D.C. Mayor Adrian M. Fenty raised two principal arguments in support of the city’s ban. First, the Second Amendment ensures only that members of state militias are properly armed, not that private citizens can have guns for self‐defense and other personal uses. Second, even if the Second Amendment protects private ownership of firearms for non‐militia purposes, D.C.‘s legislature can constitutionally ban all handguns if it determines, for example, that rifles and shotguns in the home are a reasonable alternative means of self defense. The court rejected both arguments.
Essentially, wrote Justice Antonin Scalia for a 5–4 majority, the militia clause announces one purpose of the Second Amendment, but does not limit or expand the right to keep and bear arms expressly stated in the operative clause. Nor does the court’s prior precedent — United States v. Miller (1939) — say otherwise. It establishes simply that some weapons — e.g., a sawed‐off shotgun — are not protected unless they can be shown to have military utility and be in common use. Moreover, declared Scalia, the District may not categorically ban “an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self‐defense.” Alternative weapons, such as long guns, have numerous disadvantages and must, under a provision of D.C. law, be kept unloaded and either disassembled or trigger‐locked. That provision does not contain an exception for self‐defense.
In his dissenting opinion, Justice John Paul Stevens not only quarreled with Justice Scalia’s interpretation of historical events but he also implied that Scalia had abandoned true judicial conservatism by dragging the court into the “political thicket” of gun control. “Judicial restraint would be far wiser,” wrote Stevens, than mediating a political process that is “working exactly as it should.” That’s quite an astonishing statement coming from Justice Stevens — the same justice who had no such reservations just one day earlier when he voted to invalidate Louisiana’s death penalty for child rape and substitute an outright ban on capital punishment for any crime that isn’t fatal to its victim.
Justice Stephen Breyer, also dissenting in Heller, proffered this extraordinary statement: “The decision threatens to throw into doubt the constitutionality of gun laws throughout the United States.” Nonsense. Forty‐four states have constitutional provisions protecting an individual right to keep and bear arms. Legislatures in all 50 states have rejected bans on private handgun ownership. Concealed carry is permitted, with varying degrees of administrative discretion, in all states except Wisconsin and Illinois. Those laws would have remained on the books no matter what the Supreme Court had decided in Heller. The major impact of the court’s opinion will be felt, not “throughout the United States,” but in the cities and other political subdivisions that have enacted draconian gun laws under delegated power from state governments.
Heller is merely the opening salvo in a series of litigations that will ultimately resolve what weapons and persons can be regulated and what restrictions are permissible. Near term, the Court will also have to decide whether Second Amendment rights can be enforced against state and local governments. Despite those remaining hurdles, it’s fair to say that the court’s blockbuster decision makes the prospects for reviving the original meaning of the Second Amendment substantially brighter. And given the unfolding presidential contest, it’s also fair to say that the court’s razor‐thin majority conveys a crucial message: Judicial nominations matter.