District of Columbia v. Heller, 554 U.S. 570 (2008), is a landmark
case in which the
Supreme Court of the United States
Supreme Court of the United States held that the
Second Amendment protects an individual's right to possess a firearm
unconnected with service in a militia for traditionally lawful
purposes, such as self-defense within the home, and that Washington,
D.C.'s handgun ban and requirement that lawfully-owned rifles and
shotguns be kept "unloaded and disassembled or bound by a trigger
lock" violated this guarantee. It also stated that the right to bear
arms is not unlimited and that guns and gun ownership would continue
to be regulated. Due to Washington, D.C.'s special status as a federal
district, the decision did not address the question of whether the
Second Amendment's protections are incorporated by the Due Process
Clause of the Fourteenth Amendment against the states, which was
addressed two years later by
McDonald v. City of Chicago
McDonald v. City of Chicago (2010) in
which it was found that they are. It was the first Supreme Court case
to decide whether the Second Amendment protects an individual right to
keep and bear arms for self-defense.
On June 26, 2008, the Supreme Court affirmed by a vote of 5 to 4 the
Court of Appeals for the D.C. Circuit in Heller v. District of
Columbia. The Supreme Court 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 Regulations Act was an unconstitutional ban,
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". Prior to this decision the
Firearms Control Regulation Act of 1975 also restricted residents from
owning handguns except for those registered prior to 1975.
The majority opinion, written by Justice Antonin Scalia, and the
primary dissenting opinion, written by Justice John Paul Stevens, are
considered examples of the application of originalism in practice.
1 Lower court background
1.1 District Court
1.2 Court of Appeals
1.2.1 Henderson's dissent
1.2.2 Petition for rehearing
2 Supreme Court
Amicus curiae briefs
2.2 Oral arguments
2.3.1 Second Amendment findings and reasoning for the decision
2.4 Issues addressed by the majority
2.5 Dissenting opinions
3 Non-party involvement
3.2 Brady Campaign to Prevent Gun Violence
4.1 To the lower court rulings
4.2 To the Supreme Court rulings
5 Post ruling impacts
5.1 District of Columbia
5.2 New York
7 See also
9 External links
Lower court 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. They aimed
for a group that would be diverse in terms of gender, race, economic
background, and age, and selected six plaintiffs from their mid-20s to
early 60s, three men and three women, four white and two black:
A software designer and former nurse who had been active in trying to
rid her neighborhood of drugs. Parker is a single woman whose life had
been threatened on numerous occasions by drug dealers who had
sometimes tried to break into her house.
Tom G. Palmer
A colleague of
Robert A. Levy
Robert A. Levy at the
Cato Institute and the only
plaintiff that Levy knew before the case began. Palmer, who is gay,
defended himself with a
9mm handgun in 1982. While walking with a
friend in San Jose, California, he was accosted by a gang of about 20
young men who used profane language regarding his sexual orientation
and threatened his life. When he produced his gun, the men fled.
Palmer believes that the handgun saved his life.
Gillian St. Lawrence
A mortgage broker who lives in the Georgetown section of D.C. and who
owns several legally registered long guns which she uses for
recreation in nearby Chantilly, Virginia. It had taken St. Lawrence
two years to complete the registration process. She wanted to be able
to use these guns to defend herself in her home and to be able to
register a handgun.
Tracey Ambeau (now Tracey Hanson)
An employee of the U.S. Department of Agriculture. Originally from St.
Gabriel, Louisiana, she lives in the
Adams Morgan neighborhood of D.C.
with her husband, Andrew Hanson, who is from Waterloo, Iowa. They live
in a high-crime neighborhood near Union Station in D.C. She grew up
around guns and wanted one to defend her home.
A communications lawyer who had previously contacted the National
Rifle Association about filing a lawsuit to challenge the D.C. gun
laws. Lyon held D.C. licenses for a shotgun and a rifle, but wanted to
have a handgun in his home.
