The Heller decision


Firearm & Gun Forum - FireArmsTalk.com > General Firearms Forums > Legal and Activism > The Heller decision

Reply
 
LinkBack Thread Tools Display Modes
Old 03-14-2013, 10:54 PM   #1
Feedback Score: 0 reviews
 
jismail's Avatar
 
Join Date: Jun 2007
Location: Bay Area, California
Posts: 234
Liked 35 Times on 17 Posts
Likes Given: 4

Default The Heller decision

Here in California, the anti-gun groups are starting to quote the Heller decsion in their arguments and in the media.

I thought a quick review of the decision and 2nd Ammendment background would be valuable to all gun advocates.

Full text here: http://www.law.cornell.edu/supct/html/07-290.ZO.html


Excerpt:

SUPREME COURT OF THE UNITED STATES

DISTRICT OF COLUMBIA, et al., PETITIONERS v.
DICK ANTHONY HELLER

on writ of certiorari to the united states court ofappeals for the district of columbia circuit

--------------------------------------------------------------------------------

[June 26, 2008]

--------------------------------------------------------------------------------

Justice Scalia delivered the opinion of the Court.

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

I

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. See D. C. Code §§7–2501.01(12), 7–2502.01(a), 7–2502.02(a)(4) (2001). 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. See §§22–4504(a), 22–4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled 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. See §7–2507.02.1

Respondent Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. 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 the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.” App. 59a. The District Court dismissed respondent’s complaint, see Parker v. District of Columbia, 311 F. Supp. 2d 103, 109 (2004). The Court of Appeals for the District of Columbia Circuit, 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,2 reversed, see Parker v. District of Columbia, 478 F. 3d 370, 401 (2007). 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. See id., at 395, 399–401. The Court of Appeals directed the District Court to enter summary judgment for respondent.

We granted certiorari. 552 U. S. ___ (2007).

II

We turn first to the meaning of the Second Amendment .

A

The Second Amendment provides: “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.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931) ; see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11–12; post, at 1 (Stevens, J., dissenting). Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2–4.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “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.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment , 73 N. Y. U. L. Rev. 793, 814–821 (1998).

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).3“ ‘It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.4

1. Operative Clause.

a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment ’s Assembly-and-Petition Clause and in the Fourth Amendment ’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.5

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.6

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990) :

“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment , and by the First and Second Amendment s, and to whom rights and powers are reserved in the Ninth and Tenth Amendment s, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

b. “Keep and bear Arms.” We move now from the holder of the right—“the people”—to the substance of the right: “to keep and bear Arms.”

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added).

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689) (“[N]o Papist … shall or may have or keep in his House … any Arms … ”); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar). Petitioners point to militia laws of the founding period that required militia members to “keep” arms in connection with militia service, and they conclude from this that the phrase “keep Arms” has a militia-related connotation. See Brief for Petitioners 16–17 (citing laws of Delaware, New Jersey, and Virginia). This is rather like saying that, since there are many statutes that authorize aggrieved employees to “file complaints” with federal agencies, the phrase “file complaints” has an employment-related connotation. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.7

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998) , in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment… indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment : Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” 8 It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) (“Thus the right of self-defence [is] guaranteed by the [Ohio] constitution”); see also id., at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.9 These provisions demonstrate—again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia.

The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” See Linguists’ Brief 18; post, at 11 (Stevens, J., dissenting). But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,” which was in turn followed by the target of the hostilities. See 2 Oxford 21. (That is how, for example, our Declaration of Independence ¶28, used the phrase: “He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country … .”) Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. See Linguists’ Brief 18–23. Without the preposition, “bear arms” normally meant (as it continues to mean today) what Justice Ginsburg’s opinion in Muscarello said.



__________________
jismail is offline  
2
People Like This 
Reply With Quote

Join FirearmsTalk.com Today - It's Free!

Are you a firearms enthusiast? Then we hope you will join the community. You will gain access to post, create threads, private message, upload images, join groups and more.

Firearms Talk is owned and operated by fellow firearms enthusiasts. We strive to offer a non-commercial community to learn and share information.

Join FirearmsTalk.com Today! - Click Here


Old 03-14-2013, 11:24 PM   #2
Feedback Score: 0 reviews
 
BigByrd47119's Avatar
 
Join Date: Jul 2009
Location: Detroit, MI
Posts: 3,401
Liked 1102 Times on 677 Posts
Likes Given: 2389

Default

Thank you for posting!

If one has the ability to mutilate the Constitution, it should come as no surprise the ability to do the same to a court ruling.



__________________

“Let it not be said that no one cared, that no one objected once it’s realized that our liberties and wealth are in jeopardy.”
---Ron Paul

"He who passively accepts evil is as much involved in it as he who helps to perpetuate it."
---Dr. Martin Luther King

"If you think we are free today, you know nothing about tyranny and even less about freedom."
---Tom Braun

BigByrd47119 is offline  
 
Reply With Quote
Old 03-14-2013, 11:42 PM   #3
Retired
FTF_SUPPORTER.png
Feedback Score: 0 reviews
 
danf_fl's Avatar
 
Join Date: Apr 2010
Location: LA (Lower Alabama),FL
Posts: 10,588
Liked 3114 Times on 1789 Posts
Likes Given: 1326

Default

Anti gun groups are quoting the text that allows for the individual right to keep a firearm?

