After Heller, What Now?

As expected, in an opinion from Justice Scalia, the U.S. Supreme Court held in the D.C. v. Heller case that the 2nd Amendment to the United States Constitution protects an individual right to own a gun for the purpose of self-defense.

The Court was modest in its holding, however, by making clear a number of limitations present in the ruling.

Does The Second Amendment Apply To The States?

Most critically, the majority opinion noted that under current U.S. Supreme Court precedent in post-14th Amendment cases, that the Court has held that the Second Amendment is not one of those parts of the Bill of Rights which is "incorporated" in the 14th Amendment. Thus, until the U.S. Supreme Court decides to overrule this line of case (and the majority opinion implied that the time to do so could be ripe), the Second Amendment may not invalidate any state or local law.

Mr. Heller was able to resort to the Second Amendment in this case solely because the District of Columbia, which enacted the law, is part of the federal government, and hence, it is subject directly to the provisions of the Second Amendment. The NRA, and presumably other parties, are now bringing test cases in places including Chicago and San Francisco to see if the U.S. Supreme Court will reverse itself on the issue of incorporation, but that is a case for another day.

The relevant language in the opinion says (slip op. at 48, footnote 23):

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

The notion that overruling prior precedent to permit incorporation of the Second Amendment might be ripe is also suggested when the Court states (slip pp. at 53-54):

Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, ChampaignCty., 333 U. S. 203 (1948).

Also importantly, the Court notes: “It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.” (Slip Op. at 44).

The Court's suggestion is that the meaning of the Second Amendment is an evolving area of law and that the prior non-incorporation holdings may have outlived their due date.

But footnote 23 probably prevents any federal court from holding that the Second Amendment is incorporated as to do so would violate binding U.S. Supreme Court precedents, although a federal court could suggest an alternate ruling if this precedent were overruled. Until then, Heller, and the Second Amendment, apply only to the law in the District of Columbia, federal territories and possessions, and Congressionally enacted federal laws.

Only one member of the Heller majority would have to defect to prevent the Second Amendment from being incorporated.

Related, but of unclear implication, is the Court's observation that the Second Amendment has not come up very often because legislators have rarely passed laws abridging the right (slip pp. at 53-54):

It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.

The existence of many versions of the right to bear arms in many state constitutions, perhaps even all of them, and the vast differences in circumstances in matters relevant to gun possession between say, Wyoming or Alaska on one hand, and Rhode Island or Hawaii, on the other, argues for not incorporating the Second Amendment. It also virtually eliminates most future litigation of local gun laws in the U.S. Supreme Court. Likewise, the fact that few jurisdictions do regulate guns as tightly as the District of Columbia did in Heller is notable.

While not all justices in the majority in Heller may be convinced that state constitutions, state legislatures and state courts may be trusted to limit gun control by state and local governments, such an idea might appeal to Justice Kennedy, and might also flow naturally into the observation that other rights which Justice Scalia treasures, such as the right to a trial by jury in civil cases or a unanimous jury in criminal cases, are not protected at the state level. Cases where rights have not been held to be incorporated generally argue that a civilized society can be maintained without them. The examples of Japan and the United Kingdom, to take just two examples, establish that it is possible to have a civilized democratic society without a right to bear arms with federal constitutional force.

States rights has long been a rallying cry of conservatives. But in this situation, that commitment to federalism may undermine the cause of a potent and widely effective Second Amendment.

Reasonable Regulation

While Heller did not enact a precise scrutiny level for analyzing the extent of the Second Amendment's individual right, the holding, the logic of the ruling, and the majority dicta in the opinion suggest that considerable regulation of an individual's Second Amendment rights is permitted. Some regulations which are reasonable are set forth in the opinion (slip op. at 54-55). They include bans on felons owning guns, on the rights of the mentally ill to own guns, and bans on the sort of highly dangerous weapons found only in military use (apparently including anything as military specific and unusually dangerous as an automatic rifle).

[N]othing 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. . . .

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. . . .

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.

The dangerous weapon requirement exception to the Second Amendment prohibits more than just automatic weapons. "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.” Slip Op. at 53.

The mere existence of a licensing requirement was not overruled in Heller, but in that particular case, the requirement wasn't challenged. But, presumably, if felons and the mentally ill may be prohibited from owning weapons, and if regulations of commercial sales of firearms are permitted, then some sort of licensing or application process to enforce this limitations is likewise permissible.