Dick Anthony Heller
A licensed special police officer for the District of Columbia. For
his job, Heller carried a gun in federal office buildings, but was not
allowed to have one in his home. Heller had lived in southeast
D.C. near the Kentucky Courts public housing complex since 1970 and
had seen the neighborhood "transformed from a child-friendly welfare
complex to a drug haven". Heller had also approached the National
Rifle Association about a lawsuit to overturn the D.C. gun ban, but
the NRA declined.
Previous federal case law 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.
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." They filed for an
injunction pursuant to 28 U.S.C. § 2201, 2202, and 42
U.S.C. § 1983. District Court Judge Ricardo M. Urbina
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
Laurence H. Silberman formed the Court of Appeals panel, with Senior
Circuit Judge Silberman writing the court's opinion and Circuit Judge
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
The court then held that the Second Amendment "protects an individual
right to keep and bear arms", that the "right existed prior to the
formation of the new government under the Constitution", also stating
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.
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:
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.
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
Petition for rehearing
In April 2007, the District and Mayor
Adrian Fenty petitioned for
rehearing en banc, arguing that the ruling created inter- and
intra-jurisdictional conflict. On May 8, the Court of Appeals for
the D.C. Circuit denied the request to rehear the case, by a 6–4
The defendants petitioned the
United States Supreme Court
United States Supreme Court to hear the
case. The plaintiffs did not oppose but, in fact, welcomed the
petition. The Supreme Court granted certiorari on November 20,
2007. 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
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
A majority of the members of Congress signed the brief authored by
Stephen Halbrook advising that the case be affirmed overturning the
ban on handguns not otherwise restricted by Congress. Vice
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. Arizona Senator John
McCain, Republican, also signed the brief. Then-Illinois Senator
Barack Obama, did not.
A majority of the states signed the brief of
Texas Attorney General
Greg Abbott, authored by Abbott's solicitor general, Ted Cruz,
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. Law
enforcement organizations, including the
Fraternal Order of Police
Fraternal Order of Police and
the Southern States Police Benevolent Association, also filed a brief
urging that the case be affirmed.
A number of organizations signed friend of the court briefs advising
that the case be remanded, including the United States Department of
Justice and Attorneys General of New York, Hawaii, Maryland,
Massachusetts, New Jersey, and Puerto Rico. Additionally, friend
of the court briefs to remand were filed by a spectrum of religious
and anti-violence groups, a number of cities and mayors, and
many police chiefs and law enforcement organizations.
A collection of organizations and prominent scholars, represented by
attorney Jeffrey Teichert, submitted an "errors brief" arguing that
many of the common historical and factual "myths and
misrepresentations" generally offered in favor of banning handguns
were in error. Teichert's errors brief argued from a historical
perspective that the Second Amendment protected an individual right to
keep and bear arms.[dead link]
Robert A. Levy
Robert A. Levy (left) and Alan Gura, counsel for Heller
The Supreme Court heard oral arguments in the case on March 18, 2008.
Both the transcript and the audio 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
Paul D. Clement allotted 15 minutes
to present the federal government's views. During the argument,
however, extra time was extended to the parties, and the argument ran
23 minutes over the allotted time.
Walter E. Dellinger of the law firm O'Melveny & Myers, also a
Duke University Law School
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
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. Robert Levy, a senior fellow at the Cato Institute, and
Clark Neily, a senior attorney at the Institute for Justice, were his
Antonin Scalia wrote the majority opinion.
The Supreme Court held:
(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.
(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 Second Amendment proposals
that unequivocally referred to an individual right to bear arms. Pp.
(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.
(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.
(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.
The Opinion of the Court, delivered by Justice Scalia, was joined by
John G. Roberts, Jr.
John G. Roberts, Jr. and by Justices Anthony M. Kennedy,
Clarence Thomas and Samuel A. Alito Jr.
