District of Columbia v. Heller: Difference between revisions

District of Columbia v. Heller
District of Columbia v. Heller
	Supreme Court of the United States
Argued March 18, 2008; Decided June 26, 2008
Full case name	District of Columbia, et al. v. Dick Anthony Heller
Docket no.	07-290
Argument	Oral argument
Case history
Prior	Provisions of the Firearms Control Regulations Act of 1975 infringe an individual's right to bear arms as protected by the Second Amendment. District Court for the District of Columbia reversed.
Procedural	Writ of Certiorari to the U.S. Court of Appeals for the District of Columbia Circuit
Holding
	The Second Amendment guarantees an individual's 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. United States Court of Appeals for the District of Columbia Circuit affirmed.
Court membership
	Chief Justice John Roberts Associate Justices John P. Stevens · Antonin Scalia; Anthony Kennedy · David Souter; Clarence Thomas · Ruth Bader Ginsburg; Stephen Breyer · Samuel Alito
Case opinions
Majority	Scalia, joined by Roberts, Kennedy, Thomas, Alito
Dissent	Stevens, joined by Souter, Ginsburg, Breyer
Dissent	Breyer, joined by Stevens, Souter, Ginsburg
Laws applied
	U.S. Const. amend. II; D.C. Code §§ 7-2502.02(a)(4), 22-4504, 7-2507.02

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District of Columbia v. Heller, 554 U.S. ___ (2008) is a landmark legal case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for private use in federal enclaves. A ruling on states has yet to be made. It is the first Supreme Court case in United States history to directly address whether the right to keep and bear arms is a right of individuals in addition to a collective right that applies to state-regulated militias^[1].

On June 27, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Parker v. District of Columbia^[2]^[3]. The Court of Appeals had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are "arms" for the purposes of the Second Amendment, found that the District of Columbia's regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock."

Background

In 2002, Robert A. Levy, a Senior Fellow at the Cato Institute, began vetting plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. Although he himself had never owned a gun, as a Constitutional scholar he had an academic interest in the subject and wanted to model his campaign after the legal strategies of Thurgood Marshall, who had successfully led the challenges that overturned school segregation.^[4] They aimed for a group that would be diverse in terms of age, race, and economic background. They eventually picked Shelly Parker, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, George Lyon, and Dick Heller. Before the case, Levy knew only Tom Palmer, a colleague from the Cato Institute; none of the six knew each other.^[5]

Previous federal caselaw pertaining to the question of an individual's right to bear arms included United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) which supported the right and Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) which opposed the right. The Supreme Court ruling in United States v. Miller, 307 U.S. 174 (1939) was interpreted to support both sides of the issue.

District Court

In February 2003, the six residents of Washington, D.C. filed a lawsuit in the District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law (part of the District of Columbia Code) enacted pursuant to District of Columbia home rule. This law restricted residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock."^[6] The District Court dismissed the lawsuit.

Court of Appeals

On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal in a 2-1 decision. The Court of Appeals struck down provisions of the Firearms Control Regulations Act as unconstitutional. Judges Karen L. Henderson, Thomas B. Griffith and Laurence H. Silberman formed the Court of Appeals panel, with Senior Circuit Judge Silberman writing the court's opinion and Circuit Judge Henderson dissenting.

The court's opinion first addressed whether appellants have standing to sue for declaratory and injunctive relief in section II (slip op. at 5–12). The court concluded that of the six plaintiffs, only Heller — who applied for a handgun permit but was denied — had standing.

The court then held that the Second Amendment "protects an individual right to keep and bear arms", saying that the right was "premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad)." They also noted that though the right to bear arms also helped preserve the citizen militia, "the activities [the Amendment] protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia." The court determined that handguns are "Arms" and concluded that thus they may not be banned by the District of Columbia; however, they said that Second Amendment rights are subject to reasonable restrictions.

The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The District argued that there is an implicit self-defense exception to these provisions, but the D.C. Circuit rejected this view, saying that the requirement amounted to a complete ban on functional firearms and prohibition on use for self-defense:^[7]

Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.

