Publisher's note: This begins the fourth part of this multi-part series by Diane Rufino examining District of Columbia v. Heller (2008). Part I, II, III and all succeeding parts of this mammoth treatise can be found here.
CONCLUSION (and POST-HELLER GUN RIGHTS):
We say the Heller opinion was an "ORIGINALIST"
opinion because the analysis of the Second Amendment was based purely on an examination of history, with an emphasis on what the words and intent of the "Right to Keep and Bear Arms" meant at the time it was adopted by the American colonies and then when they became states and then finally when they incorporated into the federal Union with the Constitution.
Indeed, District of Columbia v. Heller is the most significant case which applied "originalism"
in analyzing the Constitution, and together with the companion case, McDonald v. City of Chicago (2010), addressed below, are the most significant Second Amendment cases to date. We can expect another similarly significant case this fall - New York State Rifle & Pistol Association v. City of New York. The New York State Rifle & Pistol Association is the NY state chapter of the NRA.
Originalism is a concept regarding the interpretation of the Constitution that asserts that all terms and provisions in the Constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified. Justice Scalia was the most famous proponent of Originalism.
In 2010, the Supreme Court heard the companion case to Heller - McDonald v. City of Chicago. Heller announced what our Second Amendment rights are with respect to action by the federal government. With McDonald, the Supreme Court announced what our Second Amendment rights are with respect to action by the States. The case involved a state gun control law, as opposed to a federal gun control law. The case arose in 2008, when Otis McDonald, a retired African American custodian living in a neighborhood fraught with robberies, shootings, and other crimes, and others filed suit to challenge provisions of a 1982 Chicago law that, among other things, generally banned the new registration of handguns and made registration a prerequisite of possession of a firearm. McDonald alleged that the law violated his right to possess and carry weapons, which the Supreme Court had found to be protected by the Second Amendment in District of Columbia v. Heller. In reaching a ruling in McDonald's favor, the Court held that the Second Amendment is one of the liberty rights to be incorporated on the states thru the 14th Amendment, and therefore states cannot pass laws to violate or burden that right.
Together, District of Columbia v. Heller and McDonald v. Chicago cases articulate the view that the Second Amendment recognizes and protects an individual's right to keep and bear arms for self-defense. The cases reach that conclusion after an in-depth and judicious review of the history and roots of the amendment.
However, and unfortunately, the cases have not seemed to stop the passage of gun-control laws or talk of more and more federal gun-control laws. Besides the general ignorance of many of our federal legislators and our state legislators, and the ever-important goal of disarming citizens to prevent their violence upon one another (always the risk in a free society), there are some limitations with the ruling and clearly ways government can get around it (or frustrate the exercise of the right protected in the Second Amendment:
(1) First of all, Dick Heller found no relief, even after spending 7 years litigating his challenge and winning perhaps one of the most significant cases in the Supreme Court. The ruling was not quite the sweeping gun-freedom victory he expected and it certainly didn't go far enough to abolish burdensome gun permitting regulations, especially in his home of DC. Despite his court victory, he still was unable to acquire a gun permit. In the weeks since the Heller decision, the city hastily enacted a new and lengthy set of regulations and so when Heller went to the station with his revolver, he was told that he didn't bring the many documents that the district had decided were required to register a handgun. He could take his revolver back home, he was told, but he would still have to keep it trigger-locked and unloaded. Not much had changed.
(2) Both the Heller and McDonald rulings addressed the right to keep and bear arms in one's home. The lawsuit did not address whether the Second Amendment guarantees any right beyond that and hence the courts did not rule so. In October (of this year, 2019), the Supreme Court will hear a case, New York State Rifle & Pistol Association v. City of New York, which addresses this very question.
(3) Related to the question of whether the Second Amendment extends to gun rights outside one's home, the Heller and McDonald rulings also leave open the question of whether conceal carry is covered.
