Heller v. District of Columbia, and what it means for you

Yesterday, the Supreme Court of the United States heard oral arguments in the case of Heller v. District of Columbia, in which a security guard named Dick Anthony Heller is suing DC’s government over its ban on handguns, which has stood since 1976, on the grounds that the law violates his Second Amendment rights. A full text of the oral arguments is available here for those of you who enjoy reading such things. This is the first time the Supreme Court has heard a meaningful case on the Second Amendment since 1939. The main issue is whether the Second Amendment (“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”) applies only to government-run militias like the National Guard, or whether it is meant to bestow upon individuals the right and responsibility to defend the nation in case of invasion or tyranny. Right now, it’s looking as though at least five members of the Court (Roberts, Thomas, Scalia, Alito, and Kennedy) agree with the latter interpretation. My thoughts after the jump.

Honestly, I can’t see this turning out well for the anti-gun folks in any case. Best case scenario for the Brady Campaign types is that the Court declares the Second Amendment a collective right, rather than an individual one, at which point you’re going to have all of us gun nuts forming/joining militias–the National Guard wasn’t formed till the 20th century, so it’d be difficult to argue that the Founders intended that as the “well regulated militia,” rather than citizen militias–in order to firmly establish members’ rights to bear arms. Given that current US Code defines the “militia” as both the National Guard/Coast Guard and all able-bodied males between 17 and 45 (plus, presumably, women who volunteer–the code hasn’t been updated in almost a century), even that might as well be an individual right. Worst case scenario for the antis is that the Court declares gun ownership an individual right not subject to restriction, which would basically negate all gun control beyond background checks, if that. The most likely scenario in my opinion, based on the oral arguments, is that the Court will rule that the Second Amendment is an individual right but subject to “reasonable restriction,” much like the First Amendment doesn’t mean you can commit libel with impunity.

Even if that last scenario happens though, the best precedent for “reasonable regulation” of guns was set down in US v. Miller, the only other Second Amendment Supreme Court case with any real weight. In that case, a man’s conviction for transporting a sawed-off shotgun across state lines in violation of the National Firearms Act of 1934 was upheld by the Court–not because the Second Amendment didn’t apply, but because the weapon in question was deemed not suitable for militia duty. The logical extension of that, of course, is that any weapon suitable for militia duty (which at this point in time means fully-automatic or select-fire weapons) should be legal for civilians to own without undue restriction. The Miller ruling never addressed this point, but if Heller leads to the Second Amendment being declared an individual right, it’s entirely possible that within a few years the only permissible restriction on gun ownership by civilians will be background checks and weapons that you couldn’t use in a war.

Whatever happens, it’ll be interesting to watch.

Leave a Reply