On June 26, 2008, the United States Supreme Court issued its opinion in the case of District of Columbia v. Heller (2008) 128 S. Ct. 645. The issue in the case was whether Washington, D.C.’s gun law ran afoul of the Second Amendment to the United States Constitution. That Amendment provides, in its entirety, “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.”
The D.C. law in issue here provided that with extremely limited exceptions, it was illegal to possess handguns in the District, and that any concealed weapons or possessed firearms, including shotguns and rifles, had to be kept unloaded and disassembled and/or bound by a trigger lock – even when the gun was possessed strictly in a person’s home. Certain residents of the District brought suit against the District, challenging the law on Second Amendment grounds, and, eventually, the case made its way to the U.S. Supreme Court.
Prior to its ruling in Heller, the Court had never addressed squarely whether the Second Amendment protects an individual’s right to “keep and bear arms,” or whether, instead, it protected a “collective” right, i.e., the collective right of the states, to “keep and bear arms.” After reviewing the text of the Amendment, as well as relevant history, the majority opinion, authored by Justice Scalia, found that: “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not…. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”
The Court found that an individual’s Second Amendment right, like other Constitutional rights, is not totally beyond the scope of government regulation. This point was clearly made by Justice Oliver Wendell Holmes Jr.’s famous observation that, “[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” Thus, while each person has the right to freedom of speech, the government can properly punish the exercise of that right in certain circumstances where the value of the speech to a free society is minimal but the harm caused is great.
In terms of what specific legal test should be used to decide whether a specific government regulation that impinges on a Second Amendment right is sufficiently justified, the Court sidestepped that question. The Court noted that, “the inherent right of self-defense has been central to the Second Amendment right. The [D.C.] 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,’ … would fail constitutional muster.” The Court did allude to the fact that the government would have to show more than a law was “rationally related to a legitimate government interest,” a standard referred to as “rational basis” review. In this vein, the Court noted that: “this law, like almost all laws, would pass rational-basis scrutiny…. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws…. In those cases, ‘rational basis’ is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same 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. See United States v. Carolene Products Co., 304 U.S. 144, 152, n.4 (1938)(“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments …”). 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.”
Thus, summing up the majority opinion in Heller, we know that the right to “keep and bear arms” is a constitutional right guaranteed to each American by the Second Amendment, and we also know that, like other constitutional rights (like the right to freedom of speech) the right is not unlimited (i.e., the government can put restirctions on the right of people to “keep and bear arms”). What is not certain is, if a case is presented to a court today challenging a gun law, what legal test should the court use to determine if the law is constitutional? While we know that the Court will use a standard that is higher than “rational basis” review, how much higher than that will the bar be set, and what about laws that restrict the ability of people convicted of certain violent crimes or non-violent crimes to obtain guns?
As to this question, Heller Court went on to state, in dicta (i.e., making a legal observation the Court was not required to make in order to resolve the issue presented in the case before it), that “[a]though 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.” The Court noted, in a footnote, that “[w]e identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”
While the Court noted that its opinion in Heller should not “cast doubt” on laws preventing firearms possession by convicted felons for instance, the Court did qualify the conclusion to some extent by referring to such regulations as “presumptively lawful” regulations. Does this mean that laws preventing felons from possessing firearms, while “presumptively lawful” may be overturned in some cases as too heavy a restriction on an important constitutional right?
The Court did conclude in responding that the dissenting opinion of Justice Breyer, “chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible…. 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.”
In the end, while the Court did answer an important question, i.e., whether the Second Amendment protects the rights of each individual American, or the “collective” right of states to have militias, the Court, in its opinion, left unanswered many important questions, such as: if the right to possess a firearm is a right of constitutional import, what standard will apply to government attempts to limit the right; and, if the right to possess a firearm is a constitutional right, why are laws restricting “possession of firearms by felons and the mentally ill, … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, [and] laws imposing conditions and qualifications on the commercial sale of arms [deemed] presumptively valid” when in fact they restrict an important constitutional right, and, if such laws are “presumptively valid” under the Second Amendment, what might be needed to rebut that presumption. One has to think that, as the Court observed, “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.”
If you or someone you know has been effected by this ruling or charged with a crime in California, call the California criminal defense attorneys at Wallin & Klarich. We can be reached, toll free, at 888.280.6839. We will be there when you call.