D.C. v. Heller

This is the appeal by the District of Criminals to the U.S. Supreme Court on the Parker decision, which ruled that parts of DC's gun control law violate the Second Amendment. There's no word yet on whether the Supreme Court will hear the appeal.

Contrary to popular impression, there are only a few types of cases that the Supreme Court must hear. It is true that where there is a "circuit split" (meaning that different U.S. Courts of Appeals have come to different conclusions), and the point of law in question is considered important, the Supreme Court should and often does hear the appeal. But they aren't required to do so, and there are some really ugly political reasons why they might not.

Consider this: it takes four justices to agree to hear a certiorari appeal. The justices will be making decisions about whether to grant certiorari based on whether they believe that the Court will make the right decision or not. If you are Justice Thomas, for example, and you believe that there are five votes to uphold the Court of Appeals decision, then you might be inclined to vote to grant certiorari. If you believe that there are five votes to strike it down, you might vote against hearing the appeal. Similarly, if you are Justice Ginsburg, you might vote against hearing the appeal if you think it is likely that a majority will recognize that the Second Amendment protects an individual right.

The petition for certiorari from the District of Criminals essentially makes the following claims:

1. "The Right Protected by the Second Amendment Is Limited to Weapons Possession and Use in Connection With Service in State-Regulated Militias"

Their argument is that the Second Amendment was never intended to protect an individual right. This is an astonishingly silly claim, because the individual right understanding is the only view that can be documented in the eighteenth and nineteenth centuries. The idea that the Second Amendment protects only a right to possess weapons as part of state-regulated militias is a twentieth century invention--as my book For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (Praeger Press, 1994) demonstrates.

Even the one decision of the nineteenth century that denies that there is a right to keep and bear arms for self-defense, State v. Buzzard (Ark. 1842) admits that the right is still individual in nature, even though the purpose is to maintain the ability to rise up against the government:

But it was also well understood that the militia, without arms, however well disposed, might be unable to resist, successfully, the effort of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties; and therefore, to guard most effectually against such consequences, and enable the militia to discharge this most important trust, so reposed in them, and for this purpose only, it is conceived the right to keep and bear arms was retained, and the power which, without such reservation, would have been vested in the government, to prohibit, by law, their keeping and bearing arms for any purpose whatever was so far limited or withdrawn; which conclusion derives additional support from the well-known fact that the practice of maintaining a large standing army in times of peace had been denounced and repudiated by the people of the United States as an institution dangerous to civil liberty and a free State, which produced at once the necessity of providing some adequate means for the security and defense of the state, more congenial to civil liberty and republican government. And it is confidently believed that the people designed and expected to accomnplish this object by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose; but it surely was not designed to operate as an immunity to those who should so keep or bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society.

The whole decision is written like that--and the reasoning that went into it wasn't any better. More typical are decisions such as State v. Newsom (N.C. 1844), which do not dispute the individual nature of the right:

The Constitution of the United States was ordained and established by the people of the United States, for their own government, and not for that of the different States. The limitations of power, contained in it and expressed in general terms, are necessarily confined to the General Government. It is now the settled construction of that instrument, that no limitation upon the power of government extends to, or embraces the different States, unless they are mentioned, or it is expressed to be so intended. Barrow v. The Mayor, &c. of Baltimore, 7 Peter's Rep. 240. Raleigh and Gaston Rail Road Company v. Davis, 2 Dev. & Bat. 459. In the 2d article of the amended Constitution, the States are neither mentioned nor referred to. It is therefore only restrictive of the powers of the Federal Government.

You can see a long list of decisions here.

This is so clearly the case that those arguing for the collective rights theory are reduced to claiming that "bearing arms" is only used in a collective sense, and this proves that the Second Amendment is not an individual right. This turns out to be factually incorrect--and this claim has not a single statement from anyone in the eighteenth or nineteenth centuries to back it up--while we have lots of statements by courts, constitutional commentaries, and newspapers of the time demonstrating that the right was individual in nature.

2. "Laws Limited to the District of Columbia Do Not Violate the Second Amendment"

This is essentially a claim that even if the Second Amendment was an individual right, it was only intended to limit the states, not the federal government. This is incorrect because Barron v. Baltimore (1833) explicitly defined that the Bill of Rights was a limitation on the federal government's power--and James Madison's notes for the introduction of the Bill of Rights clearly establish that they were to "protect private rights."

Even DC's petition points to a large number of state courts that refused to consider the Second Amendment as applying to state laws--but those decisions overwhelming recognized the Second Amendment as limiting what actions the federal government could take. They were not protections of the states, but of individuals against the federal government

3. The DC petition argues that even if the right is individual, there are good public policy reasons for banning handguns, because rifles and shotguns aren't banned. This is a position that gun control groups used to use, back in the 1970s and even in the early 1980s, when they were only trying to ban handguns. But a lot of the decisions that they used to defend that position are ones like English v. State (Tex. 1872) that argued that only weapons of civilized warfare (you know, like AR-15s and AK-47s) are protected arms.

What also makes this argument not work pragmatically is that handguns are indeed criminally misused more than long guns--but they are also used defensively more than long guns, simply because they are so handy.

From a Constitutional standpoint, the problem is that handguns were commonly owned in 1791 when the states ratified the Second Amendment. In my research for Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), I have been surprised at how little regulation of handguns there was. In the entire period before the War of 1812, I could find only one difference between how handguns were regulated, and other firearms. During the American Revolution, Tories were often disarmed of long guns, partly because they weren't trusted, and partly because those guns were needed to arm the poorest members of the militia. But handguns were often exempted from those confiscations.