Second Amendment findings and reasoning for the decision
The Illinois Supreme Court in
People v. Aguilar
People v. Aguilar (2013), summed up the
Heller's findings and reasoning:
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme
Court undertook its first-ever "in-depth examination" of the second
amendment's meaning Id. at 635. After a lengthy historical discussion,
the Court ultimately concluded that the second amendment "guarantee[s]
the individual right to possess and carry weapons in case of
confrontation" (id. at 592); that "central to" this right is "the
inherent right of self-defense"(id. at 628); that "the home" is "where
the need for defense of self, family, and property is most acute" (id.
at 628); and that, "above all other interests," the second amendment
elevates "the right of law-abiding, responsible citizens to use arms
in defense of hearth and home" (id. at 635). Based on this
understanding, the Court held that a District of Columbia law banning
handgun possession in the home violated the second amendment. Id. at
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 an 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."
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."
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." 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'
John Paul Stevens
John Paul Stevens wrote the dissenting opinion.
In a dissenting opinion, Justice
John Paul Stevens
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". 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.
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
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
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". These concerns were based on NRA lawyers'
assessment that the justices at the time the case was filed might
reach an unfavorable decision.
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." 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
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.
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
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.
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
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.
Brady Campaign to Prevent Gun Violence
Brady Campaign to Prevent Gun Violence
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. 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."
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."
To the lower court rulings
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Various experts expressed opinions on the D.C. Circuit's decision.
Harvard Law School
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." 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.
Erwin Chemerinsky, then of Duke Law School and now dean of the
University of California, Berkeley 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." However,
the dicta in Heller suggests that applying a mere rational basis
analysis is an incorrect reading of the Constitution and would, in
fact, defeat the entire purpose of the Second Amendment.
To the Supreme Court rulings
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.
Clark Neily, an attorney for Dick Heller in this case, has said
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.
Richard Posner, judge for the United States Court of Appeals for the
Seventh Circuit, compares Heller to Roe v. Wade, stating that it
created a federal constitutional right that did not previously exist,
and he asserts that the originalist method – to which Justice
Antonin Scalia claimed to adhere – 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.
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."
Heller thus represents the worst of missed opportunities—the chance
to ground conservative jurisprudence in enduring and consistent
principles of restraint. The Constitution expresses the need for
judicial restraint in many different ways—separation of powers,
federalism, and the grant of life tenure to unelected judges among
them. It is an irony that Heller would in the name of originalism
abandon insights so central to the Framers’ designs.
Alan Gura, Lead Counsel for Respondent in Heller rejects Wilkinson's
criticism, stating that "Rather, the Court affirmed the Second
Amendment's original public meaning, as confirmed by its plain text.
Having determined the Amendment's meaning, the Court showed the proper
level of deference to the D.C. City Council's outright repudiation of
the constitutional text: none."
Post ruling impacts
See also: McDonald v. City of Chicago, Guy Montag Doe v. San Francisco
Housing Authority, and Nordyke v. King
Since the June 2008 ruling, over 80 different cases have been heard in
lower federal courts on the constitutionality of a wide variety of gun
control laws. 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.
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
The courts have upheld most 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."
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."
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.
District of Columbia
Dick Heller, pictured here in 2018
The D.C. government indicated it would continue to use zoning
ordinances to prevent firearms dealers from operating and selling to
citizens residing in the District, meaning it would continue to be
difficult for residents to legally purchase guns in the District.
Additionally, the District enacted new firearms restrictions in an
effort to cure the constitutional defects in the ordinance that the
Supreme Court had identified in Heller. The new provisions were: (1)
the firearms registration procedures; (2) the prohibition on assault
weapons; and (3) the prohibition on large capacity ammunition feeding
devices. In response, Dick Heller challenged these new restrictions
filing a civil suit named Heller v. District of Columbia (Civil Action
No. 08-1289 (RMU), No. 23., 25) where he requested a summary judgment
to vacate the new prohibitions. On March 26, 2010, the D.C. District
Ricardo M. Urbina denied Dick Heller's request and granted the
cross motion, stating that the court "concludes that the regulatory
provisions that the plaintiffs challenge permissibly regulate the
exercise of the core Second Amendment right to use arms for the
purpose of self-defense in the home. "
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. Revolvers will likely not fall under
such a ban.
On December 16, 2008 the D.C. Council unanimously passed the Firearms
Registration Emergency 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.
