DC v. Heller

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Authorship: Lyle Denniston is the primary author of this post and many posts linked to.

Disclosure: The law firm Akin Gump, which sponsors SCOTUSblog, is co-counsel for DC in this case. Lyle Denniston is not affiliated at all with Akin Gump.

Contents

[edit] Briefs and Documents

Docket: 07-290

Argument Transcript

[edit] Certiorari Stage

[edit] Merits Stage

(Via ABA)

Amicus briefs

Supporting Petitioner or Neither Party

Supporting Respondent

[edit] Pre-Argument Preview

Nearly seven decades ago, the Supreme Court analyzed the meaning of these words: “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.” Those are the words of the Second Amendment, written into the Constitution on Dec.15, 1791. The Court has not examined the meaning of those words since the ruling in U.S. v. Miller, on May 15, 1939. The debate over what the Court meant — and over what those words mean — has continued with growing intensity. Until now, the Court had refused repeatedly to resolve the constitutional debate. The case of District of Columbia v. Heller (07-290) is a pure, and outwardly simple, test of the Second Amendment — although there are complications that might limit the scope of any final decision.

[edit] Background

“Guns” - a single word, but one that is powerfully packed with controversy, and with social and political meaning. In America’s culture wars, that word is as capable of stirring up emotions as is the word “abortion” or the simple phrase “gay rights.” Americans have been arguing about access to guns since before they had a national government and a federal Constitution. And their English forebears were at odds over that issue even before the reign of Charles II in the middle 1600s. It is part of the American heritage, and of the American national psyche, to be agitated over guns.

Harvard law professor Mark Tushnet has written that “the fights over the Second Amendment are really about something else…about how we understand ourselves as Americans.” The Supreme Court will not even attempt in District of Columbia v. Heller to supply such an understanding. At most, it will provide only a legal - a constitutional - definition. It has the option of ruling on a grand scale, or on a quite modest one. Whatever it may be able to do — and however divided a final decision might be — that review could shape in a significant way what it means to talk of, or legislate about, “gun rights.”

The 1939 case of U.S. v. Miller was about a double-barrel, 12-gauge shotgun. carried from Claremore, Okla., to Siloam Springs, Ark., by Jack Miller and Frank Layton, apparently in violation of a federal gun registration law. Miller and Layton defended themselves by claiming a Second Amendment right to have the gun. They lost their case in a unanimous Supreme Court decision. The exact meaning of that ruling is still very much in dispute. The new case of District of Columbia v. Heller is about a handgun, a pistol, that Dick Anthony Heller would like to keep in his home in Washington, D.C. He tried to register it with the city, but was turned down — the city has banned the registration, and thus the possession, of all privately owned handguns. Heller, like Jack Miller and Frank Layton, argues that he has a Second Amendment right to have the gun in his home for self-defense; he says he lives in a high-crime neighborhood. Heller, so far, is winning.

The D.C. Circuit Court, dividing 2-1, ruled last March 9 that Dick Heller has a Second Amendment right — an individual, personal right — to have that gun, and to keep it at home, loaded and unlocked. “Once it is determined that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them,” the Circuit Court ruled — the first time that any federal appeals court has relied upon the Second Amendment and an “individual right” theory to strike down any law that seeks to control guns. “We conclude,” the Circuit Court majority said, “that the Second Amendment protects an individual right to keep and bear arms.”

The Court ruled that only Heller, among the six local residents who challenged the handgun ban, had a sufficiently strong interest in the case that he had “standing” to sue.

Washington’s Mayor Adrian M. Fenty and the city government have told the Supreme Court that the city has been regulating handguns “and other dangerous weapons” since 1858. Eighteen months after the nation’s capital city was freed in 1975 to make its own laws (rather than have Congress legislate for it), the City Council passed the gun law that is now before the Supreme Court. That 1976 law, forbidding registration of any gun “originally designed to be fired by use of a single hand,” was the result of what city officials now call “a targeted effort to prevent needless death and injury from that class of weapons.” Handguns, city officials believed then and now, “pose a particularly serious threat to public safety” — both because of the potential for accidents, especially involving children, and the potential for rampant use by criminals.

[edit] Analysis

The federal appeals courts are split on what the Second Amendment means. Moreover, in an unusual twist, the District of Columbia’s own highest court, the local Court of Appeals, disagrees with the D.C. Circuit on the question, so the conflict is vivid in Washington..

