D.C. v. Heller

  • June 15, 2015
    Guest Post

    by Eric Ruben, Jurisprudence Fellow, The Brennan Center for Justice at New York University School of Law

    Tomorrow, an en banc panel of the Ninth Circuit will rehear oral arguments in Peruta v. County of San Diego, a case that spawned an originalist opinion last year that would have drastically increased the number of people publicly carrying handguns in California and Hawaii.

    California, Hawaii, and seven states outside the Ninth Circuit have “may issue” laws and policies requiring applicants to show a heightened need for self-defense — something beyond a generalizable fear of being attacked — before they can receive a permit to carry concealed handguns in public. The plaintiffs in Peruta wanted to carry handguns, could not satisfy this requirement, and sued in federal court alleging a violation of their Second Amendment rights.

    Peruta represents one of the most significant Second Amendment cases since 2008, when the Supreme Court decided District of Columbia v. Heller. In Heller, the Supreme Court held for the first time in over 200 years that the Second Amendment protects an individual right to possess a handgun inside the home for self-defense. In 1791, when the Second Amendment was adopted, modern semi-automatic firearms didn’t exist and elected officials weren’t struggling to find solutions to a massive gun crime problem. But Heller expressly rejected an analysis that took into consideration the government’s interest in dealing with a deadly modern-day problem. Rather, the Heller majority, in an opinion by Justice Scalia, relied almost exclusively on an historical analysis for its conclusion, asserting that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.” The history considered in Heller, however, arguably does not dictate Heller’s holding. Liberal and conservative commentators alike have criticized Heller’s originalism for providing a misleading historical cloak for an activist judicial ruling.

    Heller left unresolved many obvious issues, such as the scope of the right to bear arms outside the home and how lower courts should decide Second Amendment challenges — through a purely originalist analysis or by applying means-ends scrutiny that would take into consideration the government’s interest in preventing violent crime, death, and injuries. Those issues have been considered by lower courts in the hundreds of legal challenges to firearm regulations since Heller, and they are at the heart of Peruta.

    The Second, Third, and Fourth Circuits have held that “may issue” laws like California’s in New York, New Jersey, and Maryland are constitutional. Those courts, and the majority of lower courts considering Second Amendment challenges since Heller, have refrained from grounding their decisions in originalism. The rejection of originalism as the sole basis for decision making is likely a reflection of the fact that (as in Heller) the history is often disputed and busy judges are neither trained nor equipped to answer nuanced historical questions on the basis of necessarily limited records. When the Second Circuit considered New York’s “may issue” statute in 2012, it found the history “highly ambiguous” and upheld the law under intermediate scrutiny, concluding that the law was substantially related to the achievement of an important government interest — public safety and crime prevention. The Third and Fourth Circuits employed similar analyses to uphold New Jersey’s and Maryland’s “may issue” laws in 2013.

  • May 5, 2014
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law; Author, Gunfight: The Battle Over the Right to Bear Arms in America

    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    Heller was right. The Constitution protects the right of individuals to have arms for personal protection. Even if you don’t believe this accurately describes the original meaning of the Second Amendment – the history of which has confounded many – you should support the result if you believe the Constitution protects fundamental, unenumerated rights. There’s a long commitment in American constitutionalism to unwritten rights, including the right to privacy and the right to marry. In identifying which unwritten rights are protected by the Constitution, the courts ask whether the right, as a matter of history and tradition, has been respected by the American people. Under the doctrine of substantive due process, if the right is “objectively, deeply in this Nation’s history and tradition” it will be protected. The right of individuals to have guns for personal protection, especially in the home, easily passes this test.

    The right of individuals to have a gun in the home for self-defense has long been respected by American law. Since the founding, no state has ever prohibited its residents from having a gun in the home. Although Washington, D.C. effectively banned guns in the home for self-defense and Chicago banned handguns (while allowing long guns), these idiosyncratic outliers only highlight the dominant, longstanding legal tradition of allowing individuals to own guns. In numerous due process cases, the Supreme Court has looked to the absence of laws prohibiting the relevant behavior as strong evidence of a deeply rooted right. In Roe v. Wade, the Court explained that abortions in early pregnancy were not barred under the common law. In Lawrence v. Texas, the Court recognized that laws singling out same-sex sodomy for criminal punishment, while allowing opposite-sex couples to engage in the same activity, were contrary to our legal traditions. In Washington v. Glucksberg, the Court denied substantive due process protection for the right to die by pointing to the long history and tradition of laws against suicide. There’s no history and tradition of laws preventing law-abiding people from having guns.

  • May 5, 2014
    Guest Post

    by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor, The University of Chicago

    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    In many respects, the United States Constitution has served as a model for constitutions throughout the world. Of the 188 nations that have written constitutions, the vast majority have adopted fundamental guarantees that were first fully articulated in the United States Constitution.

