A Battlefield Victory
September 23, 2010
Here's what the landmark Heller Decision means for gun owners.
In November 1942, following the British victory over German forces at El Alamein in North Africa, Winston Churchill famously remarked, "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."
Firearms owners should say the same following the June 26th majority decision of the U.S. Supreme Court in District of Columbia vs. Heller. The Court stated that the Second Amendment to the Constitution of the United States "protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."
We should indeed celebrate an important victory, but the Court's decision is limited, and we now face additional legal battles to determine its boundaries. As former NRA president Sandra Froman has written: "Heller is just the beginning. Thirty years of major cases will follow, fleshing out the contours." As we embark on these battles, already begun in courts across the land, it is critical for all Second Amendment supporters to clearly understand that what the Supreme Court did not say in its decision ultimately may be more important than what it did say.
The Court's decision was 5-4. In his dissent, Justice Stephen Breyer stated, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house." If only one additional Justice had agreed, the Heller Decision would have been the opposite, and the next Supreme Court decision involving the Second Amendment will likely include new Justices appointed by the next President.
Most importantly, the Heller Decision did not strike down gun-control laws in general. The Court did not invalidate any other federal, state, or local firearms law or ordinance except for the specific Washington, D.C. law considered in the case. Moreover, because the Second Amendment has never been specifically "incorporated" by law into 14th Amendment protections of the rights of citizenship from state or local prohibitions, the Heller Decision does not automatically extend to existing (or future) state and local laws. That will require an entirely separate and additional set of legal battles.
Also, the Supreme Court specifically stated that "the right secured by the Second Amendment is not unlimited," that "it is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," that courts have long held "prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues," and that "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."
In terms of the question of whether some types of firearms might be banned so long as all firearms are not banned, the Court did state: "It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed... . Handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid." However, the Court also specifically affirmed its long-controversial 1939 decision in United States vs. Miller, saying, "Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons," and that "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."
By tying its decision to a standard of "typically possessed popularity" for guns protected by the Second Amendment, while not addressing the District of Columbia's separate ordinance banning possession of semiauto firearms in general, the Court opened the floodgates for future antifirearms legislation and court battles. Proponents of firearms rights can argue that semiauto pistols are without question overwhelmingly popular choices for home defense, and the similar overwhelming and growing popularity of AR-platform rifles may equally provide a defense against future "assault weapon" legislation, but these are battles that now remain to be fought.
As for the high rate of violence among the residents of the District, the Court also stated, "The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns." It implicitly recognized firearms licensing and registration as acceptable, pointing out that because Heller's attorney "conceded at oral argument that he does not 'have a problem with... licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner,' we therefore assume that petitioners' issuance of a license will satisfy respondent's prayer for relief and do not address the licensing requirement."
That's certainly not an assumption that all firearm owners share.
The Constitution of the United States was ratified in 1791. Now, 217 years later, a majority of the Supreme Court has stated for the first time--at least partially--that it means what we think it means. That's a start.
Technical Editor Dick Metcalf wrote the "Firearms Law" column in Shooting Times from 1977 to 1990.