Friday, June 27, 2008

Right to Keep and Bear Arms: Part I

On June 26, 2008, the U.S. Supreme Court ruled 5-4 in District of Columbia v. Heller (PDF, 172 pages) upon the meaning of the Second Amendment to the U.S. Constitution regarding "the right of the people to keep and bear Arms."

The Supreme Court upheld the District Court's ruling that the Second Amendment protects an individual’s right to possess firearms, and that the city’s total ban on handguns -- as well as its requirement that
firearms in the home be kept nonfunctional even when necessary for self-defense -- violated that right. This landmark ruling is that Court's first comprehensive consideration of the Second Amendment since its enactment in 1791.

The ruling was covered extensively by the media. See, for example, the Associated Press article entitled "High court affirms gun rights in historic decision" (06/26/08) posted by Comcast. See also: "Supreme Court Rules 5-4 that Second Amendment Protects Right to Own Guns" (06/26/08), & "Most Gun Laws Legal Under High Court Ruling, But Chicago’s Is an Issue" (06/27/08), both by Debra Cassens Weiss, posted by the ABA Journal Blog; and "Not So Fast! Sizing up the Heller Ruling’s Immediate Effect on D.C." (06/26/08), by Ashby Jones, posted on The Wall Street Journal Law Blog (source of graphic).

Postings on this Blog will consider the ruling in three parts.

Part I is written by law student Joshua G. Prince, who has written three prior articles posted on this Blog about firearms in the context of estates or trusts. See:

Part II will be written by me, to be posted on Monday, June 30th, about the relevance of this ruling to senior citizens.

Part III will be written by both me & Josh as to potential effects of the ruling upon residents of long-term care facilities.

Josh was present in the U.S. Supreme Court building yesterday morning when Justice Scalia read the majority opinion of the Court. He considers aspects perhaps overlooked in initial media reports. I thank Josh for his continuing contributions to this field of law.
District of Columbia v. Heller:
The Rebirth of the 2nd Amendment

Copyright © by Joshua G. Prince

June 26, 2008 marks a day in history when a Constitutional Right, which to some was ambiguous was reborn. Reborn not in the sense of something new and different from that of before, but in the sense of something that was forgotten and left to wither until new life was breathed into it.

In District of Columbia v. Heller, Dick Heller, a D.C. resident and special police officer (authorized to carry a handgun while on duty at the Federal Judicial Center) sued the District of Columbia after being denied the ability to register a handgun for home protection.

Specifically, “[h]e filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home.” (D.C. v Heller, at p. 1).

The Supreme Court of the United States held:
  1. “The Second Amendment 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. . .”
  2. “Like most rights, the Second Amendment right is not unlimited. . .”
  3. “The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.” (Id. at pp. 1-3).
As hundreds of thousands of people review the decision, the legal community combs through it with a fine-tooth comb, and the media makes up their own interpretations and theories of the decision, many lay citizens are left to scratch their head wondering if all gun laws throughout the U.S. are now null and void.

The answer is simple: No.

So, what effect does this decision have on the present? The answer is not much outside the District of Columbia; and even in D.C., the effect is limited. In D.C., after 21 days, residents will be able to register handguns. This may present a problem because there aren't any firearm dealers in the District currently, due to the regulations. Thus, there will likely be an onslaught of entrepreneurs looking to open up firearm businesses, which requires a Federal Firearms License (FFL).

To acquire an FFL, one must go through the licensing requirements set forth by Bureau of Alcohol, Tobacco, Firearms, and Explosives. However, licensing takes several months, and thus, will result in further delay, especially since the D.C. Code §§ 7-2502.01-7-2506.01 bans possession, sale, transfer, manufacture, purchase or repair of handguns, and it is forbidden to sell ammunition within the District. Moreover, one must have a "retail dealer" license to sell any goods in DC, and no license can be given for selling things that are banned. Hence, now that handguns, in total, are not banned, individuals should be able to acquire FFLs.

The current law in the District provides that any semi-automatic pistol is a “machinegun.” Senator Hutchinson, from Texas, is currently working on legislation to bring D.C.'s Code into conformity with Federal law on what constitutes a “machinegun”; thus, a semi-automatic pistol would not equate to a “machinegun.”

Hence, as many are saying, so what is the big deal with the decision?

The key point in this case was the decision that the the 2nd Amendment Right to Bear Arms is an individual, not a collective, right. While the decision as it pertains to the regulations of D.C. was a 5-4 vote, the decision on whether the 2nd Amendment was an individual right was a 9-0 vote. (D.C. v Heller, at p. 1; J. Stevens dissenting, joined by J. Souter, J. Ginsburg, and J. Breyer at p. 1).

What are the ramifications of this decision for the future? As the National Rifle Association has already declared, it will be initiating follow-up litigation in Chicago to deal with the handgun ban there and in California and D.C. where individuals cannot receive public housing unless they agree not to own any firearms. Then, as time progresses, it is likely that bans on particular weapons, including weapons termed “assault weapons” merely because of their appearance, will be challenged. It is also possible that at some point in the future the Firearm Owner Protection Act (FOPA), which banned the making of machineguns after 1986, will be challenged.

However, given the narrow majority of the Court's decision and the language used by the majority, it does not appear that a current-day challenge to FOPA would result in a favorable decision.

Hence, as the Court noted, the boundaries of the 2nd Amendment have yet to be determined.

What is clear is that each and every individual citizen of the United States has a right to keep and use Arms. What those “Arms” are, will be decided in the months and years to come.
Update: June 30, 2008:

For Part II of this Series, see:
"Right to Keep and Bear Arms: Part II" (06/30/08).

Update: July 01, 2008:

For Part III of this Series, see:
"Right to Keep and Bear Arms: Part III" (07/01/08).