Dick Heller Case Summary

The original case had six plaintiffs but the plaintiff that carried the case to the U.S. Supreme Court was Dick Heller. Heller was a special police officer in the District of Columbia. Heller was authorized to carry a firearm on duty, but not at home. Heller's neighborhood was experiencing a rise in crime and Heller naturally wanted to keep a handgun for protection at his home. Unfortunately, for Mr. Heller, the District of Columbia banned the possession of handguns. The D.C. law made it illegal to carry an unregistered firearm and barred the registration of handguns, which effectively creating a prohibition on pistols. The Chief of Police was endowed with the power to issue licenses with a one-year term, but any legal firearms had to kept

unloaded and disassembled or bound by a trigger lock or similar cable lock system. (Think LegalEase, 2016)
The District of Columbia had a good argument for a why they considered a ban on handguns to be reasonable. Handguns are mobile and can easily be concealed and thereby taken into schools, the metro, and government buildings. The majority of violent crimes committed in the district were done so with a handgun. It was the hope of the city council that by passing the law prohibiting the possession of handguns and strictly restricting firearms functionality in the home, that the trend of violent armed crime would be curved.
Heller applied for a handgun license for self-defense but was denied. Heller filed a complaint with the District in February of 2003 on grounds that the District of Columbia violated his Second Amendment rights and the District Court dismissed the case on March 31, 2004. The D.C. Court found that the Second Amendment does not create an individual right to arms unrelated to service in a militia such as the State’s National Guard. Heller appealed and the D.C. Circuit Court of Appeals reversed the lower court's decision on Mar 9, 2007, with the decision that the Second Amendment was an individual right to keep and bear arms, and that the District of Columbia's laws by creating a prohibition of the possession of handguns was a violation of that right. A writ of certiorari was granted on November 20, 2007, and the case was finally decided by the U.S. Supreme Court on June 26, 2008, with a majority of five to four. The fundamental legal issue relied on the court’s decision on whether or not the District of Columbia’s law restricting firearm ownership and a prohibition on the possession of handguns was unconstitutional in respect to the Second Amendment. (Think LegalEase, 2016)
Every word of the Amendment was carefully interpreted by the Supreme Court Justices. The late Justice Antonin Scalia, the author of the court's majority opinion subscribes to the Textualism legal theory. Textualism often confused with Originalism, interprets to the letter of the law as it was meant when it was ratified. Under this legal theory, the text is analyzed to its contemporaneously common meaning. The purpose of this type of interpretation is to best represent what the people of the time voted for, to do otherwise would be to change the will of the people (Scalia, 2012).
It is not the role of the Supreme Court to alter the law, to do so would be undemocratic. The United States Government is for the people by the people. In our self-governing society, the people decide the laws that they are to abide by. For the court to interpret the text in a broader way then what was originally intended in order to adapt the laws to modern times or to adhered to political pressure would take away the choice of the people. If a new law or Amendment is needed it is left to the people's elected officials in Congress to bring about new legislation and not unelected appointed Supreme Court justices.
The Second Amendment is written as “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.” (Convention, 1788). The Second Amendment is naturally divided into two parts, its prefatory clause, and its operative clause. The Amendment could be rephrased according to a contemporary treatise which was cited by the court to be read as “Because a well-regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” (Tiffany, 1867).
The court’s opinion started its in-depth analysis with the operational clause. First making clear of the phrase “Right of the people”. The phrase "Right of the people" is used two other times in the Bill of Rights; the First and Fourth Amendments. In each use of the phrase, it is used to refer to an individual's right and not a collective right of a group. Other provisions in the Constitution such as the preamble and Tenth Amendment do refer to "the people" as a collective group, but they do so with regard to reserved or excised powers and not of rights. It would be foolish to think of the freedom of speech or religion to be anything other an individual right and given the duplicate language and common law pre-existing nature of the rights, it is understood that Second Amendment is the same. It was argued in the oral arguments of the court by the attorney for the District of Columbia Walter Dellinger and brought up again by the Paul Clement the Solicitor General that "The People" as defined by the case "United States v. Verdugo-Urquidez" is a reference to the entire citizenry and therefore the phrase as written in the Second Amendment constitutes a state right for the purposes of a militia (United States v. Verdugo-Urquidez, 1990). This view was shared by the dissenting opinion which was authored by Justice Stevens. Justice Scalia wrote that Justice Stevens is “Dead Wrong” in his interpretation that the freedom of speech is inherently a collective right (District of Columbia v. Heller, 2008).
Moving along in the court’s interpretation of the operative clause attention is brought to the phrase “Keep and bear arms”. The American Second Amendment is an expansion of the pre-existing right found in Blackstone English common law, which is a right of Protestants to keep and bear arms for their defense (English Bill of Rights 1689, 2016). The English provision is useful for such purposes of defining the scope of “keep and bear arms” means. The term “arms” as written by James Madison means weapons of defense that can be taken into the hands. “Arms” is not restricted to weapons designed for military use and can include bow and arrows. The term cannot include for example a cannon since it cannot be taken up into the hands. The Textualism interpretation does not restrict the arms to those that existed at the time of ratification and using contemporaneous definitions of the time period does include modern weapons that can be carried in hands. This interpretation is similar to the freedom speech including modern means of communication.
To “keep” means simply to possess. The people have the right to possess weapons. The term “bear” is somewhat contested. The majority opinion is that the term is defined to mean carry. The dissenting opinion would be to restrict the term “carry” to confines of a militia. The dissenting interpretation of a militia connection is due the use of the term used in military documents of the time. Justice Scalia points out that just because the term was used in that particular context does not limit it to that context. Bear was used in other legal contexts, including State constitutions to expressly mean for an individual’s own self-defense (District of Columbia v. Heller, 2008). Of course, if you are selective in your source material to solely military documents to base your opinion on the term, you will undoubtedly be limited to references to a militia.
To agree with the dissenting opinion would be to say that a citizen did not have the natural right to hunt or defend themselves and their families. Given a hypothetical situation where a conscientious objector would like to hunt for food; they would have no right under the Second Amendment to have a firearm to do so if the prefatory clause restricted operative clause to the confines of being able to contribute to the militia or common defense.
In summation, the Supreme Court majority interpretation of the operative clause of the Second Amendment is that of a codified pre-existing right of the individual to process and carry weapons for the purpose of self-defense.

