Header Graphic





Justice Antonin Scalia’s opinion for the 5-4 majority of the Supreme Court in the recent landmark Second Amendment gun case, District of Columbia v. Heller, is a major contribution to American constitutional law.


It is at once a rich exposition of the Second Amendment’s historical context, a textbook demonstration of Originalist analysis of an important constitutional amendment, a surgical dissection of virtually every word of the amendment, and a point-by-point refutation of the dissents of Justice Stevens (for himself and Justices Souter, Ginsburg and Breyer) and Justice Breyer (for himself and Justices Stevens, Souter, and Ginsburg).  (Apparently Justice Scalia is too much of a gentleman to have reminded the dissenters that they, too, employed an Originalist-type methodology, but doubtless only as a matter of convenience to justify their losing “militia” argument.)


Scalia’s opinion is also a ringing endorsement of the individual rights view of the Constitution and, in its rejection of the dissenters “militia” and “balancing” arguments, a repudiation of the collectivist approach to the enumerated and unenumerated rights of the first nine amendments.  In this regard Scalia wrote that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”  In other words, when the founders wrote, and the states approved, the Second Amendment (as with the entire Bill of Rights), they removed from the other two branches all power to prevent American citizens from using firearms to defend their homes.


Also very important is that Scalia’s opinion makes clear that subsidiary questions about the scope of the Second Amendment right enunciated by the Court in Heller will in the future be decided by Originalist principles, not, as Justice Breyer’s dissent argued, on the basis of a cultural/social balancing act, with the justices holding the scale.


Because Heller dealt with one of the most sensitive constitutional/cultural issues in America today, for the past several days the print, broadcast, and Internet media have understandably been saturated with news and commentary about the decision.


Unfortunately, much of it has been over the top, like the statement by the founder of the Second Amendment Foundation: “This ruling also makes it abundantly clear that laws which ban the possession of firearms, or make it simply impossible through regulation for citizens to exercise their right to keep and bear arms, are unconstitutional and cannot stand.”

According to him, then, under the Heller decision paroled armed robbers can own machine guns.

Despite the hyperbole, SAF’s founder really knows what Heller actually decided, but many others—among them most laypersons and even many lawyers—do not.  The reason is that like other federal and state appellate courts the Supreme Court of the United States can decide only the specific issue before it, and in Heller that was very limited. 

To make the point, here’s an extreme example: In a case presenting the question of whether it’s cruel and unusual punishment to deny vegetarians special food in prison, the Court could not properly rule on the constitutionality of capital punishment. 


In many appellate court opinions, however, one often finds rambling discourses about all sorts of things that have little or nothing to do with the facts and law of the case at hand, let alone the actual issue to be decided: irrelevant facts, extraneous history, faulty reasoning, inapplicable precedents. 


Sometimes, an appellate opinion will even purport to make a ruling despite it lacking any basis in the facts of the case and not resolving the actual issue before that court.


Lawyers often refer to these discourses and rulings as obiter dicta (from the Latin, meaning “a remark in passing; a casual observation”; or in law, “something said by the judge while giving judgment, that is not essential to the decision”).

Thus, in the vegetarian prisoner example, if Justice Souter’s opinion drifted into a discussion about the evils of Seventeenth Century English prisons, and then roamed into Fifteenth Century capital punishment, and then segued into how the Eighth Amendment probably barred capital punishment, all of that discourse would be (among other things!) dicta. 


It’s important to understand this phenomenon of dicta because it underscores the necessity of focusing narrowly on exactly what appellate courts are being asked to decide.


Now to the Heller decision.


The first thing Justice Scalia did in his opinion was to lay out what the case was all about.  He explained what the District of Columbia law prohibited, what the aggrieved citizen (Mr. Heller) was seeking, what decision the trial court made, and how the Court of Appeals viewed the case and what it ruled.  (My comments are bracketed.  Asterisks indicate omissions of at least one sentence.)


