Supreme Court of the
June 26, 2008
[In
this landmark 5-4 decision the Court holds that the Second Amendment protects a
personal right to keep and bear arms irrespective of any service in a
militia. Moreover, the Court
strikes down a
Justice
Scalia delivered the opinion of the
Court.
We consider whether a
I
The
Respondent Dick Heller is a D. C. special police officer authorized
to carry a handgun while on duty at the
We granted certiorari.
II
We turn first to the meaning of the
Second Amendment.
A
The Second Amendment provides: "A well
regulated Militia, being necessary to the security of a
The two sides in this case have set out very different interpretations of
the Amendment. Petitioners and today's dissenting Justices believe that it
protects only the right to possess and carry a firearm in connection with
militia service.
Respondent argues that it protects an individual right to
possess a firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.
The Second Amendment is naturally divided into two parts: its prefatory
clause and its operative clause. The former does not limit the latter
grammatically, but rather announces a purpose. The Amendment could be rephrased,
"Because a well regulated Militia is necessary to the security of a free State,
the right of the people to keep and bear Arms shall not be infringed."
Although this structure of the Second Amendment is unique in our Constitution,
other legal documents of the founding era, particularly individual-rights
provisions of state constitutions, commonly included a prefatory statement of
purpose.
Logic demands that there be a link between the stated purpose and the
command. The Second Amendment would be nonsensical if it read, "A well regulated
Militia, being necessary to the security of a
1. Operative
Clause.
a. "Right
of the People." The first
salient feature of the operative clause is that it codifies a "right of the
people." The unamended Constitution and the Bill of Rights use the phrase "right
of the people" two other times, in the First Amendment's Assembly-and-Petition
Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth
Amendment uses very similar terminology ("The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained
by the people"). All three of these instances unambiguously refer to individual
rights, not "collective" rights, or rights that may be exercised only through
participation in some corporate body.
Three provisions of the Constitution refer to "the people" in a context
other than "rights"the famous preamble ("We the people"), §2 of Article I
(providing that "the people" will choose members of the House), and the Tenth
Amendment (providing that those powers not given the Federal Government remain
with "the States" or "the people"). Those provisions arguably refer to "the
people" acting collectively--but they deal with the exercise or reservation of
powers, not rights. Nowhere else in the Constitution does a "right" attributed
to "the people" refer to anything other than an individual right.
What is more, in all six other provisions of the Constitution that
mention "the people," the term unambiguously refers to all members of the
political community, not an unspecified subset.
This contrasts markedly with the phrase "the militia" in the prefatory
clause. As we will describe below, the "militia" in colonial
We start therefore with a strong presumption that the Second Amendment
right is exercised individually and belongs to all
Americans.
b. "Keep
and bear Arms." We move now from the
holder of the right--"the people"--to the substance of the right: "to keep and
bear Arms."
Before addressing the verbs "keep" and "bear," we interpret their object:
"Arms." The 18th-century meaning is no different from the meaning today. The
1773 edition of Samuel Johnson's dictionary defined "arms" as
"weapons of offence, or armour of defence."
Timothy Cunningham's
important 1771 legal dictionary defined "arms" as "any thing that a man wears
for his defence, or takes into his hands, or useth in wrath to cast at or strike
another."
The term was applied, then as now, to weapons that were not specifically
designed for military use and were not employed in a military capacity. For
instance, Cunningham's legal dictionary gave as an example of usage: "Servants
and labourers shall use bows and arrows on Sundays,
&c. and not bear other arms."
Although one founding-era thesaurus limited
"arms" (as opposed to "weapons") to "instruments of offence generally
made use of in war," even that source stated that all firearms constituted
"arms."
Some have made the argument, bordering on the frivolous, that only those
arms in existence in the 18th century are protected by the Second Amendment. We
do not interpret constitutional rights that way. Just as the First Amendment
protects modern forms of communications,
and
the Fourth Amendment applies to modern forms of search,
the Second
Amendment extends, prima facie, to all
instruments that constitute bearable arms, even those that were not in existence
at the time of the founding.
We turn to the phrases "keep arms" and "bear arms." Johnson defined
"keep" as, most relevantly, "[t]o retain; not to lose," and "[t]o have in
custody."
Webster defined it as "[t]o hold; to retain in one's power or
possession." No party has apprised us of an idiomatic meaning of "keep Arms."
Thus, the most natural reading of "keep Arms" in the Second Amendment is to
"have weapons."
The phrase "keep arms" was not prevalent in the written documents of the
founding period that we have found, but there are a few examples, all of which
favor viewing the right to "keep Arms" as an individual right unconnected with
militia service. William Blackstone, for example, wrote that Catholics convicted
of not attending service in the Church of England suffered certain penalties,
one of which was that they were not permitted to "keep arms in their houses."
Petitioners point to militia laws of the founding period that required militia
members to "keep" arms in connection with militia service, and they conclude
from this that the phrase "keep Arms" has a militia-related connotation.
This
is rather like saying that, since there are many statutes that authorize
aggrieved employees to "file complaints" with federal agencies, the phrase "file
complaints" has an employment-related connotation. "Keep arms" was simply a
common way of referring to possessing arms, for militiamen and everyone
else.
At the time of the founding, as now, to "bear" meant to "carry."
When
used with "arms," however, the term has a meaning that refers to carrying for a
particular purpose--confrontation.
Although the phrase implies that the
carrying of the weapon is for the purpose of "offensive or defensive action," it
in no way connotes participation in a structured military
organization.
From our review of founding-era sources, we conclude that this natural
meaning was also the meaning that "bear arms" had in the 18th century. In
numerous instances, "bear arms" was unambiguously used to refer to the carrying
of weapons outside of an organized militia.
It is clear from those
formulations that "bear arms" did not refer only to carrying a weapon in an
organized military unit.
That was also the interpretation of those state
constitutional provisions adopted by pre-Civil War state courts. These
provisions demonstrate--again, in the most analogous linguistic context--that
"bear arms" was not limited to the carrying of arms in a militia.
c. Meaning
of the Operative Clause. Putting all
of these textual elements together, we find that they guarantee the individual
right to possess and carry weapons in case of confrontation. This meaning is
strongly confirmed by the historical background of the Second Amendment. We look
to this because it has always been widely understood that the Second Amendment,
like the First and Fourth Amendments, codified a pre-existing
right. The very text of the Second Amendment implicitly recognizes the
pre-existence of the right and declares only that it "shall not be infringed."
Between the Restoration and the Glorious Revolution, the Stuart Kings
Charles II and James II succeeded in using select militias loyal to them to
suppress political dissidents, in part by disarming their opponents.
Under the
auspices of the 1671 Game Act, for example, the Catholic James II had ordered
general disarmaments of regions home to his Protestant enemies.
These
experiences caused Englishmen to be extremely wary of concentrated military
forces run by the state and to be jealous of their arms. They accordingly
obtained an assurance from William and Mary, in the Declaration of Right (which
was codified as the English Bill of Rights), that Protestants would never be
disarmed: "That the subjects which are Protestants may have arms for their
defense suitable to their conditions and as allowed by law."
This right has
long been understood to be the predecessor to our Second Amendment.