(4) Scalia's majority opinion in the Heller case included this proviso: "Nothing in our opinion should be taken to cast doubt" on longstanding regulations such as restrictions on felons "or laws imposing conditions and qualifications on the commercial sale of arms." In his opinion, he wrote: "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Apparently, Scalia was carving out areas where he believed Congress could rightfully legislate with respect to the Second Amendment. According to Robert Levy, who financed the lawsuit: "Everybody understood - or at least any reasonable person understood - that we can't have 11-year-olds with machine guns in front of the White House when the president is delivering a speech. Some weapons can be regulated, some people can be regulated, like minors and felons and mentally incompetent people, and some circumstances can be regulated. Battles over defining those circumstances will be going on for a long time." Why can minors be regulated with regard to firearms for self-defense? The probable answer is because they are mature enough and their brains have not developed to the point where they can intelligently and rationally predict or comprehend the consequences of their actions. Why can felons and mentally incompetent people be regulated? Liberty is understood as the free exercise of one's inalienable and essential rights, to the point that such exercise doesn't burden or violate another person's equal rights. Felons have already proven that they are incapable of conforming their conduct to be consistent with the rights of others and hence our society deems that a rightful punishment is to deny them access to firearms. They cannot be trusted. Incompetent individuals in many cases can't control their actions, thoughts, re-actions. They also cannot responsibly conform their conduct so as not to harm or invade the liberties of others. They are often unpredictable.
(5) In the Court's eyes, which part of the Second Amendment will control what types of "arms" are covered? Will the courts use the prefatory clause (the militia) or the operative clause (individual right)?
(6) Members of the US Congress clearly have not read the Second Amendment, the Preamble to the Bill of Rights, or the Heller and McDonald opinions. They continue to push for more and more gun control and policies to permit government confiscation of firearms (Red Flag Laws). Ever since Andrew Jackson and then Abraham Lincoln, US presidents have argued that the office can assume undelegated powers (ie, unconstitutional powers) as long as the country or the American people need it to be so. In other words, they implicitly view the Constitution as either a "living, breathing document" or they have treated it as a dead document, something that presidents can choose to guide them but certainly not to confine them. The US Congress has, over the same time, done the very same thing and the courts have very often put a rubber stamp on their power grabs. It appears that Congress and the states will continue to violate the Second Amendment by claiming that they need to keep people, schools, federal buildings, churches, etc safe. If their laws are unconstitutional (note that each state has their own Bill of Rights, including a Second Amendment version, in their constitutions), they will simply amend the laws or pass new ones which may also be unconstitutional, but in the meantime will burden gun access and ownership, and will restrict carry.
In July 2008, less than a month after the Heller opinion was handed down and just after he still was unable to get a permit for his revolver, Dick Heller filed a lawsuit against the District of Columbia. (Heller v. District of Columbia II, or "Heller II") challenging the new regulations DC lawmakers quickly put in place to save their gun law.
The case has been far more time-consuming than Heller expected. After parting ways with Gura and Levy, Heller enlisted Stephen Halbrook as his lawyer, the Second Amendment attorney that the NRA hired to try to block the initial Heller lawsuit. Again, after 7 years of litigation (punctuated by repeated changes by DC council's to its gun regulations), Halbrook managed to win a ruling by a DC Circuit of Appeals panel in September 2015 invalidating 4 of the 10 restrictions Heller challenged. In 2016, the full DC Appeals Court agreed with the ruling. Halbrook and Heller have not signaled if they will seek Supreme Court review. [Mark Obbie, "He Won the Supreme Court Case That Transformed Gun Rights. But Dick Heller Is a Hard Man to Please"]
The provisions Heller II successfully invalidated include a requirement to renew gun permits every three years, a limit of one handgun registration per month, and requirements for permit holders to pass a test on D.C. gun laws and show up at police headquarters with the gun to be registered. Left intact, however, were the District's registration requirement for long guns, a required safety class and registration fees for permit holders, and other obstacles to the sort of frictionless, gun-friendly city Heller wants D.C. to be. In October 2015 in an interview published in the magazine America's 1st Freedom, the NRA's official magazine. He said: "We still have to be registered and fingerprinted, so the worst part is we will still be treated like criminals, but the criminals won't be standing in line to get in." [Ibid]
Heller, who is now 76 years old, has been frustrated that he had to waste 14 years of his life just to have the rights Americans won and secured a long time ago vindicated in an American court. He assumed that officials who take an oath of office would be on the same side of the American people.
