Guns out of Heller

Two weeks ago, the U.S. Supreme Court in the case of McDonald v. City of Chicago decided by a 5-4 decision that you have a right to a handgun in your home. However, the legal groundwork for that decision was laid two years ago in the landmark case of the District of Columbia v. Heller. In this case, the District of Columbia, a place subject to only the U.S. Constitution, rather than any state constitution, had a law that banned unregistered handgun possession and required a trigger lock be used on all firearms. Dick Heller, a special police officer, applied for a permit to register his handgun and was denied. He sued, seeking to stop the District from denying him a permit; moreover, he argued that the trigger lock device made the firearm useless for the purposes of self-defense.

In this case, the majority held that the Constitution protected the individual’s right to own a gun. They determined the Second Amendment essentially acted like a doomsday clause, wherein if society (police, etc.) could not prevent violence and could no longer protect the population, then the individual had the right to keep and bear arms for protection of family and home. The decision discussed the following issues.

The Second Amendment reads, “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.” The Court broke the amendment into two parts, the prefatory clause and the operative clause. The prefatory clause - “A well regulated Militia, being necessary to the security of a free State” - announces a purpose and clarifies the following operative clause - “the right of the people to keep and bear Arms, shall not be infringed.” Critical to the Court’s ruling was that the prefatory clause did not limit the amendment to a militia (government military body). Rather, that the phrase “right of the people” was used two other times in the original Constitution (First and Fourth Amendments) and understood to mean an individual right. Therefore, the same phrasing should have the same meaning throughout the Constitution. The majority opinion of the Court wrote that the Constitution had to be voted on by the people and hence had been written in a way to be understood by the people rather than being unnecessarily complicated.

The Court then needed to decide the meaning of the operative clause - “the right of the people to keep and bear Arms, shall not be infringed.” For this, the Court turned to history and discussed the historical use of denying individual gun rights to control sectors of the population. In the 1670s, James II, a Catholic, sought to disarm Protestants. In 1689, the English Bill of Rights enunciated that “that the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” Once again, in the two decades prior to the Constitution, George III attempted to disarm Americans to control them, but was unable to take this right away. Thus the Court determined this right was granted prior to the Revolution and was widely viewed as an individual right, not a right limited to those in the military. Basically, the Court stated the Second Amendment simply codified pre-existing rights that could not be infringed.

The dissent of the Court argued that bearing arms only referred to military use, and that no one had a private, individual right to carry a firearm. Rather, the point of the Second Amendment was to protect individual states’ militias from being overridden by a standing federal government force. Most of the Court’s treatment of the Second Amendment in the post-Civil War era was to limit the interpretation of the Second Amendment to the military service. Multiple incidences of gun legislation limited the possession of certain firearms and the place where they could be held. Further, the Court stated standing state armies were sanctioned by the Founding Fathers in 1792, and since that time, the Second Amendment has not been seriously viewed as an individual right rather one to protect these state bodies. Therefore, the Second Amendment, according to the dissent, is a bygone issue that history has left far behind, and that the majority was simply creating new rights and new law.

In the next article of this three-part series, I will delve further into the most recent McDonald v. City of Chicago decision that guaranteed that states could not infringe on the Second Amendment right to keep and bear arms.

Erik J. Honkanen, Law Office of Erik J. Honkanen, S.C., U.S. Bank Plaza, 230 1st St. South, STE 101, Virginia, MN 55792, 218- 749-3047, erik@honkanenlaw.com.