It was
clearly an individual right, having nothing whatever to do with service in a
militia. To be sure, it was an individual right not available to the whole
population, given that it was restricted to Protestants, and like all written
English rights it was held only against the Crown, not Parliament.
But it was
secured to them as individuals, according to "libertarian political principles,"
not as members of a fighting force.
By the time of the founding, the right to have arms had become
fundamental for English subjects.
Blackstone, whose works, we have said,
"constituted the preeminent authority on English law for the founding
generation,"
cited the
arms provision of the Bill of Rights as one of the fundamental rights of
Englishmen.
His description of it cannot possibly be thought to tie it to
militia or military service. It was, he said, "the natural right of resistance
and self-preservation,"
and "the
right of having and using arms for self-preservation and defence."
Other
contemporary authorities concurred.
Thus, the right secured in 1689 as a
result of the Stuarts' abuses was by the time of the founding understood to be
an individual right protecting against both public and private
violence.
And, of course, what the Stuarts had tried to do to their political
enemies, George III had tried to do to the colonists. In the tumultuous decades
of the 1760's and 1770's, the Crown began to disarm the inhabitants of the most
rebellious areas. That provoked polemical reactions by Americans invoking their
rights as Englishmen to keep arms.
They understood the right to enable
individuals to defend themselves. As the most important early American edition
of Blackstone's Commentaries (by the law professor and former Antifederalist St.
George Tucker) made clear in the notes to the description of the arms right,
Americans understood the "right of self-preservation" as permitting a citizen to
"repe[l] force by force" when "the intervention of society in his behalf, may be
too late to prevent an injury."
There seems to us no doubt, on the basis of both text and history, that
the Second Amendment conferred an individual right to keep and bear arms. Of
course the right was not unlimited, just as the First Amendment's right of free
speech was not.
Thus, we do not read the Second Amendment to protect the right
of citizens to carry arms for any sort of
confrontation, just as we do not read the First Amendment to protect the right
of citizens to speak for any purpose.
Before turning to limitations upon the individual right, however, we must
determine whether the prefatory clause of the Second Amendment comports with our
interpretation of the operative clause.
2. Prefatory
Clause.
The prefatory clause reads: "A well
regulated Militia, being necessary to the security of a
a. "Well-Regulated
Militia." In
Petitioners take a seemingly narrower view of the militia, stating that
"[m]ilitias are the state- and congressionally-regulated military forces
described in the Militia Clauses (art. I, §8, cls.
15-16)."
Although we agree with petitioners' interpretive assumption that
"militia" means the same thing in Article I and the Second Amendment, we believe
that petitioners identify the wrong thing, namely, the organized militia. Unlike
armies and navies, which Congress is given the power to create ("to raise ...
Armies"; "to provide ... a Navy," Art. I, §8, cls.
12-13), the militia is assumed by Article I already to be in
existence. Congress is given the power to "provide for calling forth
the militia," §8, cl. 15; and the power not to create, but to "organiz[e]"
it--and not to organize "a" militia, which is what one would expect if the
militia were to be a federal creation, but to organize "the" militia, connoting
a body already in existence.
This is fully consistent with the ordinary
definition of the militia as all able-bodied men. From that pool, Congress has
plenary power to organize the units that will make up an effective fighting
force. That is what Congress did in the first militia Act, which specified that
"each and every free able-bodied white male citizen of the respective states,
resident therein, who is or shall be of the age of eighteen years, and under the
age of forty-five years (except as is herein after excepted) shall severally and
respectively be enrolled in the militia."
To be sure, Congress need not
conscript every able-bodied man into the militia, because nothing in Article I
suggests that in exercising its power to organize,
discipline, and arm the militia, Congress must focus upon the entire body.
Although the militia consists of all able-bodied men, the federally organized
militia may consist of a subset of them.
Finally, the adjective "well-regulated" implies nothing more than the
imposition of proper discipline and training.
b. "Security
of a
There are many reasons why the militia was thought to be "necessary to
the security of a
3. Relationship
between Prefatory Clause and Operative Clause
We reach the question, then: Does the
preface fit with an operative clause that creates an individual right to keep
and bear arms? It fits perfectly, once one knows the history that the founding
generation knew and that we have described above. That history showed that the
way tyrants had eliminated a militia consisting of all the able-bodied men was
not by banning the militia but simply by taking away the people's arms, enabling
a select militia or standing army to suppress political opponents. This is what
had occurred in
The debate with respect to the right to keep and bear arms, as with other
guarantees in the Bill of Rights, was not over whether it was desirable (all
agreed that it was) but over whether it needed to be codified in the
Constitution. During the 1788 ratification debates, the fear that the federal
government would disarm the people in order to impose rule through a standing
army or select militia was pervasive in Antifederalist rhetoric.
Federalists
responded that because Congress was given no power to abridge the ancient right
of individuals to keep and bear arms, such a force could never oppress the
people.
It was understood across the political spectrum that the right helped
to secure the ideal of a citizen militia, which might be necessary to oppose an
oppressive military force if the constitutional order broke
down.
It is therefore entirely sensible that the Second Amendment's prefatory
clause announces the purpose for which the right was codified: to prevent
elimination of the militia. The prefatory clause does not suggest that
preserving the militia was the only reason Americans valued the ancient right;
most undoubtedly thought it even more important for self-defense and hunting.
But the threat that the new Federal Government would destroy the citizens'
militia by taking away their arms was the reason that right--unlike some other
English rights--was codified in a written Constitution. Justice
Breyer's assertion that individual self-defense is merely a
"subsidiary interest" of the right to keep and bear arms
is profoundly
mistaken. He bases that assertion solely upon the prologue--but that can only
show that self-defense had little to do with the right's codification;
it was the central
component of the right itself.
Besides ignoring the historical reality that the Second Amendment was not
intended to lay down a "novel principl[e]" but rather codified a right
"inherited from our English ancestors,"
petitioners' interpretation does not
even achieve the narrower purpose that prompted codification of the right. If,
as they believe, the Second Amendment right is no more than the right to keep
and use weapons as a member of an organized militia,
if, that is, the
organized
militia is the sole institutional beneficiary of the Second Amendment's
guarantee--it does not assure the existence of a "citizens' militia" as a
safeguard against tyranny. For Congress retains plenary
authority to organize the militia, which must include the authority to say who
will belong to the organized force. That is why the first Militia Act's
requirement that only whites enroll caused States to amend their militia laws to
exclude free blacks.
Thus, if petitioners are correct, the Second Amendment
protects citizens' right to use a gun in an organization from which Congress has
plenary authority to exclude them. It guarantees a select militia of the sort
the Stuart kings found useful, but not the people's militia that was the concern
of the founding generation.
B
Our interpretation is confirmed by
analogous arms-bearing rights in state constitutions that preceded and
immediately followed adoption of the Second Amendment. Four States adopted
analogues to the Federal Second Amendment in the period between independence and
the ratification of the Bill of Rights. Two of
them--
We therefore believe that the most likely reading of all
four of these pre-Second Amendment state constitutional provisions is that they
secured an individual right to bear arms for defensive purposes.
Between 1789 and 1820, nine States adopted Second Amendment analogues.
