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

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In District of Columbia v. Heller, No. 07-290 (June 26, 2008), the United States Supreme Court considered the meaning and scope of the Second Amendment for the first time since 1939.  In a 5-4 decision authored by Justice Scalia (and joined by Chief Justice Roberts and Justices Alito, Kennedy and Thomas) the Court held that the District of Columbia’s ban on handgun possession, as well as the District’s requirement that firearms in the home be stored “unloaded and disassembled or bound by a trigger lock or similar device,” violate the Second Amendment.  The Court interpreted the Second Amendment to confer an individual right to possess firearms unrelated to service in a well-regulated state militia.  The Court made clear that this right has limits, but, as explained below, the contours of those limits remain unclear. 

The majority opinion dismissed the Court’s principal precedent concerning the interpretation of the Second Amendment, United States v. Miller, 307 U.S. 174 (1939), as not “a thorough examination” of the Amendment.  Heller, slip op. at 50. The Court limited Miller to the proposition that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”  Id. at 53.  

In United States v. Miller, the Court, in a unanimous decision, rejected a Second Amendment challenge to a federal law prohibiting the interstate transportation of sawed-off shotguns. The Court held that the “obvious purpose” of the Second Amendment is to “assure the continuation and render possible the effectiveness” of the state militia, and the amendment “must be interpreted and applied with that end in view.”

Following Miller, over 200 federal and state appellate courts rejected Second Amendment challenges to a variety of gun laws, such as those banning certain classes of firearms (including handguns), requiring the registration of guns and licensing of gun owners, and prohibiting firearm possession by convicted felons. The Supreme Court had repeated opportunities to review these decisions prior to D.C. v. Heller and consistently declined to do so.

Our federal, state and local governments have relied on this well-established precedent in passing hundreds of gun regulations over the years.  These regulations are, in turn, relied on by law enforcement agencies across the country in their efforts to protect public safety.  The Supreme Court’s ruling that the Second Amendment enshrines a private “right to bear arms” unrelated to militia service, calls into question this well-settled body of statutory, regulatory and case law.  As Justice Stevens pointed out in his dissenting opinion, “even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of …[past Courts], and for the rule of law itself…would prevent most jurists from endorsing such a dramatic upheaval in the law.”  Heller, slip op. at 4 (Stevens, J., dissenting).      

This upheaval is made worse by the fact that the Court failed to establish a standard of review for evaluating firearms laws. The majority opinion stated that the handgun ban would fail any standard of scrutiny that the Court has previously applied in evaluating the constitutionality of legislation, but did not articulate a standard that should be applied in evaluating other laws under the Second Amendment.  Id. at 56-57.  In a footnote, however, the opinion strongly suggested that application of the rational basis test would be nonsensical.  Id. at 56 n.27.  The majority also rejected an “interest-balancing” analysis suggested in Justice Breyer’s dissent – stating that, whatever the Second Amendment leaves for future evaluation, “it surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.”  Id. at 63.

The many questions left unanswered by the Court prompted Justice Breyer to conclude, in his dissent, that “[t]he decision will encourage legal challenges to gun regulation throughout the Nation.  Because it says little about the standards used to evaluate regulatory decisions, it will leave the Nation without clear standards for resolving those challenges. . . And litigation over the course of many years, or the mere specter of such litigation, threatens to leave cities without effective protection against gun violence and accidents during that time.”  Heller, slip op. at 40 (Breyer, J., dissenting).