Thoughts on Heller

The Second Amendment provides that "[a] well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." In District of Columbia v. Heller, the Supreme Court held that the plain language of the Amendment recognizes a personal right, belonging to "the people," to possess firearms. The Court rejected arguments that the Second Amendment simply permits the states to form, arm, and maintain their own militias or the modern National Guard.

Heller arose out of the District's complete ban on possession of usable handguns in the home. In the District, it is a crime to carry an unregistered firearm and the registration of handguns is prohibited. Registered long guns, such as shotguns, are allowed in the home, but they must be unloaded and disassembled or bound by a trigger lock. The result is that citizens of the District have no legal means of defending themselves should an intruder enter their residences. They call 911 and hope a police cruiser is nearby.

Writing the majority opinion, Justice Antonin Scalia traced the origin of the right to bear arms to Great Britain where the eminent jurist William Blackstone described it as "the natural one of resistance and self-preservation." Commentators in the years after ratification of the Second Amendment took a Blackstonian view of this right. St. George Tucker, one of the early Republic’s most renowned constitutional scholars, described the Amendment as "the true palladium of liberty” and acknowledged that “the right of self-defense is the first law of nature."

Going forward in history, Justice Scalia examined post-Civil War state laws that prohibited blacks from owning firearms. Members of Congress and Freedmen’s Bureau officials protested that these laws infringed the federal constitutional "right of the people to keep and bear arms." No one ventured to argue that the state laws were permissible because the Second Amendment did not apply to individuals. The language in 1866 was just as clear as it was in 1791.

Hence, the Heller Court affirmed that the Second Amendment protects individual rights and struck down the District’s total ban on weapons for home defense. The Court also made clear that this right is not unlimited and that its holding should not cast doubt on reasonable restrictions prohibiting felons or the mentally ill from possessing firearms. Regulations prohibiting weapons in government buildings and other sensitive places also remain untouched.

The Supreme Court rightly deserves applause for its fidelity to the Constitution in deciding Heller. The case is perhaps the most significant decision of this century. However, Americans should not forget that this was a 5-4 decision. Four justices of the Supreme Court would have ignored the plain language and historical context of the Amendment. Believing themselves at liberty to rewrite fundamental law, these justices would leave Americans at the mercy of criminals and a future government tyranny.

The Second Amendment is part of the same Bill of Rights that guarantees liberty of the press, the right of assembly, and freedom of religious worship. If a near majority of the Court would attempt to erase the Second Amendment from the Constitution, what is to stop them from taking a cavalier approach to other constitutional rights?

While Americans should rejoice in the victory for individual rights in Heller, they should not forget that four justices of the nation’s highest court would have eradicated the right to bear arms. If only a slight majority of the Court will respect the ancient and fundamental right of resistance and self-preservation, Americans should be concerned about the fate of other liberties enumerated in the Bill of Rights.