Four of them--
The historical narrative that petitioners must endorse would thus treat
the Federal Second Amendment as an odd outlier, protecting a right unknown in
state constitutions or at English common law, based on little more than an
overreading of the prefatory clause.
C
Justice
Stevens relies on the drafting history of
the Second Amendment--the various proposals in the state conventions and the
debates in Congress. It is dubious to rely on such history to interpret a text
that was widely understood to codify a pre-existing right, rather than to
fashion a new one. But even assuming that this legislative history is relevant,
Justice
Stevens flatly misreads the historical record.
It is true, as Justice
Stevens says, that there was concern that
the Federal Government would abolish the institution of the state militia.
That concern found expression, however, not in the
various Second Amendment precursors proposed in the State conventions, but in
separate structural provisions that would have given the States concurrent and
seemingly nonpre-emptible authority to organize, discipline, and arm the militia
when the Federal Government failed to do so.
The Second Amendment precursors,
by contrast, referred to the individual English right already codified in two
(and probably four) State constitutions. The Federalist-dominated first Congress
chose to reject virtually all major structural revisions favored by the
Antifederalists, including the proposed militia amendments. Rather, it adopted
primarily the popular and uncontroversial (though, in the Federalists' view,
unnecessary) individual-rights amendments. The Second Amendment right,
protecting only individuals' liberty to keep and carry arms, did nothing to
assuage Antifederalists' concerns about federal control of the militia.
Justice
Stevens thinks it significant that the
D
We now address how the Second Amendment
was interpreted from immediately after its ratification through the end of the
19th century. Before proceeding, however, we take issue with Justice
Stevens' equating of these sources with postenactment legislative
history, a comparison that betrays a fundamental misunderstanding of a court's
interpretive task.
"Legislative history," of course, refers to the
pre-enactment statements of those who drafted or voted for a law; it is
considered persuasive by some, not because they reflect the general
understanding of the disputed terms, but because the legislators who heard or
read those statements presumably voted with that understanding.
"Postenactment legislative history,"
a
deprecatory contradiction in terms, refers to statements of those who drafted or
voted for the law that are made after its enactment and hence could have had no
effect on the congressional vote. It most certainly does not refer to the
examination of a variety of legal and other sources to determine the public
understanding of a legal text in the period after its enactment or
ratification. That sort of inquiry is a critical tool of constitutional
interpretation. As we will show, virtually all interpreters of the Second
Amendment in the century after its enactment interpreted the amendment as we
do.
1. Post-ratification
Commentary
Three important founding-era legal
scholars interpreted the Second Amendment in published writings. All three
understood it to protect an individual right unconnected with militia
service.
St. George Tucker's version of Blackstone's Commentaries, as we explained
above, conceived of the Blackstonian arms right as necessary for self-defense.
He equated that right, absent the religious and class-based restrictions, with
the Second Amendment.
In Note D, entitled, "View of the Constitution of the
In 1825, William Rawle, a prominent lawyer who had been a member of the
Pennsylvania Assembly that ratified the Bill of Rights, published an influential
treatise, which analyzed the Second Amendment as follows:
"The first [principle] is a declaration that a well regulated militia is
necessary to the security of a
"The corollary, from the first position is, that
the right of the people to keep and bear arms shall not be
infringed.
"The prohibition is general. No clause in the constitution could by any
rule of construction be conceived to give to congress a power to disarm the
people. Such a flagitious attempt could only be made under some general pretence
by a state legislature. But if in any blind pursuit of inordinate power, either
should attempt it, this amendment may be appealed to as a restraint on both."
Like Tucker, Rawle regarded the English game laws as violating the right
codified in the Second Amendment.
Rawle clearly differentiated between the
people's right to bear arms and their service in a militia: "In a people
permitted and accustomed to bear arms, we have the rudiments of a militia, which
properly consists of armed citizens, divided into military bands, and instructed
at least in part, in the use of arms for the purposes of war."
Rawle
further said that the Second Amendment right ought not "be abused to the
disturbance of the public peace," such as by assembling with other armed
individuals "for an unlawful purpose"--statements that make no sense if the
right does not extend to any
individual purpose.
Joseph Story published his famous Commentaries on the Constitution of the
This comparison to the Declaration of Right would not make sense if the
Second Amendment right was the right to use a gun in a militia, which was
plainly not what the English right protected. As the Tennessee Supreme Court
recognized 38 years after Story wrote his Commentaries, "[t]he passage from
Story, shows clearly that this right was intended ... and was guaranteed to, and
to be exercised and enjoyed by the citizen as such, and not by him as a soldier,
or in defense solely of his political rights."
Story's
Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed
the right as unconnected to militia service.
In addition, in a shorter 1840
work Story wrote: "One of the ordinary modes, by which tyrants accomplish their
purposes without resistance, is, by disarming the people, and making it an
offence to keep arms, and by substituting a regular army in the stead of a
resort to the militia."
Antislavery advocates routinely invoked the right to bear arms for
self-defense. Joel Tiffany, for example, citing Blackstone's description of the
right, wrote that "the right to keep and bear arms,
also implies the right to use them if necessary in self defence; without this
right to use the guaranty would have hardly been worth the paper it consumed."
In his famous Senate speech about the 1856 "Bleeding Kansas" conflict, Charles
Sumner proclaimed:
"The rifle has ever been the companion of the pioneer and, under God, his
tutelary protector against the red man and the beast of the forest. Never was
this efficient weapon more needed in just self-defence, than now in
2. Pre-Civil
War Case Law
The 19th-century cases that interpreted
the Second Amendment universally support an individual right unconnected to
militia service.
Many early 19th-century state cases indicated that the Second Amendment
right to bear arms was an individual right unconnected to militia service,
though subject to certain restrictions.
3. Post-Civil
War Legislation.
In the aftermath of the Civil War,
there was an outpouring of discussion of the Second Amendment in Congress and in
public discourse, as people debated whether and how to secure constitutional
rights for newly free slaves.
Since those discussions took place 75 years
after the ratification of the Second Amendment, they do not provide as much
insight into its original meaning as earlier sources. Yet those born and
educated in the early 19th century faced a widespread effort to limit arms
ownership by a large number of citizens; their understanding of the origins and
continuing significance of the Amendment is instructive.
Blacks were routinely disarmed by Southern States after the Civil War.
Those who opposed these injustices frequently stated that they infringed blacks'
constitutional right to keep and bear arms. Needless to say, the claim was not
that blacks were being prohibited from carrying arms in an organized state
militia. A Report of the Commission of the Freedmen's Bureau in 1866 stated
plainly: "[T]he civil law [of
Congress enacted the Freedmen's Bureau Act on July 16, 1866. Section 14
stated: "[T]he right ... to have full and
equal benefit of all laws and proceedings concerning personal liberty, personal
security, and the acquisition, enjoyment, and disposition of estate, real and
personal, including the constitutional right to bear arms, shall be secured to
and enjoyed by all the citizens ... without respect to race or color, or
previous condition of slavery... . "
The understanding that the Second Amendment gave freed blacks the right
to keep and bear arms was reflected in congressional discussion of the bill,
with even an opponent of it saying that the founding generation "were for every
man bearing his arms about him and keeping them in his house, his castle, for
his own defense."