The pre-existing nature of the right stems from the Blackstone English Bill of Rights and the U.S. Constitution only codifies the common law right to make the statement that it shall not be infringed.
The other part of the Second Amendment is the prefatory clause "A well-regulated militia, being necessary to the security of a free state..." (Convention, 1788). The phrase a "Well-regulated Militia" is defined by stare decisis through the case of United States v. Miller to means to be "... comprised of all males physically capable of acting in concert for the common defense. (United States v. Miller, 1939)" The militia is the pool of able-bodied men in which Congress is granted the power to raise an army from and regulate as pre-Article 1, Section 8, Clause 16 would dictate (Convention,

1788).
The phrase "Security of a Free State." is a reference to the country as a whole. The idea of having an able-bodied militia to pool troops from was necessary for being able to raise a capable army effectively in such cases as of an invasion. A capable militia was also thought to be necessary as it whole lessens the need for a large standing federal army, which was a concern of the Anti-Federalists. Anti-Federalists thought that a large standing army would give the federal government too much power, in the second amendment was a provision made to address that concern. The able bodied capable men of the militia also meant to act as the final check in the system of checks and balances. A well-armed society would be more adept to squash tyranny.
The historical context of the revolution and the founding fathers concern over tyrannical governments was paramount when drafting the Bill of Rights. This concept is addressed in courts majority opinion by the late Justice Scalia.
Justice Scalia elaborates in his opinion that like all other rights, the Second Amendment is not unlimited and is open to reasonable restrictions. Restrictions forbidding possession by felons or the mentally ill are acceptable. Laws against carrying firearms into government buildings, and schools also permissible. Laws setting requirements and qualifications on the sale of firearms are also lawful and reasonable restrictions that are not considered to infringe upon the right (District of Columbia v. Heller, 2008).
Given the relationship between the prefatory clause and the operational clause of the individual right to keep and bear arms for the purpose of maintaining a well-regulated militia, it is clear that modern machine guns would better serve this purpose than handguns would. Justice Ginsberg and Kennedy agree that a machine gun is probably more related to a militia in modern days than a pistol is. To not allow machine guns and to allow handguns makes no sense (Oral Arguments for District of Collumbia v. Heller, 2008).
The previously used two prong Miller test developed in the case the United States v. Miller for deciding if a firearm was legal to possess would have a firearm fail if it is not appropriate for common civilian applications such as machine guns. The Miller test is deficient as a limiting principle for the type of arms that may be permitted (United States v. Miller, 1939).
The court discussed that the militia clause was to inform them as to the type of weapon which is protected.

In a militia, the people would bring with them whatever arms that they had available in their civilian life. “The time frame the court must address is always the present" the founding fathers when framing the Constitution wished to preserve the pre-existing right to keep and bear arms; they wished to preserve the right of the people to act as a militia and so there were certainly no plan for a technical obsolescence (Oral Arguments for District of Columbia v. Heller, 2008). The militia being made of the people and understanding that people would bring with them whatever arms they had, the new test would be strict scrutiny based on whatever arms are of common use at the time. Understanding that there are literally millions of handguns owned in the United States a handgun would certainly qualify as being of the common use of the

time.
Under Justice Scalia's Textualism interpretation of the Second Amendment as an individual right to keep and bear arms for self-defense not limited to a militia connection, the court found that the District's prohibition on handguns and laws restricting a firearm's immediate operation a violation of Heller's right. The Supreme Court by a major opinion of five to four affirmed the judgment of the United States Court of Appeals for the District of Columbia Circuit, and in doing so enjoin the District of Columbia to register Dick Heller's handgun and issue him a license to carry his handgun in his home (District of Columbia v. Heller, 2008).