On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional.
On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory. In the U. Supreme Court considered the matter in United States v. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated milita.
This precedent stood for nearly 70 years when in the U. At the very least it suggested that Heller had been interpreted in different ways in different parts of the country. That it chose to remain outside of the debate, despite conditions which suggested it might take action, is both important and one of the more surprising legacies of Heller and McDonald. No Court scholars would expect that a ruling from the Court in a culture wars case would end the debate over a given issue but the impact of Heller on Second Amendment debates was particularly surprising.
Such results were not only surprising but had significant implications for Second Amendment debates. The result of Heller was not, as Winkler hoped, a more reasonable discussion about reducing gun violence in the US, but instead continued, and perhaps more extreme, polarization.
In such a context, the vast majority of courts which upheld gun control laws using Heller as a foundation appeared to be, or could be portrayed as, making decisions based less on legal principles and more on political grounds clothed in the language of the law. Both only intensified the battle. But to those familiar with the Court, knowledge of its usual working practices provide some hints. The signs are that no theoretical or jurisprudential approach drew a majority of the Justices. Equally, in the absence of a split between the lower courts, nothing compelled the Justices to become involved either.
Donald Trump promised in his election campaign to appoint justices who supported Second Amendment rights; with the Senate under Republican control a successful nomination seems likely. Which approach does eventually draw together a new majority will be crucial for the future direction of the Second Amendment. As and when the Court does grant certiorari in a new gun rights case, whether prompted by a circuit split or by the emergence of a consensus within the Court, the ruling will be handed down in a situation that is arguably even more polarised as a result of the debate over Heller.
Thus any decision is even less likely to end the battle over the Second Amendment. But irrespective of the long term legacy of Heller and McDonald , the early responses to both mark a particular moment in the debate about the extent of gun rights and the scope of the Second Amendment in the United States in the early 21 st Century, one which shows that the impact of a Court decision may not always be the one that is most expected. Raoul Berger, Government By Judiciary: The Transformation of the Fourteenth Amendment London: Harvard University Press, What Hath Heller Wrought?
Chicago-Kent Law Review 76 Oxford University Press, Marcia Coyle, The Roberts Court: The Struggle for the Constitution New York: Fordham University Law Review 65 March Fidelity in Constitutional Theory. Fordham University Law Review 82 November The New Originalism in Constitutional Law.
District of Columbia v. Republican National Platform http: Cambridge University Press, Jeffrey Toobin, The Oath: Mark Tushnet, Out of Range: Mark Tushnet, In The Balance: Duke University Press, Adam Winkler, Gun Fight: The numbers are contested, however. Nobody referred to landlines until wireless technology came around; before that all telephone lines were landlines … So it was with originalism: That was the only method that existed until the mid th century.
The literature on originalism is extensive. This definition underpins the following discussion. Specifically, she argues, the arguments made by the majority were far more deeply influenced by the political debates about gun control that developed after Brown v. Board of Education than by the history of the eighteenth century. In essence, Siegel argues that, consciously or unconsciously, the Heller majority was influenced in its reading of history by recent or contemporary politics, a claim most historians would recognise as familiar in historical study.
On collective rights, see the argument at n. See, for example, Carl T. Harvard Law School professor Laurence Tribe contended that the Second Amendment protects an individual right, and predicted that if Parker is reviewed by the Supreme Court "there's a really quite decent chance that it will be affirmed. Erwin Chemerinsky , then of Duke Law School and now dean of the University of California, Berkeley School of Law , argued that the District of Columbia's handgun laws, even assuming an "individual rights" interpretation of the Second Amendment, could be justified as reasonable regulations and thus upheld as constitutional.
Professor Chemerinsky believes that the regulation of guns should be analyzed in the same way "as other regulation of property under modern constitutional law" and "be allowed so long as it is rationally related to achieving a legitimate government purpose. Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, agreed with the court's ruling but describes that his interpretation of the Second Amendment would not preclude all governmental regulation of private ownership of weapons:.
So there are some restrictions that are permissible and it will be the task of the legislature and the courts to ferret all of that out and draw the lines. I am sure, though, that outright bans on handguns like they have in D. America went over years without knowing whether a key provision of the Bill of Rights actually meant anything. We came within one vote of being told that it did not, notwithstanding what amounts to a national consensus that the Second Amendment means what it says: The right of the people to keep and bear arms shall not be infringed. Taking rights seriously, including rights we might not favor personally, is good medicine for the body politic, and Heller was an excellent dose.
Wade , stating that it created a federal constitutional right that did not previously exist, and he asserts that the originalist method — to which Justice Antonin Scalia claimed to adhere — would have yielded the opposite result of the majority opinion.
Suspended – Medium
The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness.
Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.
Harvie Wilkinson III , chief judge of United States Court of Appeals for the Fourth Circuit , consents to Posner's analysis, stating that Heller "encourages Americans to do what conservative jurists warned for years they should not do: Heller thus represents the worst of missed opportunities—the chance to ground conservative jurisprudence in enduring and consistent principles of restraint.
The Constitution expresses the need for judicial restraint in many different ways—separation of powers, federalism, and the grant of life tenure to unelected judges among them. Alan Gura , Lead Counsel for Respondent in Heller rejects Wilkinson's criticism, stating that "Rather, the Court affirmed the Second Amendment's original public meaning, as confirmed by its plain text. Having determined the Amendment's meaning, the Court showed the proper level of deference to the D. City Council's outright repudiation of the constitutional text: Since the June ruling, over 80 different cases have been heard in lower federal courts on the constitutionality of a wide variety of gun control laws.