Similar discussion attended the passage of the Civil Rights Act of 1871
and the Fourteenth Amendment.
It was plainly the understanding in the post-Civil War Congress that the
Second Amendment protected an individual right to use arms for
self-defense.
4. Post-Civil
War Commentators.
Every late-19th-century legal scholar
that we have read interpreted the Second Amendment to secure an individual right
unconnected with militia service. The most famous was the judge and professor
Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional
Limitations. Concerning the Second Amendment it said:
"Among the other defences to personal liberty should be mentioned the
right of the people to keep and bear arms... . The
alternative to a standing army is 'a well-regulated militia,' but this cannot
exist unless the people are trained to bearing arms. How far it is in the power
of the legislature to regulate this right, we shall not undertake to say, as
happily there has been very little occasion to discuss that subject by the
courts."
That Cooley understood the right not as connected to militia service, but
as securing the militia by ensuring a populace familiar with arms, is made even
clearer in his 1880 work, General Principles of Constitutional Law. The Second
Amendment, he said, "was adopted with some modification and enlargement from the
English Bill of Rights of 1688, where it stood as a protest against arbitrary
action of the overturned dynasty in disarming the people."
All other post-Civil War 19th-century sources we have found concurred
with Cooley.
E
We now ask whether any of our
precedents forecloses the conclusions we have reached about the meaning of the
Second Amendment.
United States v. Cruikshank (1875), in
the course of vacating the convictions of members of a white mob for depriving
blacks of their right to keep and bear arms, held that the Second Amendment does
not by its own force apply to anyone other than the Federal Government. The
opinion explained that the right "is not a right granted by the Constitution
[or] in any manner dependent upon that instrument for its existence. The second
amendment ... means no more than that it shall not be
infringed by Congress."
States, we said, were free to restrict or
protect the right under their police powers. The limited discussion of the
Second Amendment in Cruikshank supports, if anything, the
individual-rights interpretation.
We described the right protected by the
Second Amendment as " 'bearing arms for a lawful
purpose' " and said that "the people [must] look for their protection
against any violation by their fellow-citizens of the rights it recognizes" to
the States' police power.
That discussion makes little sense if it is only a
right to bear arms in a state militia.
Presser v.
Justice
Stevens places overwhelming reliance upon this Court's decision in
Nothing so clearly demonstrates the weakness of Justice
Stevens' case. Miller did not
hold that and cannot possibly be read to have held that. The judgment in the
case upheld against a Second Amendment challenge two men's federal convictions
for transporting an unregistered short-barreled shotgun in interstate commerce,
in violation of the National Firearms Act.
It is entirely clear that the
Court's basis for saying that the Second Amendment did not apply was not that the
defendants were "bear[ing] arms" not "for ... military purposes" but for
"nonmilitary use."
Rather, it
was that the type of weapon at issue
was not eligible for Second Amendment protection: "In the absence of
any evidence tending to show that the possession or use of a [short-barreled
shotgun] at this time has some reasonable relationship to the preservation or
efficiency of a well regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an
instrument."
"Certainly," the Court continued, "it is not within
judicial notice that this weapon is any part of the ordinary military equipment
or that its use could contribute to the common defense."
Beyond
that, the opinion provided no explanation of the content of the
right.
This holding is not only consistent with, but positively suggests, that
the Second Amendment confers an individual right to keep and bear arms (though
only arms that "have some reasonable relationship to the preservation or
efficiency of a well regulated militia"). Had the Court believed that the Second
Amendment protects only those serving in the militia,
it would have been odd to examine the character of the weapon rather than simply
note that the two crooks were not militiamen. Justice
Stevens can say again and again that Miller did "not turn
on the difference between muskets and sawed-off shotguns, it turned, rather, on
the basic difference between the military and nonmilitary use and possession of
guns,"
but the
words of the opinion prove otherwise. The most Justice
Stevens can plausibly claim for Miller is that it declined
to decide the nature of the Second Amendment right, despite the Solicitor
General's argument (made in the alternative) that the right was collective.
Miller stands only for the proposition that the Second Amendment right,
whatever its nature, extends only to certain types of
weapons.
It is particularly wrongheaded to read Miller for more
than what it said, because the case did not even purport to be a thorough
examination of the Second Amendment.
We conclude that nothing in our precedents forecloses our adoption of the
original understanding of the Second Amendment. It should be unsurprising that
such a significant matter has been for so long judicially unresolved. For most
of our history, the Bill of Rights was not thought applicable to the States, and
the Federal Government did not significantly regulate the possession of firearms
by law-abiding citizens.
It is demonstrably not true that, as Justice
Stevens claims,
"for most
of our history, the invalidity of Second-Amendment-based objections to firearms
regulations has been well settled and uncontroversial." For most of our history
the question did not present itself.
III
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.
Although we do not undertake an exhaustive historical
analysis today of the full scope of the Second Amendment, 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 and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and
carry arms. Miller said, as we
have explained, that the sorts of weapons protected were those "in common use at
the time."
We think that limitation is fairly supported by the historical
tradition of prohibiting the carrying of "dangerous and unusual weapons."
It may be objected that if weapons that are most useful in military
service--M-16 rifles and the like--may be banned, then the Second Amendment
right is completely detached from the prefatory clause. But as we have said, the
conception of the militia at the time of the Second Amendment's ratification was
the body of all citizens capable of military service, who would bring the sorts
of lawful weapons that they possessed at home to militia duty. It may well be
true today that a militia, to be as effective as militias in the 18th century,
would require sophisticated arms that are highly unusual in society at large.
Indeed, it may be true that no amount of small arms could be useful against
modern-day bombers and tanks. But the fact that modern developments have limited
the degree of fit between the prefatory clause and the protected right cannot
change our interpretation of the right.
IV
We turn finally to the law at issue
here. As we have said, the law totally bans handgun possession in the home. It
also requires that any lawful firearm in the home be disassembled or bound by a
trigger lock at all times, rendering it inoperable.
As the quotations earlier in this opinion demonstrate, the inherent right
of self-defense has been central to the Second Amendment right. The handgun ban
amounts to a prohibition of an entire class of "arms" that is overwhelmingly
chosen by American society for that lawful purpose. The prohibition extends,
moreover, to the home, where the need for defense of self, family, and property
is most acute. Under any of the standards of scrutiny that we have applied to
enumerated constitutional rights, banning from the home
"the most preferred firearm in the nation to 'keep' and use for protection of
one's home and family,"
would fail constitutional muster.
Few laws in the history of our Nation have come close to the severe
restriction of the District's handgun ban. And some of those few have been
struck down.
It is no answer to say, as petitioners do, that it is permissible to ban
the possession of handguns so long as the possession of other firearms
(i.e., long
guns) is allowed. It is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential self-defense weapon.
There are many reasons that a citizen may prefer a handgun for home defense: It
is easier to store in a location that is readily accessible in an emergency; it
cannot easily be redirected or wrestled away by an attacker; it is easier to use
for those without the upper-body strength to lift and aim a long gun; it can be
pointed at a burglar with one hand while the other hand dials the police.