Henderson's dissent

In her dissent, Circuit Judge Henderson stated that Second Amendment rights did not extend to residents of Washington D.C., writing:

To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under United States v. Miller, 307 U.S. at 178, the Second Amendment's declaration and guarantee that "the right of the people to keep and bear Arms, shall not be infringed" relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.^[8]

Petition for rehearing

In April 2007, the District and Mayor Adrian Fenty petitioned for rehearing en banc, arguing that the ruling creates inter- and intra-jurisdictional conflict.^[9] On May 8, the Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote.

Supreme Court

The defendants petitioned the United States Supreme Court to hear the case. The plaintiffs did not oppose but, in fact, welcomed the petition. The Supreme Court agreed to hear the case on November 20, 2007.^[10] The court rephrased the question to be decided as follows:

The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

This represented the first time since the 1939 case United States v. Miller that the Supreme Court had directly addressed the scope of the Second Amendment.^[11]

Amicus curiae briefs

Because of the controversial nature of the case, it garnered much attention from many groups on both sides of the gun rights issue. Many of those groups filed amicus curiae (friend of the court) briefs, about 47 urging the court to affirm the case and about 20 to remand it.^[12]

A majority of the members of Congress^[13] signed the brief authored by Stephen P. Halbrook advising that the case be affirmed overturning the ban on handguns not otherwise restricted by Congress.^[14] Vice President Dick Cheney joined in this brief, acting in his role as President of the United States Senate, and breaking with the George W. Bush administration's official position.^[13] Then Republican candidate for President and Arizona Senator John McCain also signed the brief. Democratic candidate and Illinois Senator Barack Obama did not.^[15]

A majority of the states signed the brief of Texas Attorney General Greg Abbott advising that the case be affirmed, while at the same time emphasizing that the states have a strong interest in maintaining each of the states' laws prohibiting and regulating firearms.^[16]^[17]^[18] Law enforcement organizations, including the Fraternal Order of Police and the Southern States Police Benevolent Association, also filed a brief urging that the case be affirmed. ^[19]

A number of organizations signed friend of the court briefs advising that the case be remanded, including the United States Department of Justice^[20] and Attorneys General of New York, Hawaii, Maryland, Massachusetts, New Jersey, and Puerto Rico.^[21] Additionally, friend of the court briefs to remand were filed by a spectrum of religious and anti-violence groups,^[22] a number of cities and mayors,^[23] and many police chiefs and law enforcement organizations.^[24]

Oral arguments

The Supreme Court heard oral arguments in the case on March 18, 2008. Both the transcript^[25] and the audio^[26] of the argument have been released. Each side was initially allotted 30 minutes to argue its case, with U.S. Solicitor General Paul D. Clement allotted 15 minutes to present the federal government's views.^[27] During the argument, however, extra time was extended to the parties, and the argument ran 23 minutes over the allotted time.^[28]

Walter E. Dellinger of the iyyiy O'Melveny & Myers, also a professor at Duke University Law School and former Acting Solicitor General, argued the District's side before the Supreme Court. Dellinger was assisted by Thomas Goldstein of Akin Gump Strauss Hauer & Feld, Robert Long of Covington & Burling and D.C. Solicitor General Todd Kim. The law firms assisting the District worked pro bono.^[29]

Alan Gura, of the D.C.-based law firm Gura & Possessky, was lead counsel for Heller, and argued on his behalf before the Supreme Court.^[30] Robert Levy, a senior fellow at the Cato Institute, and Clark Neily, a senior attorney at the Institute for Justice, were his co-counsel.^[31]^[32]

Decision

On June 26, 2008, by a 5 to 4 decision, the Supreme Court upheld the federal appeals court ruling, striking down the D.C. gun law. Justice Antonin Scalia, writing for the majority, stated, "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 ... We affirm the judgment of the Court of Appeals."^[33] This ruling upholds the first federal appeals court ruling ever to void a law on Second Amendment grounds.^[34]