One other federal appeals court, the Fifth Circuit Court, has read the Second Amendment to embrace a private, individual right, but it did not go ahead and use that theory to strike down a federal gun control law at issue there. All other federal appeals courts have taken a turn at analyzing the Amendment, and all but one (which did not take a conclusive position) have said that the Amendment only protects the right to have a gun when serving in a state militia or a modern equivalent — such as the National Guard.

It is a somewhat curious fact of the history of the Second Amendment that, unlike most of the other parts of the Bill of Rights, it simply does not apply to state or local laws. Thus, the numerically much greater array of state laws on gun control — such as laws against carrying a concealed gun — are not immediately affected by the Amendment, however it is interpreted.

In a process that began in the late 19th Century, the Court has “incorporated” almost all of the other guaranteed constitutional rights into the scope of the Fourteenth Amendment, thus applying them as limits on state and local government activity. But the Supreme Court has never reconsidered an 1886 decision, in Presser v. Illinois, saying that the Amendment is not binding on the states.

Thus, the jurisprudence of the Second Amendment is almost wholly confined to laws enacted by the federal government. The District of Columbia is something of a governmental curiosity, and that could complicate the Supreme Court’s review of its handgun ban. While the District is considered by Congress to be a state for some purposes, that is not universally the situation. In the Heller case, the D.C. Circuit ruled that the Second Amendment does apply to the District because the city “is a Federal District, ultimately controlled by Congress…The Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District.”

That part of the ruling raises these potential issues: First, is the District, as the seat of the national government, not a “free State” of the kind mentioned in the Second Amendment so the Amendment’s guarantee of access to arms for a state “militia” does not even apply; second, is it a state like all of the regular states and thus, because of the 1886 decision in the Presser case, the Amendment does not apply; and, third, is it a unique federal enclave that — like the rest of the federal government — does have to obey the Second Amendment?

The city's appeal does not dwell at length on any of those issues; it is interested in having an answer on the meaning of the Second Amendment because that is what divides the lower courts, but says that, whatever that meaning turns out to be, it should not outlaw the city’s handgun ban. The challengers to the local law certainly do not want the questions raised; they need to rely on the Amendment to win. Still, the questions are presumably within the Court’s reach if it wants to examine them, because they were addressed in the lower court. Thus, should the Justices find that the Amendment does not even apply, then it would never get to a ruling on what the Second Amendment covers, or on the constitutionality of the city’s handgun ban.

The city also does not contest Dick Heller’s right to have sued over the pistol ban. But that is open to the Court to question, if it wishes.

There is another facet of the case that could produce a decision without a final declaration on what the Second Amendment means. The Court could say that, whatever the outer limits of authority are allowed by the Amendment, it does not forbid “reasonable regulation” of gun possession. That could lead it to focus solely on whether the flat ban on handguns was “reasonable.” That might settle nothing on the issue of whether there is an individual right guaranteed by the Amendment.

And there is still a further complication that could confront the Court: the two sides do not agree on what question should be before the Court on the Second Amendment. The city phrased it as a test of its power under the Amendment to ban pivate possession of handguns “while allowing possession of rifles and shotguns.” That is, comparatively, a narrow question, since it suggests that the city had no intention of totally disarming its citizens.

Because the challengers interpret the D.C. gun law as broader than a ban only on pistols, they have suggested that the Court address a broader question — whether the Second Amendment guarantees a right to have “functional firearms, including handguns.” The city law, they note, requires that any gun being kept at home — including a rifle or shotgun — must be kept disassembled or have a lock on the trigger. The law, they argue, is “a complete prohibition of the possession of all functional firearms” at home. This would take the Court more deeply into the intricacies of the local law; that, of course, may not be a deterrent to the Court’s review. It depends upon how basic the Court wants its inquiry to be.

The cross-appeal by the local residents raising the “standing” issue grew out of a controversy that has continued for more than a decade in the D.C. Circuit. It involves Circuit precedent that limits the right to bring a lawsuit to challenge a law, requiring proof that the challenger faces a specific, personal threat of being prosecuted. This, the residents’ appeal argues, allows government officials to avoid review of a potentially invalid law simply by not issuing threats of prosecution. The key precedents, perhaps by coincidence, have come in earlier attempts to challenge federal or D.C. gun control laws — including, as it happens, an earlier, failed attempt to challenge the same handgun ban at issue now.

As a result of the “standing” doctrine against pre-enforcement challenges, the residents’ appeal asserted, officials can talk broadly about how rigorously they will enforce a law, and yet avert a challenge simply by not arresting or actually prosecuting those who seek to sue. That puts a “large class of cases” beyond judicial review, the appeal argued. “In demanding individualized threats of prosecution, a pre-enforcement challenge is virtually always too early,” it said.