Whatever the reason, handguns are the most popular weapon chosen by Americans
for self-defense in the home, and a complete prohibition of their use is
invalid.
We must also address the District's requirement (as applied to
respondent's handgun) that firearms in the home be rendered and kept inoperable
at all times. This makes it impossible for citizens to use them for the core
lawful purpose of self-defense and is hence unconstitutional. The District
argues that we should interpret this element of the statute to contain an
exception for self-defense.
But we think that is precluded by the unequivocal
text, and by the presence of certain other enumerated exceptions: "Except for
law enforcement personnel ... , each registrant
shall keep any firearm in his possession unloaded and disassembled or bound by a
trigger lock or similar device unless such firearm is kept at his place of
business, or while being used for lawful recreational purposes within the
District of Columbia."
Apart from his challenge to the handgun ban and the trigger-lock
requirement respondent asked the District Court to enjoin petitioners from
enforcing the separate licensing requirement "in such a manner as to forbid the
carrying of a firearm within one's home or possessed land without a license."
The Court of Appeals did not invalidate the licensing requirement, but held only
that the District "may not prevent [a handgun] from being moved throughout one's
house."
It then ordered the District Court to enter summary judgment
"consistent with [respondent's] prayer for relief."
Before this Court petitioners have stated that "if the handgun ban is struck
down and respondent registers a handgun, he could obtain a license, assuming he
is not otherwise disqualified," by which they apparently mean if he is not a
felon and is not insane.
Respondent conceded at oral argument that he does not
"have a problem with ... licensing" and that the District's law is permissible
so long as it is "not enforced in an arbitrary and capricious manner."
We
therefore assume that petitioners' issuance of a license will satisfy
respondent's prayer for relief and do not address the licensing
requirement.
Justice
Breyer has devoted most of his separate dissent to the handgun ban.
He says that, even assuming the Second Amendment is a personal guarantee of the
right to bear arms, the District's prohibition is valid. He first tries to
establish this by founding-era historical precedent, pointing to various
restrictive laws in the colonial period. These demonstrate, in his view, that
the District's law "imposes a burden upon gun owners that seems proportionately
no greater than restrictions in existence at the time the Second Amendment was
adopted."
Of the
laws he cites, only one offers even marginal support for his assertion.
In any
case, we would not stake our interpretation of the Second Amendment upon a
single law, in effect in a single city, that contradicts the overwhelming weight
of other evidence regarding the right to keep and bear arms for defense of the
home. The other laws Justice
Breyer cites are gunpowder-storage laws that he concedes did not
clearly prohibit loaded weapons, but required only that excess gunpowder be kept
in a special container or on the top floor of the home.
Nothing
about those fire-safety laws undermines our analysis; they do not remotely
burden the right of self-defense as much as an absolute ban on handguns. Nor,
correspondingly, does our analysis suggest the invalidity of laws regulating the
storage of firearms to prevent accidents.
Justice
Breyer points to other founding-era laws that he says "restricted
the firing of guns within the city limits to at least some degree" in
A broader point about the laws that Justice
Breyer cites: All of them punished the discharge (or loading) of
guns with a small fine and forfeiture of the weapon (or in a few cases a very
brief stay in the local jail), not with significant criminal penalties. They are
akin to modern penalties for minor public-safety infractions like speeding or
jaywalking. And although such public-safety laws may not contain exceptions for
self-defense, it is inconceivable that the threat of a jaywalking ticket would
deter someone from disregarding a "Do Not Walk" sign in order to flee an
attacker, or that the Government would enforce those laws under such
circumstances. Likewise, we do not think that a law imposing a 5-shilling fine
and forfeiture of the gun would have prevented a person in the founding era from
using a gun to protect himself or his family from violence, or that if he did so
the law would be enforced against him. The District law, by contrast, far from
imposing a minor fine, threatens citizens with a year in prison (five years for
a second violation) for even obtaining a gun in the first place.
Justice
Breyer moves on to make a broad jurisprudential point: He criticizes
us for declining to establish a level of scrutiny for evaluating Second
Amendment restrictions. He proposes, explicitly at least, none of the
traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational
basis), but rather a judge-empowering "interest-balancing inquiry" that "asks
whether the statute burdens a protected interest in a way or to an extent that
is out of proportion to the statute's salutary effects upon other important
governmental interests."
After an
exhaustive discussion of the arguments for and against gun control, Justice
Breyer arrives at his interest-balanced answer: because handgun
violence is a problem, because the law is limited to an urban area, and because
there were somewhat similar restrictions in the founding period (a false
proposition that we have already discussed), the interest-balancing inquiry
results in the constitutionality of the handgun ban.
We know of no other enumerated constitutional right whose core protection
has been subjected to a freestanding "interest-balancing" approach. The very
enumeration of the right takes out of the hands of government--even the Third
Branch of Government--the power to decide on a case-by-case basis whether the
right is really worth
insisting upon. A constitutional guarantee subject to future judges' assessments
of its usefulness is no constitutional guarantee at all. Constitutional rights
are enshrined with the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes) even future judges
think that scope too broad.
The Second Amendment is no different. Like the
First, it is the very product of
an interest-balancing by the people--which Justice Breyer
would now conduct for them anew. And whatever else it leaves to
future evaluation, it surely elevates above all other interests the right of
law-abiding, responsible citizens to use arms in defense of hearth and
home.
Justice
Breyer chides us for leaving so many applications of the right to
keep and bear arms in doubt, and for not providing extensive historical
justification for those regulations of the right that we describe as
permissible.
But since this case represents this Court's first in-depth
examination of the Second Amendment, one should not expect it to clarify the
entire field.
And there will be time enough to expound upon the historical
justifications for the exceptions we have mentioned if and when those exceptions
come before us.
In sum, we hold that the District's ban on handgun possession in the home
violates the Second Amendment, as does its prohibition against rendering any
lawful firearm in the home operable for the purpose of immediate self-defense.
Assuming that Heller is not disqualified from the exercise of Second Amendment
rights, the District must permit him to register his handgun and must issue him
a license to carry it in the home.
* * *
We are aware of the problem of handgun
violence in this country, and we take seriously the concerns raised by the many
amici who
believe that prohibition of handgun ownership is a solution. The Constitution
leaves the
We affirm the judgment of the Court of Appeals.
Justice
Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer
join, dissenting.
The question presented by this case is not whether the Second Amendment
protects a "collective right" or an "individual right." Surely it protects a
right that can be enforced by individuals. But a conclusion that the Second
Amendment protects an individual right does not tell us anything about the scope
of that right.
Guns are used to hunt, for self-defense, to commit crimes, for sporting
activities, and to perform military duties. The Second Amendment plainly does
not protect the right to use a gun to rob a bank; it is equally clear that it
does
encompass the right to use weapons for certain military purposes. Whether it
also protects the right to possess and use guns for nonmilitary purposes like
hunting and personal self-defense is the question presented by this case. The
text of the Amendment, its history, and our decision in
The Second Amendment was adopted to protect the right of the people of
each of the several States to maintain a well-regulated militia. It was a
response to concerns raised during the ratification of the Constitution that the
power of Congress to disarm the state militias and create a national standing
army posed an intolerable threat to the sovereignty of the several States.