The Court based its reasoning on the grounds:

that the operative clause of the Second Amendment—"the right of the people to keep and bear Arms, shall not be infringed"—is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny, based on the bare meaning of the words, the usage of "the people" elsewhere in the Constitution, and historical materials on the clause's original public meaning;
that the prefatory clause, which announces a purpose of a "well regulated Militia, being necessary to the security of a free State", comports with, but does not detract from, the meaning of the operative clause and refers to a well-trained citizen militia, which "comprised all males physically capable of acting in concert for the common defense", as being necessary to the security of a free polity;
that historical materials support this interpretation, including "analogous arms-bearing rights in state constitutions" at the time, the drafting history of the Second Amendment, and interpretation of the Second Amendment "by scholars, courts, and legislators" through the late nineteenth century;
that none of the Supreme Court's precedents forecloses the Court's interpretation, specifically United States v. Cruikshank (1875), Presser v. Illinois (1886), nor United States v. Miller (1939).

However, "[l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." The Court's opinion, although refraining from an exhaustive analysis of the full scope of the right, "should not 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."

Therefore, the District of Columbia's handgun ban is unconstitutional, as it "amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense". Similarly, the requirement that any firearm in the home be disassembled or bound by a trigger lock is unconstitutional, as it "makes it impossible for citizens to use arms for the core lawful purpose of self-defense".

The opinion of the court, delivered by Justice Scalia, was joined by Chief Justice John G. Roberts, Jr. and by Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

Issues addressed by the majority

The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.

The Scalia majority invokes much historical material to support its finding that the right to keep and bear arms belongs to individuals; more precisely, Scalia asserts in the Court's opinion that the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: "'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings...."

With that finding as anchor, the Court ruled a total ban on operative handguns in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment—a purpose not previously articulated by the Court—and the "in common use at the time" prong of the Miller decision: since handguns are in common use, their ownership is protected.

The Court applies as remedy that "[a]ssuming 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." The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: "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.' Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."

In regard to the scope of the right, the Court wrote, in a obiter dictum, "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."^[35]

The Court also added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the "in common use at the time" prong of the Miller decision, which by itself protects handguns, over the first prong (protecting arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"), which may not by itself protect machine guns: "It may be objected that if weapons that are most useful in military service—M16 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."^[36]

The Court did not address which level of judicial review should be used by lower courts in deciding future cases claiming infringement of the right to keep and bear arms: "[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field." The Court states, "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."^[37] Also, regarding Justice Breyer's proposal of a "judge-empowering 'interest-balancing inquiry,'" the Court states, "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach."^[38]

Dissenting opinions

In a dissenting opinion, Justice John Paul Stevens stated that the court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent, and that the court had "bestowed a dramatic upheaval in the law".^[39] Stevens also stated that the amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense" which was present in the Declarations of Rights of Pennsylvania and Vermont.^[39]

The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, "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.... I could not possibly conclude that the Framers made such a choice."

Justice Stevens' dissent was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Justice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia's handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.

The Breyer dissent looks to early municipal fire-safety laws that forbade the storage of gunpowder (and in Boston the carrying of loaded arms into certain buildings), and on nuisance laws providing fines or loss of firearm for imprudent usage, as demonstrating the Second Amendment has been understood to have no impact on the regulation of civilian firearms. The dissent argues the public safety necessity of gun-control laws, quoting that "guns were 'responsible for 69 deaths in this country each day.'"

With these two supports, the Breyer dissent goes on to conclude, "there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." It proposes that firearms laws be reviewed by balancing the interests (i.e., "'interest-balancing' approach") of Second Amendment protections against the government's compelling interest of preventing crime.

The Breyer dissent also objected to the "common use" distinction used by the majority to distinguish handguns from machineguns: "But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun...There is no basis for believing that the Framers intended such circular reasoning."^[40] (Other commentators have agreed with Breyer's criticism, but argued that the Court therefore erred in not overturning current machinegun restrictions.^[41]^[42])

Non-party involvement

The case involved groups for and against expanded gun rights. The National Rifle Association (NRA) was initially not supportive of the case because it feared it might not be successful. The NRA later reconciled with the plaintiffs. The Brady Campaign to Prevent Gun Violence lobbied to have D.C. gun laws changed so the case would be moot and not eligible to be heard by the Supreme Court.

