Justice Antonin Scalia wrote the opinion of the Court. In his opening statement, he identified the specifics of the case before the court.
We consider whether a District of Columbia prohibition
on the possession of usable handguns in the home violates
the Second Amendment to the Constitution.
This context must be kept in mind when considering the text of the findings. The repeated references to "in the home" are not meant to be misconstrued to mean that gun rights only exist in the home, merely that the facts in this case pertain specifically to the DC gun ban of guns in the home.
Any attempts by the anti gun community to enact an overly oppressive ban on firearms outside the home would likely lead to subsequent rulings that they are not permitted, suing this case as precedent and the fact that SCOTUS ruled unequivocally that the Right to Keep and Bear
arms is an individual right. Unfortunately, they forgot the whole "shall not be infringed part," but that was expected.
After explaining the specifics of the DC gun ban and the facts of the case, Justice Scalia went into interpretation of the Second Amendment. He agreed with numerous constitutional scholars and linguistics experts in their interpretation and wrote...
The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
"Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed."
It is important to note that it only announces "a" purpose, not "the only" purpose. The Founders could have singled out any other purpose and it would still not be restrictive on only the one denoted.
In continuing the interpretation, Scalia explained that the phrase "right of the people" was used elsewhere in the Constitution, and each time referred to individual rights of the citizens. Nowhere does "right of the people" constitute a collective right of the States or an organized body. In fact, the tenth amendment clearly notes a distinction between "the States" and "the people". Scalia concludes that "right of the people" leads the court to "start...with a strong presumption that the
Second Amendment right is exercised individually and belongs to all Americans."
When looking at the historical context of the term "arms", Scalia quotes a 1773 dictionary ("weapons of offence, or armour of defence") and a 1771 legal dictionary ("any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another"). Although this lead to his curious explanation that "the term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity", he later noted "although one founding-era thesaurus limited 'arms' (as opposed to 'weapons') to 'instruments of offence generally
made use of in war,' even that source
stated that all firearms constituted 'arms.'"
My interpretation is that he was excluding weapons specific to military use, grenades, rocket launchers, etc., from the definition of "arms".
Scalia concluded his discussion on "arms" by destroying the argument that the Second Amendment only applies to arms available in the colonial era.
He then turned his attention to the phrase "keep and bear arms", finding that it meant "to retain", "[not] to lose", "to have in custody" "to hold" and "to retain in one's power or possession". Therefore, "the most natural reading
of 'keep Arms' in the Second Amendment is to 'have weapons.'" and "at the time of the founding, as now, to 'bear' meant to 'carry'" and that this has no connection to military (militia) service. "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in
case of confrontation."
Scalia then goes on to affirm that the Second Amendment "codified a pre-existing right
." Like the rest of the Bill of Rights, these rights are not granted by the Constitution, merely recognized and codified that they do already exist. This is presented against a backdrop of the political climate that lead up to the drafting of the Constitution and an explanation of why the right of every man to keep and bear arms was in common acceptance at the time.
After all the explanations covering the operative clause of the Second Amendment, Justice Scalia turned his attention to the prefatory clause in detail.
While following the Court's earlier finding that the prefatory clause was not restrictive on the operative clause, he did look at the common definition of the militia at the time, which was that "the militia as all able-bodied men" as well as that "'well-regulated' implies nothing more than the imposition of proper discipline and training." This is not meant to restrict that the Right to Keep and Bear Arms is only restricted to "able-bodied men", but merely a continued look at the definition of the terminology of the amendment at the time. Again, the Court found that the prefatory clause referring to ONE reason of the Second Amendment does not preclude their being other reasons, one of which the Court found to be "the natural right of resistance and self preservation".
The next phrase to be defined was "Security of a Free State," which the Court found to be "security of a free polity".
This all lead to the topic of the relationship between the prefatory and operative clauses. Recent history had pointed out to the Founders the importance of a militia because "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 peoples arms, enabling a select militia or standing army to suppress political opponents." Therefore, as the militia is necessary for the security of the polity that was the new government, the individual right to Keep and Bear arms was a necessary requirement for having a militia. A militia cannot exist without a well armed populous.
This was rooted in the fear at the time that a standing army would be used to oppress the individual states and take away their freedoms. As a show that this was not the intent, "Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people."
Further discussion highlights the fact that the prefatory clause was highlighted for this purpose... to codify a pre-existing
right to reassure the People that the new government was not going to become a Monarchy, a prevalent fear at the time.
It is therefore entirely sensible that the Second Amendments prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens militia by taking away their arms was the reason that rightunlike some other English rightswas codified in a written Constitution.
The fact that this was, indeed an individual right is supported by the fact that numerous other states, including Ohio, have references to it in State constitutions as well. Several of these were cited during an extensive discussion on political interpretations at the time, including an analysis of many Founders, scholars, writes, and politicians of the time who nearly unanimously commented in post ratification writings about the fact that it was an individual Right to Keep and Bear Arms that the Second Amendment was recognizing. Case law at the time and during later periods also supported this assertion.
In covering the historic case law, Scalia discussed United States v. Miller
, a SCOTUS case long held by anti gun forces to have ruled the Second Amendment is not an individual right. Justice Stevens, according to Scalia, believes this to be true, that "the Second Amendment 'protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislatures power to
regulate the nonmilitary use and ownership of weapons.'" Justice Scalia vehemently disagrees.
