that the city’s regulation was constitution- ally permissible because courts should defer to legislative judgments about what gun- related policies best promoted the overall social good.) The Heller decision dealt with a regula- tion that fell directly under the Second Amendment’s coverage because District of Columbia ordinances are, as a formal legal matter, statutes attributable to the national government. Two years later, the Court extended its ruling by holding that the Four- teenth Amendment “incorporated” the Sec- ond Amendment and thereby made its guarantees applicable against city and state regulations (McDonald v. City of Chicago [2010]). The legal theory supporting incor- poration was complex. Scholars who studied the period when the Fourteenth Amendment was adopted provided substantial evidence 774 | Second Amendment Foundation (SAF) Tushnet, Mark. Out of Range: Why the Con- stitution Can’t End the Battle Over Guns. New York: Oxford University Press, 2007. Volokh, Eugene. “The Commonplace Second Amendment.” New York University Law Review 73 (1998): 793–811. Winkler, Adam. “Scrutinizing the Second Amendment.” Michigan Law Review 105 (2007): 683–733. Second Amendment Foundation (SAF) The Second Amendment Foundation (SAF), founded in 1974 by Alan Merril Gottlieb, is a nonprofit organization that supports gun rights. The SAF produces public education materials, sponsors conferences, and pro- vides media-outreach services. It has increas- ingly taken on a leading role in sponsoring lawsuits, including the high-profile McDon- ald v.

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  Guns in Law

  • Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey, Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey, Martha Umphrey(Authors)
  • 2019(Publication Date)
  • University of Massachusetts Press

    (Publisher)

  10

  The roots of this historical paradox, rewriting history at the same time that it made history foundational to the future of Second Amendment law, can be traced to Justice Scalia’s statement that “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.”11 In another oft-quoted passage from Heller, the majority made another related assertion:

  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.12

  Heller clearly points to history for guidance in evaluating the constitutionality of gun regulation, but it offers little substantive insight or methodological guidance on how to ferret out that information. According to Heller, the legality of a particular gun law would seem to depend on whether it can be shown to be deeply rooted in some American legal or regulatory tradition.13 An understanding of the evolving nature of the right to keep and carry arms is not only essential to correcting the historical record and implementing Heller’s historical framework, but it may also aid in resolving some of the contradictions and jurisprudential problems created by the opinion.14 In his dissent, Justice Breyer suggested a balancing model that Justice Scalia dismissed as incompatible with the original understanding of the right to keep and bear arms. Balancing was central to the way members of the founding generation approached issues related to firearms. In fact, balancing was indispensable to the Anglo-American law of firearms.15 The liberty interest associated with the right to arms was always balanced against the concept of the king’s peace.16 If an individual’s exercise of the right to bear arms threatened the peace and order of the realm, that individual could be disarmed, imprisoned, and forced to provide a surety, a type of peace bond.17 Simply arming oneself was contrary to law and was by its nature a violation of the king’s peace under English law. A complex framework had developed under English common law that determined if subjects could lawfully arm themselves in public. The American Revolution republicanized the concept of the king’s peace by transmuting it into the people’s peace, but this did not repudiate the centrality of the balancing process used to determine if armed travel violated the peace.18 The Revolution did lead to an expansion in the number of circumstances in which traveling armed might be lawful, but it did not create a broad freestanding right to travel armed in public.19

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