With the Supreme Court Poised to Redefine the Right to Bear Arms, Far-Reaching Questions Loom

By MICHAEL C. DORF
Monday, Mar. 24, 2008

Last week, the Supreme Court heard oral argument in District of Columbia v. Heller. The case presents the question whether the District's law banning nearly all handguns, and regulating the storage of licensed shotguns and rifles, violates the Second Amendment. To resolve that question will require the Court to enter a long-simmering debate among academics and activists.

The Second Amendment provides as follows: "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."

Emphasizing the introductory language, the District and its allies argue that the right "to keep and bear Arms" exists only in the context of service in a state militia. In contrast, offering a view of the militia as indistinct from the individuals who comprise it, plaintiff Dick Anthony Heller and his allies read what they call the "operative clause" --that is, the language following the Amendment's second comma--as protecting a right to private possession and use of firearms for self-defense, regardless of one's service in an organized militia.

The questions Justices ask at oral argument are not always a reliable guide to how they will ultimately vote to resolve a case. Nonetheless, no one seemed to be playing devil's advocate last week. Based on my reading of the oral argument transcript, four Justices--Chief Justice Roberts and Justices Scalia, Kennedy, and Alito--endorsed the private use view favored by Heller. Justice Thomas almost never speaks at oral argument, and last week was no exception, but he can nonetheless be counted as a very likely vote for Heller, based on his prior statements on the Second Amendment and his general ideological leanings.

Accordingly, the Supreme Court appears poised to rule that the Second Amendment protects a private right to possess and use firearms. In doing so, it will raise a host of new questions, including: What counts as a protected "Arm?" To whom may government deny the right to possess and use firearms? What standard of judicial scrutiny applies to laws burdening that right? Does the right afford the same protection against regulation or prohibition by the states as it affords against regulation or prohibition by the federal government?

Chief Justice Roberts frequently espouses a form of methodological conservatism under which, he suggests, the Supreme Court should eschew broad decisions, instead sticking narrowly to the facts of each case before it. He made the same suggestion during last week's oral argument. Resisting Solicitor General Paul Clement's argument for a "reasonableness" standard for evaluating firearms restrictions, the Chief Justice suggested, instead, that the case could be resolved without deciding upon any general standard and without addressing the broader implications of the decision.

As I explained in an earlier column, there are sound reasons to worry that the methodological conservatism Chief Justice Roberts favors carries hidden costs for the legal system as a whole. But even if one were to favor methodological conservatism in general, there are features of the Heller case in particular that will render it impossible for the Court to resolve the case fairly without addressing far-reaching questions about the permissibility of gun control.

If the Court Finds a Private Constitutional Right to Possess and Use Firearms, Must it Strike Down the District's Law?

Suppose the Supreme Court finds that the Second Amendment does protect an individual right to possess and use firearms. Does it follow that the District's law is unconstitutional?

Not necessarily. Although the District bans nearly all handguns, it does permit licensed long guns--shotguns and rifles--in the home, so long as they are stored under trigger lock or disassembled. Heller argues that the latter restriction effectively prevents him from ready access to a working firearm to use against an intruder, but the District counters that it would construe its law, if challenged, to permit self-defense with a licensed long gun. And, says the District, if the case were remanded to the trial court, it could prove that the storage restrictions permit a long-gun owner to have a working firearm ready in seconds if necessary.

Yet even assuming that the District's law does, in fact, permit working long guns to be available for self-defense against an attacker, there remains the question of the validity of the handgun ban component of the District's law. The Court of Appeals decision in the Heller case said that the Second Amendment right is subject to reasonable regulation but that a near-complete ban on handguns is no mere regulation. (The law exempts retired police officers and handguns that were licensed prior to 1976.) Because modern handguns are "lineal descendants" of the pistols that militiamen carried in the Eighteenth Century, and because they are in common use, the appeals court reasoned that the District ban could not be sustained.

The District argued before the Supreme Court that the particular dangers posed by handguns--their portability, concealability, and ease of use by children--justify a ban. The District received some support for this argument from Solicitor General Paul Clement, who worried that the appeals court's reasoning would also invalidate the federal machine gun ban, as machine guns are standard-issue firearms in the modern armed services.

What is the Standard of Review?

Who will win this argument? That may depend on what standard of judicial review applies to firearms restrictions. Although the appeals court inquired into whether the District ban is "reasonable," other aspects of its opinion suggested that a standard more like the "strict scrutiny" applicable to restrictions on free speech should apply. If that is indeed the standard, then, Heller argues, just as the government cannot ban an entire medium of communication on the theory that it leaves open other media, so too, the government cannot ban an entire category of firearms.