Neither the text of the Amendment nor the arguments advanced by its proponents
evidenced the slightest interest in limiting any legislature's authority to
regulate private civilian uses of firearms. Specifically, there is no indication
that the Framers of the Amendment intended to enshrine the common-law right of
self-defense in the Constitution.
In 1934, Congress enacted the National Firearms Act, the first major
federal firearms law. Upholding a conviction under that Act, this Court held
that, "[i]n the absence of any evidence tending to show that possession or use
of a 'shotgun having a barrel of less than eighteen inches in length' at this
time has some reasonable relationship to the preservation or efficiency of a
well regulated militia, we cannot say that the Second Amendment guarantees the
right to keep and bear such an instrument."
The view
of the Amendment we took in Miller--that it
protects the right to keep and bear arms for certain military purposes, but that
it does not curtail the Legislature's power to regulate the nonmilitary use and
ownership of weapons--is both the most natural reading of the Amendment's text
and the interpretation most faithful to the history of its
adoption.
Since our decision in Miller, hundreds
of judges have relied on the view of the Amendment we endorsed there; we
ourselves affirmed it in 1980. See Lewis v.
The opinion the Court announces today fails to identify any new evidence
supporting the view that the Amendment was intended to limit the power of
Congress to regulate civilian uses of weapons. Unable to point to any such
evidence, the Court stakes its holding on a strained and unpersuasive reading of
the Amendment's text; significantly different provisions in the 1689 English
Bill of Rights, and in various 19th-century State Constitutions; postenactment
commentary that was available to the Court when it decided
Miller; and,
ultimately, a feeble attempt to distinguish Miller that places more
emphasis on the Court's decisional process than on the reasoning in the opinion
itself.
Even if the textual and historical arguments on both sides of the issue
were evenly balanced, respect for the well-settled views of all of our
predecessors on this Court, and for the rule of law itself,
would prevent most jurists from endorsing such a dramatic upheaval in
the law.
In this dissent I shall first explain why our decision in
Miller was
faithful to the text of the Second Amendment and the purposes revealed in its
drafting history. I shall then comment on the postratification history of the
Amendment, which makes abundantly clear that the Amendment should not be
interpreted as limiting the authority of Congress to regulate the use or
possession of firearms for purely civilian purposes.
I
The text of the Second Amendment is
brief. It provides: "A well regulated Militia, being necessary to the security
of a
Three portions of that text merit special focus: the introductory
language defining the Amendment's purpose, the class of persons encompassed
within its reach, and the unitary nature of the right that it protects.
The preamble to the Second Amendment
makes three important points. It identifies the preservation of the militia as
the Amendment's purpose; it explains that the militia is necessary to the
security of a
The parallels between the Second Amendment and these state declarations,
and the Second Amendment's omission of any statement of purpose related to the
right to use firearms for hunting or personal self-defense, is especially
striking in light of the fact that the Declarations of Rights of Pennsylvania
and
The preamble thus both sets forth the object of the Amendment and informs
the meaning of the remainder of its text. Such text should not be treated as
mere surplusage, for "[i]t cannot be presumed that any clause in the
constitution is intended to be without effect."
The Court today tries to denigrate the importance of this clause of the
Amendment by beginning its analysis with the Amendment's operative provision and
returning to the preamble merely "to ensure that our reading of the operative
clause is consistent with the announced purpose."
That is
not how this Court ordinarily reads such texts, and it is not how the preamble
would have been viewed at the time the Amendment was adopted. While the Court
makes the novel suggestion that it need only find some "logical connection"
between the preamble and the operative provision, it does acknowledge that a
prefatory clause may resolve an ambiguity in the text.
Without
identifying any language in the text that even mentions civilian uses of
firearms, the Court proceeds to "find" its preferred reading in what is at best
an ambiguous text, and then concludes that its reading is not foreclosed by the
preamble. Perhaps the Court's approach to the text is acceptable advocacy, but
it is surely an unusual approach for judges to follow.
.
The centerpiece of the Court's textual
argument is its insistence that the words "the people" as used in the Second
Amendment must have the same meaning, and protect the same class of individuals,
as when they are used in the First and Fourth Amendments. According to the
Court, in all three provisions--as well as the Constitution's preamble, section
2 of Article I, and the Tenth Amendment--"the term unambiguously refers to all
members of the political community, not an unspecified subset."
But the
Court itself
reads the Second Amendment to protect a "subset" significantly
narrower than the class of persons protected by the First and Fourth Amendments;
when it finally drills down on the substantive meaning of the Second Amendment,
the Court limits the protected class to "law-abiding, responsible citizens."
But the class of persons protected by the First and Fourth Amendments is
not so
limited; for even felons (and presumably irresponsible citizens as well) may
invoke the protections of those constitutional provisions. The Court offers no
way to harmonize its conflicting pronouncements.
The Court also overlooks the significance of the way the Framers used the
phrase "the people" in these constitutional provisions. In the First Amendment,
no words define the class of individuals entitled to speak, to publish, or to
worship; in that Amendment it is only the right peaceably to assemble, and to
petition the Government for a redress of grievances, that is described as a
right of "the people." These rights contemplate collective action. While the
right peaceably to assemble protects the individual rights of those persons
participating in the assembly, its concern is with action engaged in by members
of a group, rather than any single individual. Likewise, although the act of
petitioning the Government is a right that can be exercised by individuals, it
is primarily collective in nature. For if they are to be effective, petitions
must involve groups of individuals acting in concert.
Similarly, the words "the people" in the Second Amendment refer back to
the object announced in the Amendment's preamble. They remind us that it is the
collective action of individuals having a duty to serve in the militia that the
text directly protects and, perhaps more importantly, that the ultimate purpose
of the Amendment was to protect the States' share of the divided sovereignty
created by the Constitution.
As used in the Fourth Amendment, "the people" describes the class of
persons protected from unreasonable searches and seizures by Government
officials. It is true that the Fourth Amendment
describes a right that need not be exercised in any collective sense. But that
observation does not settle the meaning of the phrase "the people" when used in
the Second Amendment. For, as we have seen, the phrase means something quite
different in the Petition and Assembly Clauses of the First Amendment. Although
the abstract definition of the phrase "the people" could carry the same meaning
in the Second Amendment as in the Fourth Amendment, the preamble of the Second
Amendment suggests that the uses of the phrase in the First and Second
Amendments are the same in referring to a collective activity. By way of
contrast, the Fourth Amendment describes a right against
governmental interference rather than an affirmative right to engage in
protected conduct, and so refers to a right to protect a purely individual
interest. As used in the Second Amendment, the words "the people" do not enlarge
the right to keep and bear arms to encompass use or ownership of weapons outside
the context of service in a well-regulated militia.
As a threshold matter, it is worth pausing to note an oddity in the
Court's interpretation of "to keep and bear arms." Unlike the Court of Appeals,
the Court does not read that phrase to create a right to possess arms for
"lawful, private purposes."
Instead,
the Court limits the Amendment's protection to the right "to possess and carry
weapons in case of confrontation."