What Does The Right Protect?

On the other hand, the right to possess a functional handgun in the home, for the proposes of self-defense, even if the alternative of a long gun was available, was held to be protected by the Second Amendment.

The Court observes “that the American people have considered the handgun to be the quintessential self-defense weapon.” Slip Op at 57. “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.” Slip Op. at 57-58.

To my knowledge, no U.S. state has a statewide ban on the possession and use for self-defense of handguns in one's own home by mentally sound adults with no criminal justice involvement, although some municipalities do have such bans.

It also seems likely that, at least some class of people, in some places, have an individual right to carry arms, including handguns, when out and about, as well as a right to keep them in their homes, as the quotes below (slip op. 10-11, 19, 22), suggest, albeit with some limitations:

At the time of the founding, as now, to ‘bear’ meant to ‘carry.’. . . When used with ‘arms,’ however, the term has a meaning that refers to carrying for a particular purpose - confrontation. . . . Although the phrase implies that the carrying of the weapon is for the purpose of ‘offensive or defensive action,’ it in no way connotes participation in a structured military organization. . . . Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

The confrontation most prominently protected appears to be one in which the use of deadly force for self-defense is required. It isn't clear if this right is more narrow than the right in the home, however, where various constitutional considerations involved in a right to security in one's home converge.

Open Questions Regarding The Scope Of The Second Amendment

Most states allow some citizens to obtain concealed weapons permits, but some jurisdictions are very parsimonious in granting them, while others allow them for almost any citizen not disqualified for an express reason from doing so. Certainly, it would seem that it would be improper under the Second Amendment to deny a concealed weapons permit to someone like Mr. Heller, a police officer, who carries such weapons when he is on the job. If the Second Amendment right is strong in one's home than in public, this distinction may survive constitutional challenge, if it is not, "must issue" concealed weapons permits may be constitutionally required.

Given the Court's holding, in addition to incorporation, other open issues seem to include (1) whether open carrying of firearms in non-sensitive public places must be permitted; (2) whether possession of firearms in places of business by proprietors of the business is entitled to the same protections as possession of firearms in the home; (3) whether a ban on semi-automatic assault weapons or Saturday night specials, large caliber but otherwise unexceptional ammunition, body armor, gas masks or similar prohibitions on non-automatic firearms and self-defense equipment is within the dangerous weapon exception to the 14th Amendment, (4) what classes of people other than felons and the mentally ill may be prohibited from possessing weapons, (5) what recording keeping regarding gun ownership and transfers may be maintained in connection with commercial sales of firearms, and (6) what regulations may be imposed upon non-commercial firearm transfers.

The examples provided in the Heller opinion suggest that reasonable regulations of the Second Amendment right may be upheld without excessive scrutiny, certainly not the kind of piercing review that rights subject to strict scrutiny have been afforded, although something more than a highly deferential rational basis review of gun regulations may be required. Like the Court's regulation of discrimination on the basis of gender under the equal protection clause and related civil rights laws, the scrutiny afforded gun laws is likely to be intermediate in intensity and responsive to the realities of the situation. Individual prohibitions may produce splits of authority until they are resolved by the U.S. Supreme Court, the number of cases in the gray area may turn out to be quite small after a rather small number adjudications of the right. If the right is not incorporated, the number of adjudications is likely to be quite small.

Another important class of gun regulations not really addressed is whether the Second Amendment applies when the government acts in its capacity as a landlord or welfare program operator, as opposed to acting in a regulatory setting. Can public housing tenants or adults in a university dormitory, for example, be required to relinquish their Second Amendment right to have handguns in their home as a condition of their tenancy? Likewise, are private limitations enforceable via the eviction process imposed by private landlords and/or employers enforceable?

Given the Court's prior rulings upholding waivers of 4th Amendment protections from search and seizure by public housing tenants, and prior rulings holding that enforcement of private rights through litigation does not constitute state action, I think that it is likely that both of these classes of gun regulation may be upheld against Second Amendment challenges.

One of the most direct insights we are provided regarding the class of persons who may lawfully be prevented from bearing arms is not terribly helpful, because it would be unconstitutional under current equal protection standards (Slip Op. 42):

Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia.

Both the prohibition of gun ownership by felons, and by public housing residents, have strong subtexts of racial disparity in impact. But it isn't clear if an echo of the expressly racially based prohibitions found in the post-Civil War South would cause the Court to reach out and strike down these prohibitions. I suspect that it will not do so.

