DC Gun Ban is Unconstitutional

September 24, 2010

By Scott E. Mayer

Washington DC--In an historic ruling, the U.S. Supreme Court struck down Washington D.C.'s 32-year-old handgun ban as unconstitutional. The decision was 5 to 4 with Chief Justice John Roberts, and Justices Antonin Scalia, Samuel Alito, Anthony Kennedy, and Clarence Thomas ruling to overturn the ban. The dissenters were Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and David Souter.

In 1976, politicians in Washington D.C. responded to the 135 homicides that year by enacting laws that virtually banned the private possession of handguns, unless they were owned prior to when the law took effect. The law also required that rifles and shotguns in the home be kept unloaded and disassembled or outfitted with a trigger lock. Their reasoning behind the law was that banning handguns in the city would result in fewer killings. The ban did not have that effect.

In 2003, a challenge to the ban was filed on behalf of six District residents, but in a lower court ruling only one plaintiff, Dick A. Heller, an armed security guard, had the legal standing to sue over the ban. Heller sued the District after it rejected his application to keep a handgun in his home for protection.

The issue as it came before the Supreme Court was whether the Second Amendment protects an individual right to own guns, or if that right is tied to service in a state militia.

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."

Writing the Opinion of the Court, Justice Antonin Scalia said that, "the absolute prohibition of handguns held and used for self-defense in the home," was not permitted in the Constitution.

In his dissent, Justice Stephen Breyer wrote, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

Also overturned as part of the ruling was the requirement that long guns be stored disassembled or with trigger locks. The ruling does not immediately end all gun control regulation around the country, as Scalia said in the Court's Opinion, "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not... ."

Gun owners and history buffs should take the time to read this ruling District of Columbia vs. Heller . At 157 pages, the ruling is not something you'll breeze through over a cup of coffee, but it is very readable and easy to understand. Not only is it packed with interesting research on the history of this very important issue and of our country, but it is absolutely fascinating to read how the Justices reached their respective interpretations. For example, one of the great points of argument regarding the Second Amendment are its two clauses: the prefatory, "A well regulated militia...," and operative, "...the right of the people... ." These two parts have been the basis of many gun control arguments, pro and con. Does the phrase "militia" grant rights to the State, or does "the right of the people" designate an individual right?

In the Court's Opinion, Justice Scalia describes the clauses as a purpose and a command and ties them together as I believe the Founding Fathers would have us, "Logic demands that there be a link between the stated purpose and the command...Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation."

Though the Court ruled in favor of gun owners, the dissent is important for us to understand. In stark contrast to the Court Opinion, Justice Stevens writes in the Dissent, " The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment's purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be 'well regulated.'"