Justice Antonin Scalia's opinion for the majority provided Second
Amendment protection for commonly used and popular handguns but not
for atypical arms or arms used for unlawful purposes, such as
short-barreled shotguns. Scalia stated: "Whatever the reason, handguns
are the most popular weapon chosen by Americans for self-defense in
the home, and a complete prohibition of their use is invalid." "We
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." "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
On July 24, 2014, the U.S. District Court for the District of Columbia
ruled, in Palmer v. District of Columbia, that the District's total
ban on the public carrying of ready-to-use handguns is
unconstitutional. In its decision, the Court stated: "[ . . .
] the Court finds that the District of Columbia's complete ban on the
carrying of handguns in public is unconstitutional. Accordingly, the
Court grants Plaintiffs' motion for summary judgment and enjoins
Defendants from enforcing the home limitations of D.C. Code §
7-2502.02(a)(4) and enforcing D.C. Code § 22-4504(a) unless and until
such time as the District of Columbia adopts a licensing mechanism
consistent with constitutional standards enabling people to exercise
their Second Amendment right to bear arms. Furthermore, this
injunction prohibits the District from completely banning the carrying
of handguns in public for self-defense by otherwise qualified
non-residents based solely on the fact that they are not residents of
Bloomberg delivering a speech
Mayor of New York City
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." 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. The National
Rifle Association and
other gun-rights advocates have not ruled out suing New York City,
especially over the definition of "reasonable regulation".
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
Maloney v. Rice (a.k.a. Maloney v. Cuomo and Maloney v. Spitzer), 554
F.3d 56 (2d. Cir. 2009) originally held that the 2nd Amendment does
not apply to the states in the Second Circuit. The case involved a
state ban on
Nunchaku sticks (a martial arts weapon) in New York. In a
memorandum opinion dated June 29, 2010, the Supreme Court vacated the
Second Circuit decision in Maloney and remanded for further
consideration in light of the holding in McDonald v. City of Chicago
that the Second Amendment does apply to the states. The Second Circuit
has remanded the case to the trial court.
The NRA has filed five related lawsuits since the Heller decision.
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. 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. 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.
This opinion directly conflicts with the 9th Circuit Court of
Appeals's earlier decision, holding that Heller applies to states as
On June 28, 2010, the Supreme Court reversed the Court of Appeals for
the Seventh Circuit's decision in
McDonald v. City of Chicago
McDonald v. City of Chicago and
remanded it back to
Seventh Circuit to resolve conflicts between
certain Chicago gun restrictions and the Second Amendment. Chicago's
handgun law was likened to the D.C. handgun ban by Justice Breyer.
Similarly, three Illinois municipalities with gun control measures on
the books that previously had banned all handguns have rescinded their
handgun bans. These cities were Morton Grove,
Illinois, Wilmette, another Illinois village, and Evanston,
Illinois which enacted a partial repeal of its handgun ban.
In Ezell v. Chicago, decided July 6, 2011, the Seventh Circuit
reversed a district court decision that the post-McDonald measures
adopted by the City of Chicago were constitutional. The Chicago law
required firearms training in a shooting range in order to obtain a
gun permit, but also banned shooting ranges within the City of
Chicago. The City had argued that applicants could obtain their
training at gun ranges in the suburbs. The opinion noted that Chicago
could not infringe Second Amendment rights on the grounds that they
could be exercised elsewhere, any more than it could infringe the
right to freedom of speech on the grounds that citizens could speak
On January 14, 2009, in Guy Montag 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 have never done
On February 13, 2014, in Peruta v. San Diego, the United States Court
of Appeals for the Ninth Circuit decided that the San Diego policy to
disallow both concealed carry, and the
State of California
State of California law that
disallows open carry anywhere in the state, were not acceptable under
Supreme Court precedent in Heller and McDonald. A "responsible,
law-abiding citizen has a right under the Second Amendment to carry a
firearm in public for self-defense." More specifically, "the Second
Amendment does require that the states permit some form of carry for
self-defense outside the home."(italics in original) ... and "carrying
weapons in public for the lawful purpose of self defense is a central
component of the right to bear arms." The case was remanded to
the district court because "San Diego County’s 'good cause'
permitting requirement impermissibly infringes on the Second Amendment
right to bear arms in lawful self-defense."