The city opposed Supreme Court review of this issue. As recently as January 2006, the Supreme Court refused to review one of the D.C. Circuit’s precedents on the “standing” issue in a case involving the same law at issue now.

[edit] Other filings

The Heller case almost certainly will draw a wide array of amici filings. At this stage, the list is short. Four states, however, have sought to make the stakes seem higher even though the Second Amendment does not now apply to limit state and local gun control laws. The D.C. Circuit decision, those states argued, “has the potential to influence judicial interpretation of both the Second Amendment and state constitutional provisions.” They urged the Court to reject the appeals court’s rationale, and to reaffirm the “states’ traditional authority to protect public safety through the exercise of the police power to restrict access to certain types of firearms.”

A group of children’s rights organizations supported the city’s appeal, arguing that handguns pose a particular threat to “children’s physical and mental health.” Gun-related injuries, those groups contended, have a major impact on the nation’s public health system.

A conservative advocacy group, the American Civil Rights Union, urged the Justices to uphold the ruling against the city’s handgun ban. That group also questioned the city’s claim that the handgun ban has helped control crime.

[edit] Merits Briefs

One point emerges with utmost clarity in the large file of written arguments in this case: consensus is so totally lacking on all of the major issues that the Justices essentially will be on their own in interpreting the core meaning of the Second Amendment. The choices are presented as either/or, with little or no nuance or subtlety. The lengthy merits briefs of the two parties, plus 67 friend-of-Court briefs, run in totally opposite directions on what the Founding parents had in mind in writing the Amendment, on the application of the Amendment to the District of Columbia (and, impliedly, to the states), on the social science findings about whether gun control reduces violence, and on the constitutional meaning – if there is any – in Congress’ frequent adoption of gun control laws.

Of course, popular and academic views about the Second Amendment have been polarized for decades, but the stark display of such complete opposites in legal reasoning – expressed in a single case – may well make the Court’s task more difficult. From the briefs, it would seem that the Court, having not ruled on a Second Amendment case in almost 69 years (and, even then, having ruled somewhat uncertainly), is being urged to make the grandest of constitutional pronouncements at the first real opportunity, Where in that fundamental disagreement does a Court find room for compromise sufficient to gather five votes – unless it would be to bypass all of the big issues, and settle for something that would decide only the constitutional status of that governmental novelty, the District of Columbia? That, of course, is the alternative issue that the District government and its mayor put forth in their brief, arguing that the Amendment simply does not apply in the federal city; that might be the narrowest issue that a Court somewhat inclined toward minimalist rulings could find in the case (unless it could generate a “standing” issue, which is not contested). To be sure, the District’s status, too, is vigorously contested.

The core issue – what is the nature of the “right” that the Second Amendment recognizes, and thus what was intended by the Amendment’s authors – is the most disputed point, as was expected. The city government ties gun possession rights solely to a military context; the challengers to the D.C. handgun ban tie it to personal liberty, as with other parts of the Bill of Rights. The arguments on this point in the two main briefs are lengthier, especially in their treatment of early American history, but the substantive dispute is no different than at the petition stage. (For a fuller discussion of the uses of history in the written arguments in this case, click here.)

Even if the Court should opt for an individual, private right to have guns, the two main briefs divide on how to judge when such a right were violated by a gun control law. The city government backs a reasonableness standard, the gun rights challengers favor “strict scrutiny.” And, it is no surprise, applying the standards that each advances would determine the fate of the handgun ban in the District.

About the only point on which there appears to be at least surface agreement between the two main contestants is that the Court does not have before it, in this case, any question of whether the Second Amendment applies to the states (through “incorporation” into the Fourteenth Amendment’s due process clause). But there are implications that might affect that issue, sooner or later, in both of the main briefs: the city, given its view of the purpose of the Amendment, suggests it was designed to protect the states not to “constrain [their] prerogatives”, while the challengers’ expansive view of the private, individual right could not easily be limited to a right running against the federal government alone.

The amici filings in the case (19 for the District, 47 for the challengers to the handgun ban, and one for the federal government purportedly not taking sides) not only echo the foundational disagreement on display in the parties’ briefs, but extend it considerably. There has been much focus on the Justice Department brief – including a recent newspaper column (apparently from inside the White House) suggesting that the government may abandon some key parts of it at the oral argument. Disturbed by the Solicitor General’s refusal to back them down the line, the challengers to the D.C. law list the Department brief on their website as supporting the District. Solicitor General Paul D. Clement urged the Court to find an individual right to privately possess handguns for self-defense in the home, but also suggested that the D.C. Circuit Court was wrong in using a hard-and-fast rule and should be told to reconsider, using a more flexible standard. There is much in the amici filings that expresses the outrage of the gun rights community to the Solicitor General’s position. The D.C. challengers are mild, by comparison, in their response to the Solicitor General, leaving the harsher judgments to amici – especially the adjective-filled brief of the Goldwater Institute, a conservative research and advocacy group (accusing the government, for example, of an “uncomfortable straddle” and of advancing arguments that fail both on principle and logic or that rise from “flawed premises").