Later in 2008, after the Supreme Court handed down the Heller ruling, Dick Heller created the Heller Foundation. He then paired with the U.S. Bill of Rights Foundation in order to promote "a world where arms and self-defense rights are considered as essential to human life as food and water." In such a capacity, on November 2, he signed on to an amicus brief filed by Larry Pratt and the organization he founded, Gun Owners of America, in a lawsuit that challenged the federal machine gun ban (passed as part of the 1986 Firearm Owners Protection Act). [Hollis v. Lynch]. Gun Owners of America argued that that possession of machine guns by Americans is compatible with the Second Amendment and that the amendment is not about not about hunting or target shooting, but about self-defense against individuals and/or the state. The amicus brief characterized machine guns as "the lineal descendants of founding-era firearms" fulfilling the ultimate purpose of the Second Amendment, "to allow the people to take up effective arms against a tyrant." On June 30, 2016, the U.S. Court of Appeals for the 5th Circuit issued its unanimous opinion upholding the federal machine-gun ban.
What can we expect in the post-Heller and post-McDonald era with respect to gun rights? I think Robert Levy said it best: "Some weapons can be regulated, some people can be regulated, and some circumstances can be regulated. Battles over defining those circumstances will be going on for a long time."
Adam Winkler, "Gun Fight: The Battle Over the Right to Bear Arms in America." 2011, W.W. Norton & Company, NYC.
Don B. Kates Jr, "Why a Civil Libertarian Opposes Gun Control," Civil Liberties Review 3 (June/July and Aug./Sept. 1976).
Don B. Kates, Jr. "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Michigan Law Review (MICH. L. REV.) 204-273 (1983). Referenced: http://www.constitution.org/2ll/2ndschol/57mich.pdf
Robert A. Sprecher, "The Lost Amendment," American Bar Association Journal 51 (1965).
William Blackstone, Commentaries on the Laws of England (1769).
Joseph Story, Commentaries on the Constitution of the United States (1833).
Malcolm, To Keep and Bear Arms (1994); pp. 31-53.
Dumbauld, The Bill of Rights and What It Means Today (1957); pg. 51.
William Rawle, A View of the Constitution of the United States of America (1825); pg. 122.
Supreme Court Opinion: District of Columbia v. Heller, 554 U.S. 570 (2008) - https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
Complaint: Parker v. District of Columbia (2003), in the District Court for the District of Columbia - https://object.cato.org/sites/cato.org/files/pubs/pdf/gunsuit.pdf
Mark Obbie, "He Won the Supreme Court Case That Transformed Gun Rights. But Dick Heller Is a Hard Man to Please," The Trace, March 20, 2016. Referenced at: https://www.thetrace.org/2016/03/dick-heller-second-amendment-hero-abolish-gun-regulation/
Diane Rufino, "The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not)," January 14, 2019.
Diane Rufino, "Making Sense of the Meaning and Intent of the Second Amendment: It's Not Difficult Folks!," May 23, 2017. Referenced at: https://forloveofgodandcountry.com/2017/05/25/making-sense-of-the-meaning-and-intent-of-the-second-amendment-its-not-hard-folks/
"Post Heller Jurisprudence," Congressional Research Service, Updated March 25, 2019. Reference: https://fas.org/sgp/crs/misc/R44618.pdf