    Indeed, 97 percent of all the world's constitutions now protect the freedom of religion; 97 percent protect the freedom of speech and press; 97 percent protect a right of equality; 97 percent protect the right to private property; 95 percent protect the freedom against unreasonable searches; and 84 percent forbid cruel and unusual punishment. These freedoms, which were first constitutionalized in the United States, are now widely recognized as fundamental to a free, humane and civilized society.

    On the other hand, only 1 percent of all the other nations of the world recognize a constitutional right to keep and bear arms. Of the 188 nations with written constitutions, only Mexico and Guatemala have followed our example. Every other nation has rejected the notion that individuals have a fundamental right to purchase and possess firearms.

    These data are interesting because they shed light on the meaning of the Second Amendment. What did the Framers have in mind? Could they really have enshrined a right that virtually no one else in the world values?

  • September 30, 2013

    by Jeremy Leaming

    Earlier this year, a little more than a month after mass shootings at a Connecticut elementary school, President Obama discussed the challenges of trying to implement gun safety measures and announced more than 20 executive orders, including an order for the Centers for Disease Control to study ways to reduce gun violence. The president’s call for Congress to take action and approve modest new measures flopped … in the Senate. And even if senators had approved new measures promoting gun safety it is hard to believe they would have been considered in the House of Representatives, where Republicans are bent on protecting the financial industry and defunding of the Affordable Care Act.  

    But executive orders alone are hardly going to reframe the debate let alone significantly curtail gun violence. Yet another study shows how obstinate refusal to even basic reforms of gun regulation is needlessly taking innocent lives yearly.

    In an extensive piece forThe New York Times, Michael Luo and Mike McIntire reveal that accidental deaths of children because of guns are far higher than government statistics show, primarily because of the success of the gun lobby in defeating all kinds of efforts, including research to promote gun safety. The Times reported that a “review of hundreds of child firearm deaths found that accidental shootings occurred roughly twice as often as the records indicate, because of idiosyncrasies in how such deaths are classified by authorities. As a result, scores of accidental killings are not reflected in official statistics that have framed the debate over how to protect children from guns.”

    That debate has largely been controlled by gun enthusiasts and their lobbyists, who frequently blast any regulation as an encroachment on Second Amendment rights to keep and bear arms. For, example, The Times noted that the National Rifle Association cited the inaccurate numbers of accidental child firearm deaths in its campaign to scuttle laws requiring the safe storage of guns. State lawmakers ape the NRA’s talking points, often arguing that safe-storage laws would undermine adults’ efforts to protect themselves from intruders.

    Moreover the newspaper noted that the gun lobby has remained successful at making sure firearms remain exempt from “regulation by the Consumer Product Safety Commission.” As one expert lamented, “We know in the world of injury controls that designing safer products is often the most efficient way to reduce tragedies. Why, if we have childproof aspirin bottles, don’t we have childproof guns?”

    The U.S. Supreme Court, led by Justice Antonin Scalia, ruled in 2008 in D.C. v. Heller that the Second Amendment protects an individual right to bear arms. That ruling greatly enhanced the gun lobby’s cudgel against any consideration of new gun safety measures, such as ones intended to encourage parents to keep firearms stored safely.

  • February 13, 2013

    by Jeremy Leaming

    For far too long the gun lobby has loudly proclaimed that the Constitution bars almost any kind of law aimed at curbing gun violence. But since a string of mass shootings last year culminating in the Newtown mass shooting that took the lives of 20 children, there’s been a growing chorus of voices pushing back against the gun lobby’s platitudes and simplistic, often misleading, interpretation of the Second Amendment.

    More than 50 constitutional law scholars signed a letter explaining why the Second Amendment is not absolute or unlimited. Very few of rights and liberties enshrined in the Constitution are absolute. One of the scholars who signed that letter is among the nation’s greatest constitutional law scholars -- Laurence H. Tribe, a distinguished Harvard Law School professor.

    Hours before President Obama, a former student of Tribe’s, gave his State of the Union Address, Tribe testified before a Senate Judiciary committee examining ways to curb gun violence without trampling the Second Amendment right to bear arms.

    In his oral and written testimony Tribe made it clear that efforts to reduce – not eliminate – gun violence through government action are not beyond reach because of the Second Amendment. In current Supreme Court rulings, such as D.C. v. Heller, Tribe explained the justices took certain policy choices off the table for consideration and “thereby cleared the path to reasonable regulations to be enacted without fear that those policy choices would ever open the door to unlimited government control or be imperiled by exaggerated interpretations of the Second Amendment.” (Click picture of Tribe for video of his opening remarks, or see here.)

    Tribe noted that Justice Antonin Scalia author of the majority opinion in Heller noted that the court’s interpretation of the “Constitution leaves open a variety of regulatory tools to combating the problem of gun violence in this country.”

    In his written testimony, Tribe put it this way: “Proposals to disarm the American people, to leave firearms solely in the hands of the military and the police, have been decisively taken off the table – if they were ever truly on the table – by the Supreme Court’s Second Amendment decisions in 2008 and 2010 [Heller and McDonald v. Chicago respectively].”