That's not a perfect analogy. As Walter Dellinger said during the oral argument for the District, there is a key difference between freedom of speech and freedom to arm oneself. We generally think that more speech is better than less speech, so that a law restricting people to possession of no more than five books would be obviously invalid. By contrast, Dellinger explained, the point of an individual right to arms is to have weaponry sufficient to defend oneself--not as much weaponry as one would like to stockpile. Five (or even one or two) working firearms would typically suffice for self-defense.

Chief Justice Roberts rightly observed during the oral argument that terms like "strict scrutiny" do not appear in the Constitution but were the product of numerous free speech cases. He also expressed the view that this dispute --the first Second Amendment case the Court has confronted in almost seventy years--could be resolved without the articulation of "an all-encompassing standard."

Yet the question whether the District handgun ban leaves residents with adequate means of armed self-defense depends on the resolution of important factual questions, such as how quickly trigger locks can be removed, or long guns assembled. It also turns on normative questions such as whether citizens have a right to armed self-defense outside the home. Which side bears the burden of proof? By what measure? It is hard to see how these issues can be resolved without first defining some standard--even if not an all-encompassing one.

Does the Second Amendment Restrict the States as Well as the Federal Government?

The Heller case involves a federal restriction on gun ownership and possession. It therefore does not directly present the question of whether the Second Amendment limits state laws regulating firearms. However, a victory for Heller will likely inspire putative gun owners in other jurisdictions to challenge restrictive gun laws passed by states and cities.

Many state constitutions protect an individual right of firearm possession, but some do not. Will stringent handgun licensing requirements--such as those in force in New York City--be vulnerable to Second Amendment challenge?

The Supreme Court has held that most of the provisions of the first eight amendments to the Constitution--which originally only restricted the federal government--were made applicable to state and local laws by operation of the Fourteenth Amendment. In lawyer's jargon, we say that the Fourteenth Amendment "incorporates" most of the provisions of the Bill of Rights.

Most, but not all. For example, the first clause of the Seventh Amendment, which guarantees the right to a jury trial in lawsuits seeking more than twenty dollars in damages, has not been incorporated against the states. Likewise, two Nineteenth Century decisions say that the Second Amendment does not apply against the states.

There is a twist, however: Those Nineteenth Century cases were decided before the Supreme Court began to take seriously the notion that the Fourteenth Amendment incorporates any of the provisions of the Bill of Rights. Accordingly, it is an open question whether the criteria the Court has used in its modern incorporation cases favor or disfavor incorporation of the Second Amendment.

And that question is presented in the Heller case, at least indirectly. Federal power over the District of Columbia, Dellinger argued for the District, is not the same as federal power over the rest of the country. With respect to the District, the federal government (and the District itself, via the Home Rule Act) stands in the shoes of a state.

Accordingly, if the Second Amendment is not incorporated against the states via the Fourteenth Amendment, the District says, then the Second Amendment also does not limit the ability of the federal government to legislate for the District of Columbia. It would be extraordinarily anomalous, the District argues, for every state in the Union to have the power to regulate firearms in its urban areas, but for the federal government to lack that power with respect to the nation's capital.

The Court can reject this argument, but only by saying that the Second Amendment in fact is incorporated against the states. If the Second Amendment is indeed incorporated, then the Court could avoid the anomaly of denying the federal government, in D.C., a power that states would still possess: the authority to impose serious restrictions on firearms. To strike down the D.C. law, in other words, the Court would have to first find that the Fourteenth Amendment does incorporate the Second Amendment.

What the Court Will Actually Do

The foregoing considerations show that the Heller case is not merely the modern Court's first entry into the Second Amendment area. It is likely to be the leading case on the matter for quite some time.

Granted, the Justices could doubtless find some way to duck the hard questions that will arise should they find a personal right of armed self-defense under the Second Amendment. The Court might, for example, resolve the core issue and then punt the matter to the lower courts via remand. Or the Court could write a less-than-fully-forthright opinion invalidating the District's ban without coming to grips with the arguments about the applicable standard and incorporation.

Dodging the key questions that Heller presents would not be an exercise in methodological conservatism, however. Chief Justice Roberts is fond of saying that if it is not necessary to decide an issue to resolve a case, then it is necessary not to decide that issue. Maybe so, but the converse is undoubtedly, indeed tautologically, true: If it is necessary to decide an issue to resolve a case, then it is necessary to decide that issue.

The apparent inclination of five Justices to rule that the Second Amendment protects a personal right, unconnected to militia service, obligates them to resolve far-reaching questions about the scope of that right. Whether they fulfill that obligation, or dodge it, remains to be seen.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org. He worked as a lawyer on one of the amicus briefs in support of the District in the Heller case.