The District of Columbia generally prohibits the possession of handguns.  It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. * * * Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. * * *  


District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns [e.g., rifles], “unloaded and disassembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. * * *


. . . Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty at the FederalJudicialCenter.  He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused.  He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing [1] the bar on the registration of handguns, [2] the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and [3] the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.” * * *


The District Court dismissed [Heller’s] complaint . . . . 


The Court of Appeals for the District of Columbia Circuit, [narrowly] construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense [my emphasis] reversed . . . .  It held that the Second Amendment protects an individual 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. (My emphasis)


Based on the D.C. law’s prohibitions, Heller’s application to register a handgun, the trial court’s decision, and the Court of Appeals’ construction of what the issue was and its resolution, the first sentence of Justice Scalia’s opinion was: “We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.  (My emphasis.)


Well, not exactly.


A mere two paragraphs later Scalia would write that the Court of Appeals had held that “the Second Amendment protects an individual 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.”  (My emphasis.) So why was his first sentence limited to “usable handguns”?


In our search for the issue actually before the Heller Court, and to understand what that case actually decided, we have to look to the penultimate paragraph of Justice Scalia’s opinion for the Court, some sixty-three pages later: “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.  (My emphasis.)


This, and only this, is what the Supreme Court majority decided in District of Columbia v. Heller: the handgun ban and the inoperative requirement for home possession.

Because Heller is hedged by those four elements—“home,” “lawful,” “immediate,” “self-defense”—and, as I show below, because other important questions remain unanswered, judicial interpretation of the Second Amendment rather than ending with Heller has just begun.


For example, Part III of Justice Scalia’s opinion states that:


Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. * * * For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. * * * 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. We also recognize another important limitation on the right to keep and carry arms. [An earlier Supreme Court case] said, as we have explained, that the sorts of weapons protected were those “in common use at the time [1791].” * * * We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” (My emphasis.)


Thus we are reminded that “like most rights” the gun “right” acknowledged by the Heller majority can be regulated, even restricted.  It is regulation and restriction—and definitions of “home,” “lawful,” “immediate,” and “self-defense”—which will give rise to the many Second Amendment cases yet to come, concerning who can possess firearms, what kind of weapons they can be, where guns can be carried, when they can be sold and to whom, whether outdoors they must be in plain view, and more.


As important as are these questions, and the many others implied in them, there are two more that are even more so.


One is what “standard of review” is the court to apply to, say, a New York law, requiring all handguns carried outdoors to be concealed lest the public be scared by being exposed to all that hardware. 


Although “standard of review” is a technical question for judges and constitutional lawyers, its answer could determine just how much of a gun right really exists.  If the courts’ “standard of review” of gun laws is very deferential, such a New York law would probably be upheld because the state had a good reason to enact it, and the regulation/restriction did not bite too deep into the Heller-established right.  If on the other hand, the courts’ “standard of review” is much stricter and the Heller-established right is really a solid, virtually untouchable right, such a New York law would be considered too regulatory/restrictive and held unconstitutional.


As important as is this standard of review question, an even more vital Second Amendment issue is buried in footnote 23 of Justice Scalia’s opinion.  It raises the “incorporation” issue (see www.henrymarkholzer.com at “50 of the Worst S/Ct Decs” in the Table of Contents under the case of Gitlow v. New York, for a discussion of the Incorporation Doctrine).


In footnote 23 Justice Scalia’s majority opinion expressly left open “a question not presented by this case”—one, when answered, will be at least as important as the Heller decision itself: Does the Second Amendment apply to the states by “incorporation” through the Fourteenth Amendment?

Given the virtually wholesale incorporation of the entire Bill of Rights to the states already through the Due Process Clause of the Fourteenth Amendment—e.g., speech, press, religion, counsel, search and seizure, self-incrimination—it is likely that the answer to the Second Amendment “incorporation” question will be affirmative.  If so, given the many unanswered questions raised by Heller, and all the state anti-gun legislation already on the books, Second Amendment litigation could well become a growth industry for constitutional lawyers.