In addition, courts have heard challenges to laws barring guns in post offices and near schools and laws outlawing "straw" purchases, carrying of concealed weapons, types of ammunition and possession of unregistered firearms. The courts have upheld most of these laws as being constitutional. 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 on the commercial sale of arms.
Consistently since the Heller ruling, the lower federal courts have ruled that almost all gun control measures as presently legislated are lawful and that according to UCLA professor of constitutional law Adam Winkler: Robert Levy, the executive director of the Cato Institute who funded the Heller litigation has commented on this passage describing constitutionally acceptable forms of prohibitions of firearms: Similar to the lifting of gun bans mentioned previously in the settlements of lawsuits filed post- Heller , in US v.
Arzberger , also decided post- Heller , it was noted:. To the extent, then, that the Second Amendment creates an individual right to possess a firearm unrelated to any military purpose, it also establishes a protectible liberty interest. And, although the Supreme Court has indicated that this privilege may be withdrawn from some groups of persons such as convicted felons, there is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm.
The new provisions were: In response, Dick Heller challenged these new restrictions filing a civil suit named Heller v. District of Columbia Civil Action No. On March 26, , the D. District Judge Ricardo M.
Urbina denied Dick Heller's request and granted the cross motion, stating that the court "concludes that the regulatory provisions that the plaintiffs challenge permissibly regulate the exercise of the core Second Amendment right to use arms for the purpose of self-defense in the home. Dick Heller's application to register his semi-automatic pistol was rejected because the gun was a bottom-loading weapon, and according to the District's interpretation, all bottom-loading guns, including magazine-fed non-assault-style rifles, are outlawed because they are grouped with machine guns.
On December 16, the D. Council unanimously passed the Firearms Registration Emergency Amendment Act of [79] which addresses the issues raised in the Heller Supreme Court decision, and also puts in place a number of registration requirements to update and strengthen the District's gun laws.
Search form
Justice Antonin Scalia's opinion for the majority provided Second Amendment protection for commonly used and popular handguns but not for atypical arms or arms used for unlawful purposes, such as short-barreled shotguns. On July 24, , the U. District Court for the District of Columbia ruled, in Palmer v. District of Columbia , that the District's total ban on the public carrying of ready-to-use handguns is unconstitutional. Accordingly, the Court grants Plaintiffs' motion for summary judgment and enjoins Defendants from enforcing the home limitations of D.
Furthermore, this injunction prohibits the District from completely banning the carrying of handguns in public for self-defense by otherwise qualified non-residents based solely on the fact that they are not residents of the District. Southern District of New York Magistrate Judge James Francis has said that, prior to Heller , it would not have been considered unreasonable to require a defendant to surrender a firearm as a condition of pretrial release. Specifically, according to Judge Francis: This all changed, with the recent U. Supreme Court decision in District of Columbia v.
Heller ; S. Thus, in the absence of an individualized determination at a bail hearing, requiring the defendant to give up any firearms violates due process. Cuomo and Maloney v. Spitzer , F.
The case involved a state ban on Nunchaku sticks a martial arts weapon in New York. In a memorandum opinion dated June 29, , the Supreme Court vacated the Second Circuit decision in Maloney and remanded for further consideration in light of the holding in McDonald v.
City of Chicago that the Second Amendment does apply to the states. The Second Circuit has remanded the case to the trial court. The NRA has filed five related lawsuits since the Heller decision. The fourth NRA lawsuit against Chicago was rejected. On June 2, , the Court of Appeals affirmed the district court's decision, based on the theory that Heller applied only to the Federal Government including the District of Columbia , and not to states or their subordinate jurisdictions. City of Chicago and remanded it back to Seventh Circuit to resolve conflicts between certain Chicago gun restrictions and the Second Amendment.
Chicago's handgun law was likened to the D. Similarly, three Illinois municipalities with gun control measures on the books that previously had banned all handguns have rescinded their handgun bans. Chicago , [99] decided July 6, , the Seventh Circuit reversed a district court decision that the post- McDonald measures adopted by the City of Chicago were constitutional.
D.C. Could Become Nation's Most Permissive Gun Jurisdiction, Under House Proposal (Video)
The Chicago law required firearms training in a shooting range in order to obtain a gun permit, but also banned shooting ranges within the City of Chicago. The City had argued that applicants could obtain their training at gun ranges in the suburbs. The opinion noted that Chicago could not infringe Second Amendment rights on the grounds that they could be exercised elsewhere, any more than it could infringe the right to freedom of speech on the grounds that citizens could speak elsewhere.
On January 14, , in Guy Montag Doe v. The San Francisco lawsuit resulted in the elimination of the gun ban from the SF Housing Authority residential lease terms. Tim Larsen speaking for the Housing Authority said that they never intended to enforce its housing lease gun ban against law-abiding gun owners and have never done so. On February 13, , in Peruta v. San Diego , the United States Court of Appeals for the Ninth Circuit decided that the San Diego policy to disallow both concealed carry , and the State of California law that disallows open carry anywhere in the state, were not acceptable under Supreme Court precedent in Heller and McDonald.
A "responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense. On January 10, , in Morris v. Army Corps of Engineers , the District Court struck down a Corps of Engineers regulation barring possession of loaded guns in recreation areas surrounding Corps dams.
The court held that tents are akin to homes, and under Heller , Second Amendment rights are protected. Initial reaction has deemed the Heller ruling to be of great significance, although it remains too soon to tell what the long-term effects may be. In , both Levinson and Mark Tushnet speculated that it is quite unlikely that the case would be studied as part of casebooks of future law schools.
The decision in McDonald v. City of Chicago , which was brought in response to Heller and decided in , did invalidate much of Chicago's gun purchase and registration laws, and has called into question many other state and local laws restricting purchase, possession, and carry of firearms.