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Constitutional Law I
University of California, Hastings School of Law
Hillman, Elizabeth L.

Constitutional Law I
Hillman
Spring 2009
 
District of Columbia v. Heller                2008                                                                                         Supp.   p11
            District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device.
            Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home.
            The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.
I:          Does the DC prohibition on the possession of usable handguns in the home violate the 2d Amendment?
R:         “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.”
H:         1. The Second Amendment 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. Pp. 2–53.
 
        (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of       the second part, the operative clause. The operative clause’s text and history demonstrate that it       connotes an individual right to keep and bear arms. Pp. 2–22.
 
        (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia”             comprised all males physically capable of acting in concert for the common defense. The             Antifederalists feared that the Federal Government would disarm the people in order to disable this             citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to             deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the          ideal of a citizens’ militia would be preserved. Pp. 22–28.
 
         (c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that             preceded and immediately followed the Second Amendment . Pp. 28–30.
 
        (d) The Second Amendment ’s drafting history, while of dubious interpretive worth, reveals three state           2d Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
 
        (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after        its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
 
        (f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v.       Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights    interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the    militia, i.e., those in common use for lawful purposes. Pp. 47–54.
 
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
 
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment . The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
Scalia – majority:
 
I           Restates the facts as listed on the previous page.
 
II           A          2d Amend, guided by the principle that the Constitution was written in ordinary language to be                             readable by voters. Divides into two clauses: prefatory and operative. 
 
            1.         Operative Clause – “the right of the people to keep and bear arms shall not be infringed.”
 
                        a.         “Right of the people.” – Appears two other places in the constitution: 1st and 4th Amend,                            each time referring to an individual right. This contrasts with Militia, which is a subset                              of the people. Start with presumption towards individual exercise for all citizens.
 
                        b.         “Keep and bear arms.” – Meaning of “arms” has not changed. Applies to modern arms                             the way the 1st Amend applies to modern speech. Keep arms = have weapons.                          Bear = carry; inside or outside service to militia. Madison’s not-included                                             conscientious objector clause: “but no person religiously scrupulous of bearing arms,                           shall be compelled to render military service in person” does not seem to limit                                                ownership to militiamen, only that those opposed to firearms would not be compelled                                to serve.
 
                        c.         Meaning of the operative clause – “shall not be infringed” suggests a pre-existing                                     right. Predecessor is the assurance from William and Mary in the Declaration of Right                             which says “subjects which are Protestants may have arms for their defense suitable                               to their conditions and as allowed by law.” ← individual right having nothing to do                          with service to militia. Blackstone affirmed this view. George III tried to disarm certain                           colonists, provoking polemical reactions by Americans invoking their English rights.                           Thus it is an individual right, but not an unlimited right.
 
            2.         Prefatory Clause – “A well regulated Militia, being necessary to the security of a free state…”
 
                        a.         “Well-regulated militia.” The Militia “comprised all males physically capable of acting                               in convert for the common defense.” Militia means the same thing in Article I as in the                             2d Amend. Art I assumes the Militia is already in existence. Congress given power to                             “provide for calling forth the militia.” Not to create, but to organize. Well-regulated                                  implies simply proper discipline and training.
 
                        b.         Security of a free state – meant a free polity, not the security of each of the several                                 states. Useful for repelling invasions and suppressing insurrections; and also renders                             large standing armies unnecessary (an argument Hamilton made in favor of federal                                  control over the militia.
 
            3.         Relationship between Prefatory Clause and Operative Clause – they fit perfectly. History                         showed that tyrants eliminated militias by taking away their arms, enabling another force to                      suppress them. Contrary to dissent, self defense was a central component of the right.
 
B          This interpretation is confirmed by arms-bearing rights in state constitutions that preceded (4) and             immediately followed (9) the 2d Amend. 
 
C          Dissent misreads the historical (drafting) record. The federalists rejected the structural amendments             proposed by anti-federalists that gave states nonpre-emptible authority to organize the militia, and             favored instead the popular and uncontroversial individual-rights amendment. 
 
D          How the 2d Amend was interpreted until 1900. All cases that interpreted it universally support an individual right unconnected to militia service. Post-slavery discussions and legislation that secured           the right to bear arms to blacks showed that the 2d Amend was seen to protect an individual right to         use arms for self-defense. Thomas Cooley’s 1868 Treatise on Constitutional Limitations described a             right not as connected to militia service, but as securing the militia by ensuring a populace familiar           with arms.
 
E          Do any precedents foreclose the preceding conclusions? United States v. Miller: two men violated the             National Firearm Act for crossing state lines with a sawed-off shotgun. “[I]t 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.” Were it sufficient to say that the two crooks were not militiamen it would seem odd          to analyze the character of the weapon. Either way, this was a one-sided case with respondent        making no appearance nor filing any brief, reason enough not to make the case the beginning and  end of the Court’s consideration of the 2d Amend. In sum, Miller is read to say that the 2d does not            protect those weapons not typically possessed by law-abiding citizens for lawful purposes. Nothing     forecloses the preceding interpretation of the 2d. Other amendments have gone long periods without          illumination, so the fact that the 2d has not been illuminated by the Court is unsurprising.
 