Miller did not hold that and
cannot possibly be read to have held that. The judgment
in the case upheld against a Second Amendment challenge
two mens federal convictions for transporting an unregistered
short-barreled shotgun in interstate commerce, in
violation of the National Firearms Act, 48 Stat. 1236. It is
entirely clear that the Courts basis for saying that the
Second Amendment did not apply was not that the defendants
were bear[ing] arms not for . . . military purposes
but for nonmilitary use, post, at 2. Rather, it was that
the type of weapon at issue was not eligible for Second
The ruling in the case was that the restriction on the short-barreled shotgun in particular was Constitutional. Finding no evidence to support the claim that it ruled the Second Amendment was not an individual right, Scalia notes "Miller
stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons." Scalia found no evidence an at length discussion of the Second Amendment even took place in the case. In regards to the incorrect interpretation of the case, Scalia noted that an "erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the
reliance of millions of Americans (as our historical analysis has shown)
upon the true meaning of the right to keep and bear arms."
DID address, however, was what arms could be constitutionally restricted. "The traditional militia was formed from a pool of men bringing arms 'in common use at the time' for lawful purposes like self-defense."
Justice Scalia wrote, "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." This will bring up an interesting debate in the years to follow. While weapons not typically possessed by law-abiding citizens for a lawful purpose can be restricted, how can new weapons be typically possessed if they are already restricted? However, this does specifically apply to comments made by DC Mayor Adrian Fenty that semi-automatic pistols would continue to be banned in DC. Semi-automatic pistols are very commonly possessed in the United States, which would seem to nullify his claim.
An interesting side discussion was made by Justice Scalia after discussing Miller
It should be unsurprising that such a significant
matter has been for so long judicially unresolved.
For most of our history, the Bill of Rights was not thought
applicable to the States, and the Federal Government did
not significantly regulate the possession of firearms by
law-abiding citizens. Other provisions of the Bill of Rights
have similarly remained unilluminated for lengthy periods.
This Court first held a law to violate the First
Amendments guarantee of freedom of speech in 1931,
almost 150 years after the Amendment was ratified... and
it was not until after World War II that we held a law invalid under the Establishment Clause.
This paragraph would seem to nullify another common anti-gun argument, that the Second Amendment applies only to the Federal Government. SCOTUS has ruled in the past that other rights (free speech, freedom of assembly) cannot be prohibited by the states. Nor can the Second Amendment.
After this discussion was a paragraph already being seized by the anti-gun movement to further their attempts at restricting your rights.
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose.
Justice Scalia already explained an example of how the Court finds this to be true in regards to short-barreled shotguns. He continues..
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
We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
"in common use at the time."... We think
that limitation is fairly supported by the historical tradition
of prohibiting the carrying of "dangerous and unusual
It will likely be the definitions of "in common use" and "dangerous and unusual weapons" that will be at the heart of many anti vs. pro gun legal and legislative arguments in the future.
After all of this discussion, Justice Scalia finally turned his full attention to the matter of law, the DC gun ban.
As the quotations earlier in this opinion demonstrate,
the inherent right of self-defense has been central to the
Second Amendment right. The handgun ban amounts to a
prohibition of an entire class of "arms" that is overwhelmingly
chosen by American society for that lawful purpose.
The prohibition extends, moreover, to the home, where the
need for defense of self, family, and property is most acute.
Under any of the 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," [the DC ban], would fail constitutional muster.
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. It
is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential
With those words, the DC gun ban, and any other or future ban that would prohibit entire classes of firearms such as handguns, were deemed unconstitutional infringements upon the rights of the citizens. Another aspect of the DC laws was addressed.
We must also address the District's requirement (as
applied to respondent's handgun) that firearms in the
home be rendered and kept inoperable at all times. This
makes it impossible for citizens to use them for the core
lawful purpose of self-defense and is hence unconstitutional.
Requiring firearms to be disassembled or with trigger locks prohibiting immediate use for self-defense is also unconstitutional.
It is important to note that because Dick Heller was not challenging a firearms licensing program, "we therefore assume that petitioners' issuance of a license
will satisfy respondent's prayer for relief and do not address the licensing requirement."
This does NOT mean, as some gun grabbers have posited, that the Court ruled any particular form of licensing is constitutional. Scalia specifically said they're not addressing the licensing issue at all. If an overly oppressive licensing scheme did crop up in the future, perhaps having discretionary requirements or fees few could meet, this issue could indeed be addressed by a future Court.
Justice Scalia concluded the Court's opinion and ruling with...
In sum, 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. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.
* * *
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,
see supra, at 5455, and n. 26. 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.
We affirm the judgment of the Court of Appeals.
It is so ordered.
That the District "must" allow him to register his handgun and "must" issue him a license to carry it in the home speaks to both the fact that the registration and licensing must be reasonable and reaffirms the spread of "shall issue" ccw licensing currently sweeping the nation. Gun rights cannot be denied on a whim, and the Supreme Court has now upheld that belief. And before the gun grabbers get too excited about the "in the home" statement, I remind them that SCOTUS addressed only the specifics of this case, which was about Heller's ability to have a working firearm in his home for his defense. They did not decide the issue of licensing (other than to say it cannot be arbitrarily denied) and they did not address the issue of carry outside the home to Heller specifically. They did, however, address that the Second Amendment protects the preexisting right to Keep and Bear
Arms. I urge any future anti-gun politician or judge to remember that statement.
This has been Part II of a three part series examining the SCOTUS ruling. Part I covered the Syllabus introduction and findings. Part II covered the majority opinion, and Part III will cover the dissenting opinions.