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.

On Thursday, June 26, 2008, the United States Supreme Court released its decision in the case of D.C. vs. Heller. The majority of the 5-4 decision clarified, for the first time in U.S. history, the legal understanding of the Second Amendment. The comprehensive opinion states unequivocally that the Second Amendment applies to individual citizens.

The majority opinion also addresses a variety of issues associated with the Second Amendment including licensing, background checks, and types of firearms allowed. These issues are addressed broadly, however, so we can expect additional legislation, debate, protests, and potential lawsuits in the coming years as we attempt to narrow down the Court's opinion.

We would like to take this opportunity to review the Court's opinion and discuss its possible ramifications. This article will provide relevant quotes to give the reader an understanding of the majority view, without quoting the entire opinion. If you would like to read the opinion in full, please click here.

Individual Right

"The Second Amendmend 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." (page 1)

"Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.'" (19)

"We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisiting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents." (25)

"It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia." (26)

Semi-Automatic Firearms / Background Checks / Concealed Carry

"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." (2)

"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849 (1997) and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36 (2001), the Second Amendment extends, prima facie to all instruments that consitute bearable arms, even those that were not in existence at the time of the founding." (8)

"We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. 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 the kind in common use at the time.'" (52)

"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." (53)

"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U.S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" (55)

THE GOOD NEWS:

• The Second Amendment codifies a pre-existing right to keep and bear arms for the purpose of self and national defense.
  
  
• The D.C. ban on handgun ownership and possession in the home is unconstitutional and therefore is null and void, effective approximately 21 days from 6/26/08. Check with local law enforcement before exercising this right.
  
  
• Laws requiring mandatory use of trigger locks is unconstitutional.
  
  
• The Second Amendment applies to firearms in common use of our time; i.e., it is not limited to muskets.
  

THE BAD NEWS:

• Government can require firearm ownership licensing and firearm registration.
  
• Government can ban private-party transfer of firearms.
  
• Government can ban certain types of firearms. This will be debated heavily in the future as to what constitutes firearms of "common use" is expected to be challenged in court.
  
• Government can deny Concealed Carry Weapon permits.

THE WORST POSSIBLE SCENARIO

Expect anti-gun cities and states to impose a very narrow interpretation of this ruling which will likely be debated in the legislature and argued in the courts.

• Ban on all firearms with the exception of handgun revolvers.
  
• Mandatory (and possibly expensive and complicated) licensing procedures.
  
• Ban on concealed carry permits.
  
• Lengthy waiting periods despite passing an instant background check.
  
• Magazine capacity restrictions.
  
• Unwarranted government red tape, lost paperwork, incorrectly denied paperwork, etc.

BEST POSSIBLE SCENARIO

Pro-gun cities and states can expect to maintain the status quo including:

• Private party transfers.
• Instant background checks with no waiting periods.
• No restrictions on semi-automatic firearms or revolvers.
• Shall issue concealed carry.
  

It is also possible that legislators at the federal level may attempt national: Licensing requirements, bans on certain types of firearms, waiting periods, etc. Your vote is just as essential today as it was yesterday. The fat lady isn't singing just yet.

Jennifer Freeman is Executive Director and co-founder of Liberty Belles, a grass-roots organization dedicated to restoring and preserving the Second Amendment.
http://www.libertybelles.org
jennifer@libertybelles.org