No party
or amicus
urged this interpretation; the Court appears to have fashioned it
out of whole cloth. But although this novel limitation lacks support in the text
of the Amendment, the Amendment's text does justify
a different limitation: the "right to keep and bear arms" protects only a right
to possess and use firearms in connection with service in a state-organized
militia.
The term "bear arms" is a familiar idiom; when used unadorned by any
additional words, its meaning is "to serve as a soldier, do military service,
fight."
Had the Framers wished to expand the meaning of the phrase "bear arms"
to encompass civilian possession and use, they could have done so by the
addition of phrases such as "for the defense of themselves," as was done in the
Pennsylvania and Vermont Declarations of Rights. The unmodified
use of "bear arms," by contrast, refers most naturally to a military purpose, as
evidenced by its use in literally dozens of contemporary texts. The absence of
any reference to civilian uses of weapons tailors the text of the Amendment to
the purpose identified in its preamble. But when discussing these words, the
Court simply ignores the preamble.
The Court argues that a "qualifying phrase that contradicts the word or
phrase it modifies is unknown this side of the looking glass."
But this
fundamentally fails to grasp the point. The stand-alone phrase "bear arms" most
naturally conveys a military meaning unless the
addition of a qualifying phrase signals that a different meaning is intended.
When, as in this case, there is no such qualifier, the most natural meaning is
the military one; and, in the absence of any qualifier, it is all the more
appropriate to look to the preamble to confirm the natural meaning of the text.
The Court's objection is particularly puzzling in light of its own contention
that the addition of the modifier "against" changes the meaning of "bear arms."
The Amendment's use of the term "keep" in no way contradicts the military
meaning conveyed by the phrase "bear arms" and the Amendment's preamble. To the
contrary, a number of state militia laws in effect at the time of the Second
Amendment's drafting used the term "keep" to describe the requirement that
militia members store their arms at their homes, ready to be used for service
when necessary.
This reading is confirmed by the fact that the clause protects only one
right, rather than two. It does not describe a right "to keep arms" and a
separate right "to bear arms." Rather, the single right that it does describe is
both a duty and a right to have arms available and ready for military service,
and to use them for military purposes when necessary. Different language surely would have been used to protect
nonmilitary use and possession of weapons from regulation if such an intent had
played any role in the drafting of the Amendment.
* * *
When each word in the text is given
full effect, the Amendment is most naturally read to secure to the people a
right to use and possess arms in conjunction with service in a well-regulated
militia. So far as appears, no more than that was contemplated by its drafters
or is encompassed within its terms. Even if the meaning of the text were
genuinely susceptible to more than one interpretation, the burden would remain
on those advocating a departure from the purpose identified in the preamble and
from settled law to come forward with persuasive new arguments or evidence. The
textual analysis offered by respondent and embraced by the Court falls far short
of sustaining that heavy burden. And the Court's emphatic reliance
on the claim "that the Second Amendment ... codified a pre-existing
right,"
is of
course beside the point because the right to keep and bear arms for service in a
state militia was also a pre-existing right.
Indeed, not a word in the constitutional text even arguably supports the
Court's overwrought and novel description of the Second Amendment as
"elevat[ing] above all other interests" "the right of law-abiding, responsible
citizens to use arms in defense of hearth and home."
II
The proper allocation of military power
in the new Nation was an issue of central concern for the Framers. The
compromises they ultimately reached, reflected in Article I's Militia Clauses
and the Second Amendment, represent quintessential examples of the Framers'
"splitting the atom of sovereignty."
Two themes relevant to our current interpretive task ran through the
debates on the original Constitution. "On the one hand, there was a widespread
fear that a national standing Army posed an intolerable threat to individual
liberty and to the sovereignty of the separate States."
On the
other hand, the Framers recognized the dangers inherent in relying on
inadequately trained militia members "as the primary means of providing for the
common defense."
In order to respond to those twin
concerns, a compromise was reached: Congress would be authorized to raise and
support a national Army and Navy, and also to organize, arm, discipline, and
provide for the calling forth of "the Militia."
The President, at the same
time, was empowered as the "Commander in Chief of the Army and Navy of the
But the original Constitution's retention of the militia and its creation
of divided authority over that body did not prove sufficient to allay fears
about the dangers posed by a standing army. For it was perceived by some that
Article I contained a significant gap: While it empowered Congress to organize,
arm, and discipline the militia, it did not prevent Congress from providing for
the militia's disarmament.
As George Mason argued during the debates in
This sentiment was echoed at a number of state ratification conventions;
indeed, it was one of the primary objections to the original Constitution voiced
by its opponents. The Anti-Federalists were ultimately unsuccessful in
persuading state ratification conventions to condition their approval of the
Constitution upon the eventual inclusion of any particular amendment. But a
number of States did propose to the first Federal Congress amendments reflecting
a desire to ensure that the institution of the militia would remain protected
under the new Government. The proposed amendments sent by the States of
Virginia, North Carolina, and New York focused on the importance of preserving
the state militias and reiterated the dangers posed by standing armies.
With all of these sources upon which to draw, it is strikingly
significant that
The history of the adoption of the Amendment thus describes an overriding
concern about the potential threat to state sovereignty that a federal standing
army would pose, and a desire to protect the States' militias as the means by
which to guard against that danger. But state militias could not effectively
check the prospect of a federal standing army so long as Congress retained the
power to disarm them, and so a guarantee against such disarmament was needed. As
we explained in Miller: "With
obvious purpose to assure the continuation and render possible the effectiveness
of such forces the declaration and guarantee of the Second Amendment were made.
It must be interpreted and applied with that end in view."
The evidence
plainly refutes the claim that the Amendment was motivated by the Framers' fears
that Congress might act to regulate any civilian uses of weapons.
III
Although it gives short shrift to the
drafting history of the Second Amendment, the Court dwells at length on four
other sources: the 17th-century English Bill of Rights; Blackstone's
Commentaries on the Laws of England; postenactment commentary on the Second
Amendment; and post-Civil War legislative history. All of these sources shed
only indirect light on the question before us, and in any event offer little
support for the Court's conclusion.
IV
The brilliance of the debates that
resulted in the Second Amendment faded into oblivion during the ensuing years,
for the concerns about Article I's Militia Clauses that generated such pitched
debate during the ratification process and led to the adoption of the Second
Amendment were short lived.
In 1792, the year after the Amendment was ratified, Congress passed a
statute that purported to establish "an Uniform Militia
throughout the
The postratification history of the Second Amendment is strikingly
similar. The Amendment played little role in any legislative debate about the
civilian use of firearms for most of the 19th century, and it made few
appearances in the decisions of this Court. Two 19th-century cases, however,
bear mentioning.
In
Only one other 19th-century case in this Court, Presser v.
"We think it clear that the sections under consideration, which only
forbid bodies of men to associate together as military organizations, or to
drill or parade with arms in cities and towns unless authorized by law, do not
infringe the right of the people to keep and bear arms. But a conclusive answer
to the contention that this amendment prohibits the legislation in question lies
in the fact that the amendment is a limitation only upon the power of Congress
and the National government, and not upon that of the States."