On January 10, 2014, in Morris v. U.S. Army Corps of Engineers, the
District Court struck down a Corps of Engineers regulation barring
possession of loaded guns in recreation areas surrounding Corps dams.
The court held that tents are akin to homes, and under Heller, Second
Amendment rights are protected.
This article's factual accuracy may be compromised due to out-of-date
information. Please update this article to reflect recent events or
newly available information. (September 2011)
Initial reaction has deemed the Heller ruling to be of great
significance, though it remains too soon to tell what the long-term
effects may be.
Sanford Levinson has written that he is inclined
to believe that the Heller decision will be relatively insignificant
to the practice of law in the long run but that it will have
significance to other groups interested in cultural literacy and
In 2009, both Levinson and
Mark Tushnet speculated that it is quite
unlikely that the case would be studied as part of casebooks of future
law schools. As was predicted, a large surge of court cases
was seen in lower federal courts in the aftermath of the 2008 ruling.
As of March 2009[update], over 80 cases had been filed seeking to
overturn existing gun laws.[needs update]
The decision in McDonald v. City of Chicago, which was brought in
response to Heller and decided in 2010, did invalidate much of
Chicago's gun purchase and registration laws, and has called into
question many other state and local laws restricting purchase,
possession and carry of firearms.
Wikinews has related news: US Supreme Court rules DC gun ban
Wikisource has original text related to this article:
District of Columbia v. Heller
United States Supreme Court
United States Supreme Court cases, volume 554
United States Supreme Court
United States Supreme Court cases
Firearm case law in the United States
Gun politics in the United States
Incorporation (Bill of Rights)#Amendment II
Second Amendment to the United States Constitution
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Certiorari Denied p.2; Court: A constitutional right to
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cannot make up for the unreasonable restriction of a constitutional
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home, amounts to a complete prohibition on the lawful use of handguns
for self-defense. As such, we hold it unconstitutional."
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ordinance, as it is drafted and on the books today, would not
withstand constitutional scrutiny, and therefore should be
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315–347. While the Heller decision has already been deemed of great
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^ Savage, David G. (2008-06-28). "Justices' decision triggers
questions". Los Angeles Times. The Supreme Court's historic ruling
this week that clarified Americans' right to own a gun for
self-defense left a crucial question unanswered, one that will be
resolved only after many years and a torrent of litigation
^ Liptak, Adam (March 16, 2009). "Few Ripples From Supreme Court
Ruling on Guns". The New York Times. The Heller case is a landmark
decision that has not changed very much at all
Doherty, Brian (2009-02-25). Gun Control on Trial: Inside the Supreme
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Heller Opinion, "District of Columbia, et al., v. Dick Anthony Heller.
554 U.S. 570 (2008)" (PDF). United States Supreme Court. 2008-06-26.
Parker Opinion, "Shelly Parker, et al. v. District of Columbia and
Adrian M. Fenty, Mayor of the District of Columbia, Case No. 04-7041"
(PDF). United States Court of Appeals for the District of Columbia
Circuit. 2007-03-09. Retrieved 2008-02-12.
D.C. v. Heller opinion (at Cornell Legal Information Institute). Also
available as Heller Decision,
United States Supreme Court
United States Supreme Court web site
Archive of case pleadings, orders, and opinions. Maintained by Gura
& Possessky P.L.L.C., plaintiff's counsel.
United States Department of Justice
United States Department of Justice Solicitor General 1-11-2008 amicus
Audio commentary by Appellant's Attorney Clark Neily regarding his
views on the Second Amendment, dated January 17, 2008
Audio/visual recording of the arguments (RealMedia)[permanent dead
Audio recording of the arguments (MP3)
Harvard Law Review forum: Heller is a "Second Amendment Revolution" in
the Harvard Law Record
CRS Report for Congress: "District of Columbia v. Heller: The Supreme
Court and the Second Amendment" (public domain – can be copied into
article with citations)
Critical Analysis of D.C. v. Heller
Summary of District of