The other amicus filing that has drawn considerable notice is one by Vice President Cheney, in his role as presiding officer of the Senate, along with a majority of the members of each the House and the Senate. That brief explicitly endorses the Circuit Court ruling, thus advocating a nullification of the handgun ban. (The brief was written by Fairfax, Va., attorney Stephen P. Halbrook, who for years has been writing tracts advocating the individual rights view of the Second Amendment.) One of the main thrusts of that brief is that the history of Congress’ legislation on gun regulation shows a clear pattern of favoring the individual rights view. Naturally, that interpretation of the congressional activity is directly disputed by a brief filed by 18 current Democratic members of the House. That brief suggests that Congress has not felt constrained by the Second Amendment in enacting a wide array of gun control laws.

Among the amici filings are dueling arguments, on each side of the issue, from former high-ranking officials of the Justice Department. There are directly contradictory interpretations of the impact of gun control on violence. There are pro and con arguments on whether guns cause, or prevent, more violence against women, gays, racial and religious minorities, the elderly, and the disabled. There are totally contradictory interpretations of the Court’s 1939 and 19th Century rulings on the Second Amendment – and dueling interpretations of whether the current Court should feel bound, under a theory of stare decisis, by any of those rulings. The state governments, and prosecuting attorneys, also line up on both sides, with differing views on the impact that a ruling in the D.C. case will have on state power to pass gun-regulating laws.

[edit] Oral Argument

[edit] Argument Recap

The following is by Lyle Denniston and originally appeared on SCOTUSblog.com.

The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear in the hearing on District of Columbia v. Heller (07-290) was what kind of gun that would entail, and thus what kind of limitations government could put on access or use of a weapon. In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.

With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun — provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.

One of the most important aspects of the 98-minute hearing was the steadfast commitment that the federal government’s lawyer, Solicitor General Paul D. Clement, held to the position he had expressed in a brief that has come under heavy fire from inside the White House and from a wide swath of the gun-owning community. Clement had written that, while there should be an individual, private right to have a gun in one’s home, it should be subject to regulation by government that would not have to meet the strictest constitutional test. At the podium, he several times repeated his criticism of the D.C. Circuit Court for raising a higher constitutional bar to gun regulation — even though his critics (including Vice President Cheney) passionately support exactly what the Circuit Court did in striking down the District of Columbia’s 1976 ban on any private ownership or use of handguns.

If the Court were ultimately to rule that the Second Amendment’s promise of a “right to keep and bear arms” embraces a personal, individual right of self-defense at least in one’s home, it might also have to address what, if any, limits government might put on that right, and what constitutional standard to use in judging whether a particular law’s limitations would be valid. Thus, it was no surprise that many of the exchanges on Tuesday dwelled on both of those issues, with no sign of anything close to a consensus on the answers.

The Chief Justice, signaling that he would like to pare down the task the Court faces in deciding the case, told the Solicitor General: “I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine who…this restriction and the scope of this right looks in relation to those? I’m not sure why we have to articulate some very intricate standard.”

Clement said it “would be an improvement over the court of appeals” if the Court were to decide the case “very narrowly.” Again, as in his written brief, Clement voiced concern that the Circuit Court ruling might be understood to give individuals a right to have even a machinegun.

The Chief Justice, focusing on what he called the “absolute ban” in the District’s law, countered that the city was not restricting machineguns so “why would you think the opinion striking down an absolute ban would also apply to a narrow one…directly solely to machine guns?” The Solicitor General countered that the government needed to worry about the implication of a strict Second Amendment limit on the gun right because of the possible changes in gun technology in the future, bringing new weapons under the Amendment’s protection.

Because the current members of the Court had never taken part in a case testing the scope of the right laid out in the Second Amendment, it was not clear, going into the argument, where any of them (with the possible exception of Justices Scalia and Thomas) would stand on the question. But the Chief Justice, Justice Kennedy and Justice Scalia moved in, in the very earliest stages of the argument, to lay out clear positions — at least on the collective vs. individual rights dispute.