Indeed, a fair reading of Heller could suggest another class of people that would cause racial disparity in application that could be excluded from the right to bear arms. The Court states that the right of the "People" in the Second Amendment is a right that extends only to "all members of the political community," (slip op. at 6), the body out of whom the militia was drawn at common law. While, the Court is exceedingly unlikely to hold that this exclude able bodied adult women, who have never been subject to a military draft or considered part of the militia at common law or under state constitutions, this description of the "People" might be used to hold that non-citizens who reside in the United States do not have a Second Amendment right to bear arms, on the theory that bearing arms, like voting, is to some extent a political right.

Finally, the extent to which the Second Amendment can be applied to interpret other laws in an effort to apply them in a constitutional manner is an open question. Could, for instance, the Second Amendment be used to interpret a concealed carry permit issuance law that on its face gives local law enforcement absolute discretion to deny issuance of a permit to do so only given some solid probable cause to believe that the permit would be abused? Or, could the Second Amendment be used to allow even felons to bear arms in exigent circumstances without criminal penalties?

Did The Heller Court Create A Right To Self-Defense?

Sometimes recognizing one right implies the existence of another. For example, while the entitlement of state governments to sovereign immunity is nowhere expressed in the text of the U.S. Constitution, it has been held to be implied by the 11th Amendment which prevents states from being sued in federal court by private individuals.

As the Court notes “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.” Slip Op. at 26.

A strong thread of Second Amendment theory is that it protects a natural right to self-defense. If the Second Amendment establishes the constitutional right of an individual to bear arms for the purpose of self-defense, then it follows that armed self-defense must be lawful, at least in some circumstances.

The U.S. Supreme Court has thus far more or less entirely left to the states the issue of when the use of deadly force is permitted in self-defense or in the defense of others. All states (and even the District of Columbia) permit this in some situations as a defense to the crimes of assault and murder. But there is ongoing legislative ferment over when this right exists, and state law is not uniform. At the center of this debate are "make my day" laws that permit the use of deadly force to stop a crime, even when alternatives like retreat or the use of non-deadly force may be sufficient. Some states don't have these laws at all. Colorado allows the use of deadly force in home invasion situations, even when the option of retreat is available. Some jurisdictions expand "make my day" laws to businesses. Florida imposes no geographical boundaries on its "make my day" law, never imposing a duty to retreat before using deadly force.

It wouldn't be a great stretch to rule, given the Court's ruling in Heller that the right to use deadly force for self-defense is an unenumerated right protected by the constitution which is coincident to the Second Amendment. Indeed, even if the right to bear arms isn't incorporated, it isn't inconceivable that minimum standards for permitting the use of deadly force in self-defense might be.

More Symbol Than Substance

The bottom line is that, outside the District of Columbia, Heller is more of a symbolic victory for gun rights, than one of substance. The rights Heller protects, most states, including Colorado, already to provide to their citizens, and it isn't clear that this ruling invalidates any law enacted by Congress and currently in force.

Indeed, by establishing that even a very conservative U.S. Supreme Court is willing to enshrine only a circumscribed and narrow right to bear arms, and by expressly enunciating the limitations on the right to bear arms at the same time that the right is announced, the U.S. Supreme Court may have stolen the N.R.A.'s thunder on the issue of judicial appointments and Second Amendment rights.

While Heller has acknowledged that there is an individual right to bear arms, something that even Democratic Presidential candidate Barack Obama with political roots in anti-gun Chicago was willing to do, the Court in this case has also shut down, perhaps in perpetuity, more a more absolutist scope for the right.

By rooting the Second Amendment more in common practice and self-defense, than the political goal of popular violent revolution, the Court has removed any constitutional objection to keeping hand grenades, military explosives, sawed off shotguns, metal detector evading firearms, automatic weapons, missiles, armor piercing bullets, tanks, chemical weapons, biological weapons and nuclear weapons out of private hands.

Democratic politicians can now point to Heller and say that they agree with the conservative U.S. Supreme Court that there is an individual right to bear arms which is subject to substantial, reasonable regulation. Moreover, if later cases do not apply the Second Amendment to the states, the ability of states to tailor their gun control laws to local desires, free of significant federal court or Congressional influence, Heller may actually bring increased harmony to this area of law, which is a political perennial.