National Rifle Association

Attorney Alan Gura, in a 2003 filing, used the term "sham litigation" to describe the NRA's attempts to have Parker (aka Heller) consolidated with its own case challenging the D.C. law. Gura also stated that "the NRA was adamant about not wanting the Supreme Court to hear the case".^[43] These concerns were based on NRA lawyers' assessment that the justices at the time the case was filed might reach an unfavorable decision.^[44] Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, has stated that the Parker plaintiffs "faced repeated attempts by the NRA to derail the litigation."^[45] He also stated that "The N.R.A.’s interference in this process set us back and almost killed the case. It was a very acrimonious relationship." ^[46]

Wayne LaPierre, the NRA's chief executive officer, confirmed the NRA's misgivings. "There was a real dispute on our side among the constitutional scholars about whether there was a majority of justices on the Supreme Court who would support the Constitution as written," Mr. LaPierre said. Both Levy and LaPierre said the NRA and Mr. Levy's team were now on good terms.^[47]

Elaine McArdle wrote in the Harvard Law Bulletin: "If Parker is the long-awaited "clean" case, one reason may be that proponents of the individual-rights view of the Second Amendment—including the National Rifle Association, which filed an amicus brief in the case—have learned from earlier defeats, and crafted strategies to maximize the chances of Supreme Court review." The NRA did eventually support the litigation by filing an amicus brief with the Court arguing that the plaintiffs in Parker had standing to sue and that the D.C. ban was unconstitutional under the Second Amendment.^[48]

Chris Cox, executive director of the NRA's Institute for Legislative Action, had indicated support of federal legislation which would repeal the D.C. gun ban. Opponents of the legislation argued that this would have rendered the Parker case moot, and would have effectively eliminated the possibility that the case would be heard by the Supreme Court.^[49]

Immediately after the Supreme Court's ruling, the NRA filed a lawsuit against the city of Chicago over its handgun ban, followed the next day by a lawsuit against the city of San Francisco over its ban of handguns in public housing.^[50]

Brady Campaign to Prevent Gun Violence

The Brady Campaign to Prevent Gun Violence opposed the arguments made by the plaintiffs in Parker, and filed amicus curiae against those arguments in both the District and Circuit courts.

Paul Helmke, the president of the Brady Campaign, suggested to D.C. before the Court granted certiorari that it modify its gun laws rather than appeal to the Supreme Court.^[51] Helmke has written that if the Supreme Court upholds the Circuit court ruling, it "could lead to all current and proposed firearms laws being called into question."^[52]

After the ruling, Paul Helmke stated that, "the classic ‘slippery slope’ argument", "that even modest gun control would lead down the path to a complete ban on gun ownership", "is now gone." Helmke added that, "The Court also rejected the absolutist misreading of the Second Amendment that some use to argue ‘any gun, any time for anyone,’ which many politicians have used as an excuse to do nothing about the scourge of gun violence in our country and to block passage of common sense gun laws." ^[53]

Reactions

Various experts expressed opinions on the D.C. Circuit's decision.

Harvard Law School professor Laurence Tribe contended that the Second Amendment protects an individual right, and predicted that if Parker is reviewed by the Supreme Court "there's a really quite decent chance that it will be affirmed."^[48] However, Professor Tribe has also argued that the District's ban on one class of weapons does not violate the Second Amendment even under an individual rights view.^[54] The Court held that banning the class "handguns" violated the Second Amendment.

John C. Eastman, Associate Dean of Chapman University's School of Law and director of the Claremont Institute's Center for Constitutional Jurisprudence, asserts that "the Second Amendment, like its sister amendments, does not confer a right but rather recognizes a natural right inherent in our humanity."^[55]

Erwin Chemerinsky, then of Duke Law School and now dean of the University of California, Irvine School of Law, argued that the District of Columbia's handgun laws, even assuming an "individual rights" interpretation of the Second Amendment, could be justified as reasonable regulations and thus upheld as constitutional. Professor Chemerinsky believes that the regulation of guns should be analyzed in the same way "as other regulation of property under modern constitutional law" and "be allowed so long as it is rationally related to achieving a legitimate government purpose."^[56] This argument was rejected by the Court.

Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, agreed with the court's ruling but describes that his interpretation of the Second Amendment would not preclude all governmental regulation of private ownership of weapons:

Even the NRA concedes that you can’t have mad men running around with weapons of mass destruction. So there are some restrictions that are permissible and it will be the task of the legislature and the courts to ferret all of that out and draw the lines. I am sure, though, that outright bans on handguns like they have in D.C. won't be permitted. That is not a reasonable restriction under anybody’s characterization. It is not a restriction, it’s a prohibition.^[57]

Clark Neily, an attorney for Dick Heller in this case, has said regarding Heller:

America went over 200 years without knowing whether a key provision of the Bill of Rights actually meant anything. We came within one vote of being told that it did not, notwithstanding what amounts to a national consensus that the Second Amendment means what it says: The right of the people to keep and bear arms shall not be infringed. Taking rights seriously, including rights we might not favor personally, is good medicine for the body politic, and Heller was an excellent dose.^[58]

Richard Posner, judge for the United States Court of Appeals for the Seventh Circuit, compares Heller to Roe v. Wade in as much as it created a federal constitutional right that did not previously exist, and he asserts that the originalist method—to which Justice Antonin Scalia adheres—would have yielded the opposite result of the majority opinion.

The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.^[59]

J. Harvie Wilkinson III, chief judge of United States Court of Appeals for the Fourth Circuit, consents to Posner's analysis, stating that Heller “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”^[60]

Jeffrey M. Shaman, law professor at DePaul University, delivered a strong criticism of the majority opinion in Heller, stating that Scalia's “exposition of the Second Amendment in Heller is bad history – simplistic analysis that ignores the complexities of historical research.”^[61]

Justice Scalia's extreme version of originalism is based on the misguided belief that the original meaning of the Constitution is fixed in history and can be objectively determined by searching historical records. It is incorrect to believe that the Constitution can be interpreted simply by reference to the original understanding of the document. Blindly following the presumed meaning of constitutional provisions formulated in reaction to past conditions and attitudes that have long since changed does not, in the end, effectuate the original understanding. Nor is it very likely to be an effective means of dealing with contemporary problems. Justice Scalia's brand of originalism is dysfunctional, an instance of cultural lag whereby the meaning of the Constitution is left dormant while the world changes around it.^[61]

Impact on federal, state, and local jurisdictions

Dick Heller's application to register his semi-automatic pistol was rejected because the gun was a bottom-loading weapon, and according to the District's interpretation, all bottom-loading guns, including magazine-fed non-assault-style rifles, are outlawed because they are grouped with machine guns.^[62] Revolvers will likely not fall under such a ban.^[63]

On December 16, 2008 the D.C. Council unanimously passed the Registration Amendment Act of 2008 which addresses the issues raised in the Heller Supreme Court decision, and also puts in place a number of registration requirements to update and strengthen the District's gun laws.^[64]

Scalia's opinion for the majority provided 2nd Amendment protection for commonly used and popular handguns but not for atypical arms or arms that are used for unlawful purposes such as short-barreled shotguns. Scalia stated: "[w]hatever 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 think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179." "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Furthermore, military grade weapons not being the sort of weapons that are possessed at home that would be brought to militia duty are not the sort of lawful weapon conceived of being protected. "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." ^[65] Therefore, weapons that are most useful in military service—M-16 rifles and the like are also not provided with 2nd Amendment protection.