Within seconds after the defender of the District law, Washington lawyer Walter Dellinger, laid out his general theory that the Amendment only guaranteed a “militia-related” right, the Chief Justice focused on the text of the Amendment and said “If it is limited to state militias, why would they say ‘the right of the people. In other words, why wouldn’t they say ’state militias have the right to keep arms.’”

Kennedy soon joined in, saying the reference in the Amendment to the arms needs of the militia was simply a reaffirmation of the importance of having a militia (as guaranteed by other provisions in the Constitution), but then the Framers went further an added an entirely separate right, “a right to bear arms.” Scalia shortly got involved, saying “why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past…by taking away the people’s weapons…the two clauses go together beautifully: Since we need a militia, the right to keep and bear arms shall not be infringed.”

As the hearing moved on, it became more apparent that the kind of right Kennedy was supporting was one keyed entirely to the home, and its defense against intruders — beginning with people in the Founding era who lived in the wilderness, and had to fend off, say, Indians. He referred to “the remote settler” seeking to “defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” And it also became clear that, in modern times, with high crime rates, individuals in their homes needed a dependable means of defense against urban intruders.

It took a little more time for Justice Alito to take part in the exchanges. When he did, he definitely seemed on the individual rights side of the debate. In fact, when Clement was at the podium, Alito commented: “How could the District code provision survive any standard of review whee they totally ban the possession of the type of weapon that’s most commonly used for self-defense…?”

The ideological dividing line among the Justices that is often apparent in major constitutional cases reemerged in this one. Dellinger, in defending the city’s version of the Amendment’s meaning, had to fend off tough and sometimes hostile questions from the conservatives, while the lawyer speaking for the challengers — Alexandria VA attorney Alan Gura — was met with sometimes aggressive questioning from the liberals and moderates.

Justice John Paul Stevens, the leader of the moderate/liberal bloc, repeatedly returned to the notion that, at the time the Second Amendment was written in the Founding era, only two states’ constitutions embraced an individual right to have a gun for self-defense. The other members of that bloc, including Justice Breyer, spent much of their time pressing for clarity on whether a ban on handguns would actually interfere with a right of self-defense, since they suggested — as does the city government — that the city has no objection to maintaining a useable rifle or shotgun within the home. But Gura regularly countered that argument with his interpretation that, aside from the handgun ban, the District law’s requirements of disassembly or locked triggers on rifles and shotguns in the home would deprive the residents of having any functional firearm.

Gura, as he went along, made some concessions that seemed less than supportive of his basic argument. He got into a difficult exchange with Justice Stevens, for example, over his agreement that the militia language in the Second Amendment did have some role to play in defining the right. As soon as he offered that agreement, the Chief Justice pounced, suggesting that it would limit gun rights of people who had nothing to do with the military but who may have a need for a gun. Justice Kennedy came to Gura’s rescue, suggesting that the militia language was put there simply to reaffirm the Constitution’s allocation elsewhere of power over the militia.

And Kennedy moved in to nail down his basic view of the Amendment, saying to Gura: “I want to know whether or not, in your view,the operative clause of he amendment protects, was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?” Gura readily replied: “Oh, yes.”

Breyer also made use of Gura’s time at the podium to shore up the Justice’s apparent embrace of the concept that, if there is a personal right, it should be subjected to “reasonable regulation.” A ban on handguns, Breyer indicated, might meet that test, if an individual had a right to use other weapons.

Justices Ruth Bader Ginsburg and David H. Souter, while less active than their colleagues, were quite clearly on the District of Columbia’s side.

The argument, taken as a whole, revealed a Court ready — perhaps somewhat eager — to confront and decide the core question of the Second Amendment’s meaning. No one on the Court seemed interested in the District of Columbia’s backuip argument — that the Second Amendment simply does not apply to the District as the federal capital city. There also was no interest in an issue that is only implicitly involved: whether, if there is an individual right, it would be applied to state and local governments, too, through incorporation into the Fourteenth Amendment’s protection of due process against state action.

[edit] "LiveBlog"

On March 18, 2008, SCOTUSblog "LiveBlogged" the case based on the audio feed from C-SPAN. To replay the LiveBlog, see this post.

[edit] Links and further information

[edit] Press

Decision Related Press

  • All argument day coverage can be accessed through this SCOTUSblog post.

[edit] Blogosphere

* Decision Related Posts

  • All argument day coverage can be accessed through this SCOTUSblog post.

[edit] SCOTUSblog

  • SCOTUSblog's "Blog Round-Up" on 11/21 is here.
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