What am I missing?

__________________

Amendment II:
"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."

Life Member NRA
Life Member NAHC
Former President of the ECPT (Eifel Combat Pistol Team)

danf_fl is offline  
 
Reply With Quote
Old 03-14-2013, 11:44 PM   #4
Feedback Score: 0 reviews
 
jismail's Avatar
 
Join Date: Jun 2007
Location: Bay Area, California
Posts: 234
Liked 35 Times on 17 Posts
Likes Given: 4

Default

As you can see from this reponse letter to me from Dianne Feinstein, they are finding sections in the full text that supports their arguments on the 2nd ammendment that allows them to impose restrictions on what type of firearm can be owned and under what conditions.




--------------------------------------------------------------------------------------------------


Dear Jeff :



Thank you for contacting me to share your opposition to assault weapons legislation. I respect your opinion on this important issue and welcome the opportunity to provide my point of view.



Mass shootings are a serious problem in our country, and I have watched this problem get worse and worse over the 40 years I have been in public life. From the 1966 shooting rampage at the University of Texas that killed 14 people and wounded 32 others, to the Newtown massacre that killed 20 children and 6 school teachers and faculty, I have seen more and more of these killings. I have had families tell me that they no longer feel safe in a mall, in a movie theater, in their business, and in other public places, because these deadly weapons are so readily available. These assault weapons too often fall into the hands of grievance killers, juveniles, gangs, and the deranged.



I recognize that the Second Amendment provides an individual right to bear arms, but I do not believe that right is unlimited or that it precludes taking action to prevent mass shootings. Indeed, in the same Supreme Court decision that recognized the individual right to bear arms , District of Columbia v. Heller , the Court also held that this right, like other constitutional rights, is not unlimited. That is why assault weapons bans have consistently been upheld in the courts, both before and after the Heller decision. I believe regulation of these weapons is appropriate.




Once again, thank you for your letter. Although we may disagree, I appreciate hearing from you and will be mindful of your thoughts as the debate on this issue continues. If you have any additional comments or questions, please do not hesitate to contact my Washington, D.C. office at (202) 224-3841.




Sincerely yours,


Dianne Feinstein
United States Senator

__________________

Last edited by jismail; 03-14-2013 at 11:53 PM.
jismail is offline  
BigByrd47119 Likes This 
Reply With Quote
Old 03-14-2013, 11:47 PM   #5
Feedback Score: 0 reviews
 
BigByrd47119's Avatar
 
Join Date: Jul 2009
Location: Detroit, MI
Posts: 3,401
Liked 1102 Times on 677 Posts
Likes Given: 2389

Default

^^^This^^^

__________________

“Let it not be said that no one cared, that no one objected once it’s realized that our liberties and wealth are in jeopardy.”
---Ron Paul

"He who passively accepts evil is as much involved in it as he who helps to perpetuate it."
---Dr. Martin Luther King

"If you think we are free today, you know nothing about tyranny and even less about freedom."
---Tom Braun

BigByrd47119 is offline  
 
Reply With Quote
Old 03-14-2013, 11:55 PM   #6
Feedback Score: 0 reviews
 
jismail's Avatar
 
Join Date: Jun 2007
Location: Bay Area, California
Posts: 234
Liked 35 Times on 17 Posts
Likes Given: 4

Default More fun reading...

{deleted} .

__________________

Last edited by jismail; 03-15-2013 at 07:25 PM.
jismail is offline  
 
Reply With Quote
Old 03-15-2013, 12:08 AM   #7
Feedback Score: 0 reviews
 
jismail's Avatar
 
Join Date: Jun 2007
Location: Bay Area, California
Posts: 234
Liked 35 Times on 17 Posts
Likes Given: 4

Default

In todays news...:

-----------------------------------------
Earlier today, the Senate Judiciary Committee approved legislation banning assault weapons and high-capacity ammunition clips.

The legislation is written by Sen. Dianne Feinstein, a Democrat from California, and as expected, the bill was sent to the full senate with a strictly party-line vote.


Feinstein said that her legislation would pass the tests set fort in the Supreme Court's District of Columbia v. Heller, for which Justice Antonin Scalia — one of the court's most conservative judges — wrote the majority opinion for.

Tom Goldstein of SCOTUSblog writes that with the decision, the court said the Second Amendment provides individuals a "right to possess a basic firearm (the line drawn is unclear, but is basically those weapons in general lawful use and does not extend to automatic weapons) and to use that firearm in self-defense."



__________________

Last edited by jismail; 03-15-2013 at 07:24 PM.
jismail is offline  
 
Reply With Quote
Reply

Thread Tools
Display Modes


Similar Threads
Thread Thread Starter Firearms Forum Replies Last Post
In Refutation of the Four Heller Exceptions KalashnikovJosh Legal and Activism 10 12-30-2011 08:41 PM
Heller Decision Extended to the States Jesse17 Legal and Activism 2 03-31-2011 09:17 PM
Whatever Happened To Heller V. Washington DC ??? SlamFire Politics, Religion and Controversy 7 03-30-2009 05:50 PM
The Heller Decision Vs. Executive Order? billt Politics, Religion and Controversy 12 11-25-2008 10:07 PM
McCain Reacts to Heller Decision tracker Legal and Activism 3 06-28-2008 05:17 AM