Since the June 2008 ruling, over 60 different cases have been heard in lower federal courts on the constitutionality of a wide variety of gun control laws.^[66] These courts have heard lawsuits in regard to bans of firearm possession by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors.^[66] Also, cases have been heard on the constitutionality of laws prohibiting certain types of weapons, such as machine guns, sawed-off shotguns and/or specific types of weapons attachments. In addition, courts have heard challenges to laws barring guns in post offices and near schools and laws outlawing "straw" purchases, carrying of concealed weapons, types of ammunition and possession of unregistered firearms.^[66]

The courts have upheld every one of these laws as being constitutional. The basis for the lower court rulings is the paragraph near the end of the Heller ruling that states:

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 on the commercial sale of arms.

Consistently since the Heller ruling, the lower federal courts have ruled that almost all gun control measures as presently legislated are lawful and that according to UCLA professor of constitutional law Adam Winkler: "What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories."^[66]

Robert Levy, the executive director of the CATO Institute who funded the Heller litigation has commented on this passage describing constitutionally acceptable forms of prohibitions of firearms: "I would have preferred that that not have been there," and that this paragraph in Scalia's opinion "created more confusion than light."^[66].

Similar to the lifting of gun bans mentioned previously in the settlements of lawsuits filed post-Heller, in US v. Arzberger, also decided post-Heller, it was noted:

To the extent, then, that the Second Amendment creates an individual right to possess a firearm unrelated to any military purpose, it also establishes a protectible liberty interest. And, although the Supreme Court has indicated that this privilege may be withdrawn from some groups of persons such as convicted felons, there is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm. ^[67]

New York

Mayor of New York City Michael Bloomberg said that "all of the laws on the books in New York State and New York City" would be allowed by the ruling as "reasonable regulation."^[68] Robert Levy has stated that the current New York City gun laws are "not much different" from the D.C. ban that has been overturned. ^[69] The National Rifle Association and other gun-rights advocates have not ruled out suing New York City, especially over the definition of "reasonable regulation".^[70]

Southern District of New York Magistrate Judge James Francis has said that, prior to Heller, it would not have been considered unreasonable to require a defendant to surrender a firearm as a condition of pretrial release. Specifically, according to Judge Francis:

This all changed, with the recent U.S. Supreme Court decision in District of Columbia v. Heller; 128 S.Ct. 2783 (2008), where the court changed the course of Second Amendment jurisprudence by creating what he said was a "protectible liberty interest" in the possession of firearms. Thus, in the absence of an individualized determination at a bail hearing, requiring the defendant to give up any firearms violates due process.^[71]

Illinois

The NRA has filed five related lawsuits since the Heller decision.^[72] In four Illinois lawsuits, the NRA sought to have the Second Amendment incorporated by the Fourteenth Amendment, causing the Second Amendment to apply to state and local jurisdictions and not just to the federal government.^[73] Three Illinois lawsuits have been negotiated and settled out of court involving agreements that repeal gun ban ordinances and did not result in incorporation of the Second Amendment to state and local jurisdictions. The fourth NRA lawsuit against Chicago was rejected.^[74] The NRA appealed the case to the 7th Circuit Court of Appeals. On June 2, 2009, the Court of Appeals affirmed the district court's decision, based on the theory that Heller applied only to the Federal Government (including the District of Columbia), and not to states or their subordinate jurisdictions.^{[citation needed]} This opinion directly conflicts with the 9th Circuit Court of Appeals's earlier decision, holding that Heller applies to states as well.^{[citation needed]}

Chicago's handgun law was likened to the D.C. handgun ban by Justice Breyer.^[75]

Similarly, three Illinois municipalities with gun control measures on the books that previously had banned all handguns have rescinded their handgun bans.^[76]^[77]^[78]^[79] These cities were Morton Grove, Illinois, ^[80] Wilmette, another Illinois village, ^[81] and Evanston, Illinois which enacted a partial repeal of their handgun ban.

California

On January 14, 2009, in Doe v. San Francisco Housing Authority, the San Francisco Housing Authority reached a settlement out of court with the NRA, which allows residents to possess legal firearms within a SFHA apartment building. The San Francisco lawsuit resulted in the elimination of the gun ban from the SF Housing Authority residential lease terms. Tim Larsen speaking for the Housing Authority said that they never intended to enforce its 2005 housing lease gun ban against law-abiding gun owners and has never done so.^[82]