Should the D.C. Handgun Ban Have Been Overturned?

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Although the Heller decision establishes a new individual right to “keep and bear arms,” the opinion makes clear that the right is not unlimited, and should not be understood as “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”  Heller, slip op. at 54.  The Court provides examples of gun laws that it deems “presumptively lawful” under the Second Amendment, including those which:

*    Prohibit the possession of firearms by felons and the mentally ill.

*    Forbid firearm possession in sensitive places such as schools and government buildings.

*    Impose conditions on the commercial sale of firearms.

The Court makes clear that this list is not exhaustive. Id. at 55.  The Court also concludes that the Second Amendment is consistent with laws banning “dangerous and unusual weapons” not “in common use at the time,” such as M-16 rifles and other firearms that are most useful in military service.  Id.   Finally, the Court declares that its analysis should not be read to suggest “the invalidity of laws regulating the storage of firearms to prevent accidents.”  Id. at 60. 

In addition, the Court left open the question of whether the Second Amendment applies to state and local governments other than the District of Columbia, through the legal doctrine of incorporation. Because the District is a federal enclave, the Court had no occasion to decide the issue in this case. The Court noted that its pre-Miller precedents found that the Second Amendment does not apply against the states, but raised a question concerning the continued vitality of those holdings.  Heller, slip op. at 48 n.23.

Post-D.C. v. Heller challenges to state and local firearms laws will necessarily address this issue.  Therefore, it is important to note that state and local laws are not subject to challenge under the Second Amendment. In general, the first ten amendments, or the Bill of Rights, only constrain acts of Congress, not state or local governments. However, under the doctrine of "incorporation," the Supreme Court has held that certain amendments contained in the Bill of Rights are "incorporated" by the Fourteenth Amendment as a constraint on state and local action. The Supreme Court has held that the Second Amendment is not incorporated, and therefore is not a constraint on state or local regulation.  See Miller v. Texas, 153 U.S. 535 (1894); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542, 553 (1876). Numerous lower courts have reached the same conclusion.  See, e.g., Quilici v. Village of Morton Grove, 695 F.2d 261, 269-71 (7th Cir. 1982); Love v. Pepersack, 47 F.3d 120, 123 (4th Cir. 1995) (“The Second Amendment does not apply to the states.”); Bach v. Pataki, 408 F.3d 75, 84 (2d Cir. 2005) (“join[ing] five of our sister circuits” in holding that “the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts”).