 
III          2d Amend right is not unlimited. The right need not be extended to concealed weapons, or to felons or the             mentally ill. Miller also indicates a limitation on the right to conceal “dangerous and unusual weapons.” What             about M-16s? The classic militia consisted of men bringing with them whatever weapons they owned at  home. Perhaps no amount of small arms could be useful against modern weaponry, but that does not change    this decision’s interpretation of the right. (Vague, maybe reread later.)
 
IV         Turning to the law at issue. The ban amounts to a prohibition of an entire class of arms that is overwhelmingly             chosen by American society for lawful self-defense, and extends to the home where the need for defense is             most acute. Compared law to colonial era prohibitions on discharged that imposed a small fine or forfeiture,       but the penalties were mild, akin to those for jaywalking or speeding. Certainly a jaywalking ticket wouldn’t     deter someone from disregarding a “do not walk” sign when pursued by an attacker. The District law, by          contrast, threatens a 1-year prison sentence (5 years for 2d offense). Dissent proposes an “interest-balancing         inquiry” out of line from the traditional expressed levels (strict scrutiny, intermediate scrutiny, ratio

btain a license, no need to address the constitutionality of the licensing requirement.
That the weapon be kept locked or disassembled: does the Const require an exception that would allow unlocking for self-defense use? The c/l would allow a self-defense exception – the const question can be avoided by interpreting the statute to include it. The majority reads unspoken self-defense into every colonial law, but refuses to accept the District’s concession that this law has one. The third restriction prohibits in most cases the reg of guns in the District. There is Const importance in the objective of saving lives. Debate as to whether the District’s statute helps to achieve that objective.
 
            1          The local council committee based its recommendation on the basis of extensive public hearings and
lengthy research that easy availability of firearms is major factor in the drastic increase in gun-related violence and crime over last 40 yrs. 1974: 69 deaths/day, 25k/yr (¼ children under 14, 3k accidental); 200k injuries. For every intruder stopped by a gun owner, there are 4 gun-related accidents w/in the home.    Most murders are committed by law-abiding citizens where killer and victim are acquainted. 25% occur w/in families. (More stats.) In the absence of federal gun laws, the committee took it upon themselves. The District’s focus on handgun reflects the strong link to undesirable activities in the District’s exclusively urban environment. The prohibition of registration of shotguns was left out. 
 
            2          Stats today: 36k gun deaths/yr. 51% suicides, 44% homicides, 3% accidents. 82K injuries/yr: 62%
assaults, 6% suicide attempts. Stats are particularly striking w/re to children and adolescents. Handguns are popular among criminals. Stats also show that urban areas have different experiences with gun death injury and crime than do less populated areas. The linkage of handguns to firearm deaths and injuries is much stronger in urban than in rurl areas. 
 
            3          Respondent disagrees strongly with the District’s predictive judgment that a ban on handguns will
solve the problem. Since the ban violent crime has increased, even compared w/ neighboring states. Stat analysis on data from 20 European countries correlate higher murder rates w/ gun control. Do not reduce suicides or accidents or events involving children. Evidence of a beneficial self-defense effect of gun ownership. The ban would only affect law-abiding citizens; criminals will get guns elsewhere. These empirically based arguments have convinced legislatures not to adopt gun laws to address gun crime and accidents. Q: what is the effect of gun laws v. what would happen in the same place if they weren’t passed? Claims that there are too many guns already, so a ban wouldn’t make a difference – no study suggests it is not worthwhile to remove guns little by little. The District and respondent argue each other’s statistics. In sum, judges are left in doubt; it is the responsibility of legislatures to draw policy conclusions from empirical facts.   Turner states the sole obligation of judges is “to assure that, in formulating its judgments, the legislature has drawn reasonable inferences based on substantial evidence. The District’s predictive judgments satisfy that legal standard. Deference to legislative J is particularly important here were a local legislature has particular knowledge of local problems and insight into local solutions. Garcia: “a city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.”
 
                        B          Assess the extent the law burdens the 2d Amend. (1) preservation of a well regulated Militia;
(2) safeguarding the use of firearms for sporting purposes; and (3) assuring the use of firearms for self-defense.
 
                       
            1          The law hardly burdens the first and primary objective at all. DC has never called its
militia, but if it did respondent (66yrs) would not be eligible. Adjacent states permit handgun training. The law takes nothing away from sportsmen (rifles and shotguns not affected). Handguns are convenient for self defense. Are there other restrictions that could meet the same goals? None thought of. As to the goal of reducing the number of guns, a less restrictive law would be less effective. More stringent licensing would not prevent the gun from eventually ending up in the hand of a criminal. Lock laws still leave the gun available for use in domestic violence and other crimes. Chicago and Toledo bad certain handguns. SF passed a law, but is pre-empted by state law. 41 states pre-empt local gun laws. 6 states and 14 municipalities ban assault weapons. Bans suggest that there may be no substitute to an outright prohibition when a gov deems a type of weapon especially dangerous.
 
                        D          Does the law disproportionately burden Amendment-protected interests? (1) the law is
tailored to the problem it addresses, and there is no less-restrictive possibility. (2) the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest the 2d seeks to serve. Any self-defense interest at the