And in discussing the Fourteenth Amendment, the Court
explained:
"The plaintiff in error was not a member of the organized volunteer
militia of the State of
Presser, therefore,
both affirmed Cruikshank's holding
that the Second Amendment posed no obstacle to regulation by state governments,
and suggested that in any event nothing in the Constitution protected the use of
arms outside the context of a militia "authorized by law" and organized by the
State or Federal Government.
The first two federal laws directly restricting civilian use and
possession of firearms--the 1927 Act prohibiting mail delivery of "pistols,
revolvers, and other firearms capable of being concealed on the person,"
and
the 1934 Act prohibiting the possession of sawed-off shotguns and machine
guns--were enacted over minor Second Amendment objections dismissed by the vast
majority of the legislators who participated in the debates. Members of Congress
clashed over the wisdom and efficacy of such laws as crime-control measures. But
since the statutes did not infringe upon the military use or possession of
weapons, for most legislators they did not even raise the specter of possible
conflict with the Second Amendment.
Thus, for most of our history, the invalidity of Second-Amendment-based
objections to firearms regulations has been well settled and uncontroversial.
Indeed, the Second Amendment was not even mentioned in either full House of
Congress during the legislative proceedings that led to the passage of the 1934
Act. Yet enforcement of that law produced the judicial decision that confirmed
the status of the Amendment as limited in reach to military usage. After
reviewing many of the same sources that are discussed at greater length by the
Court today, the
The key to that decision did not, as the Court belatedly suggests,
turn on the difference between muskets and sawed-off shotguns; it turned,
rather, on the basic difference between the military and nonmilitary use and
possession of guns. Indeed, if the Second Amendment were not limited in its
coverage to military uses of weapons, why should the Court in
Miller have
suggested that some weapons but not others were eligible for Second Amendment
protection? If use for self-defense were the relevant standard, why did the
Court not inquire into
the suitability of a particular weapon for
self-defense purposes?
V
The Court concludes its opinion by
declaring that it is not the proper role of this Court to change the meaning of
rights "enshrine[d]" in the Constitution.
But the
right the Court announces was not "enshrined" in the Second Amendment by the
Framers; it is the product of today's law-changing decision. The majority's
exegesis has utterly failed to establish that as a matter of text or history,
"the right of law-abiding, responsible citizens to use arms in defense of hearth
and home" is "elevate[d] above all other interests" by the Second Amendment.
Until today, it has been understood that legislatures may regulate the
civilian use and misuse of firearms so long as they do not interfere with the
preservation of a well-regulated militia. The Court's announcement of a new
constitutional right to own and use firearms for private purposes upsets that
settled understanding, but leaves for future cases the formidable task of
defining the scope of permissible regulations. Today judicial craftsmen have
confidently asserted that a policy choice that denies a "law-abiding,
responsible citize[n]" the right to keep and use weapons in the home for
self-defense is "off the table."
Given the
presumption that most citizens are law abiding, and the reality that the need to
defend oneself may suddenly arise in a host of locations outside the home, I
fear that the District's policy choice may well be just the first of an unknown
number of dominoes to be knocked off the table.
I do not know whether today's decision will increase the labor of federal
judges to the "breaking point" envisioned by Justice Cardozo, but it will surely
give rise to a far more active judicial role in making vitally important
national policy decisions than was envisioned at any time in the 18th, 19th, or
20th centuries.
The Court properly disclaims any interest in evaluating the wisdom of the
specific policy choice challenged in this case, but it fails to pay heed to a
far more important policy choice--the choice made by the Framers themselves. The
Court would have us believe that over 200 years ago, the Framers
made a choice to
limit the tools available to elected officials wishing to regulate civilian uses
of weapons, and to authorize this Court to use the common-law process of
case-by-case judicial lawmaking to define the contours of acceptable gun control
policy. Absent compelling evidence that is nowhere to be found in the Court's
opinion, I could not possibly conclude that the Framers made such a
choice.
For these reasons, I respectfully dissent.
Justice
Breyer, with whom Justice
Stevens, Justice Souter,
and Justice
Ginsburg join, dissenting.
We must decide whether a
The majority's conclusion is wrong for two independent reasons. The first
reason is that set forth by Justice
Stevens--namely, that the Second Amendment protects militia-related,
not self-defense-related, interests. These two interests are sometimes
intertwined. To assure 18th-century citizens that they could keep arms for
militia purposes would necessarily have allowed them to keep arms that they
could have used for self-defense as well. But self-defense alone, detached from
any militia-related objective, is not the Amendment's
concern.
The second independent reason is that the protection the Amendment
provides is not absolute. The Amendment permits government to regulate the
interests that it serves. Thus, irrespective of what those interests
are--whether they do or do not include an independent interest in
self-defense--the majority's view cannot be correct unless it can show that the
District's regulation is unreasonable or inappropriate in Second Amendment
terms. This the majority cannot do.
[T]he District's law is consistent with the
Second Amendment even if that Amendment is interpreted as protecting a wholly
separate interest in individual self-defense. That is so because the District's
regulation, which focuses upon the presence of handguns in high-crime urban
areas, represents a permissible legislative response to a serious, indeed
life-threatening, problem.
Thus I here assume that one objective
of those who wrote the Second
Amendment was to help assure citizens that they would have arms available for
purposes of self-defense. Even so, a legislature could reasonably conclude that
the law will advance goals of great public importance, namely, saving lives,
preventing injury, and reducing crime. The law is tailored to the urban crime
problem in that it is local in scope and thus affects only a geographic area
both limited in size and entirely urban; the law concerns handguns, which are
specially linked to urban gun deaths and injuries, and which are the
overwhelmingly favorite weapon of armed criminals; and at the same time, the law
imposes a burden upon gun owners that seems proportionately no greater than
restrictions in existence at the time the Second Amendment was adopted. In these
circumstances, the District's law falls within the zone that the Second
Amendment leaves open to regulation by legislatures.
Given the purposes for which the Framers enacted the Second Amendment,
how should it be applied to modern-day circumstances that they could not have
anticipated? Assume, for argument's sake, that the Framers did intend the
Amendment to offer a degree of self-defense protection. Does that mean that the
Framers also intended to guarantee a right to possess a loaded gun near swimming
pools, parks, and playgrounds? That they would not have cared about the children
who might pick up a loaded gun on their parents' bedside table? That they
would have lacked concern for the risk of accidental deaths or suicides that
readily accessible loaded handguns in urban areas might bring? Unless we believe
that they intended future generations to ignore such matters, answering
questions such as the questions in this case requires judgment--judicial
judgment exercised within a framework for constitutional analysis that guides
that judgment and which makes its exercise transparent. One cannot answer those
questions by combining inconclusive historical research with judicial ipse dixit.
The argument about method, however, is by far the less important argument
surrounding today's decision. Far more important are the unfortunate
consequences that today's decision is likely to spawn. Not least of these, as I
have said, is the fact that the decision threatens to
throw into doubt the constitutionality of gun laws throughout the
For these reasons, I conclude that the District's measure is a
proportionate, not a disproportionate, response to the compelling concerns that
led the District to adopt it. And, for these reasons as well as the
independently sufficient reasons set forth by Justice
Stevens, I would find the District's measure consistent with the
Second Amendment's demands.
With respect, I dissent.