Dr. Charles E. Rice's September 8, 2008 ND Observer Column

Charles E. Rice

Right or Wrong?

September 8, 2008

Since 1982, Kennesaw, an Atlanta suburb, has required every head of a household to own a gun and ammunition, with an exemption for those who conscientiously object. One effect of the enactment was the appearance of yard signs: "Never Mind the Dog—Beware of Owner." Another was that the Kennesaw crime rate dropped and remains well below the national average.

What brings Kennesaw to mind is District of Columbia v. Heller, decided last June, the Supreme Court's first in-depth examination of the Second Amendment. That 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." The Court held, 5-4, that the District of Columbia's "ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." The Heller ruling was hailed by many as a decisive victory for "gun rights." First impressions, however, can be misleading.

One lesson here is that saying too much can get you into trouble. The Second Amendment is the only one in the Bill of Rights with a prefatory clause stating its purpose. That "militia" clause, over the years, gave rise to endless debate, which the Court settled in Heller. In the majority opinion, written by Justice Antonin Scalia, the Court held that the amendment "protects an individual’s right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home." The dissenters argued that the Amendment protects only the right to possess and carry a firearm in connection with militia service. The ruling, however, did not settle much beyond that point.

"[T]he Second Amendment," said the Court, "codified a pre-existing right" which developed in England as a protection against government. "[T]he Stuart Kings Charles II and James II," said Scalia, suppressed political dissent "in part by disarming their opponents. .... [T]he Catholic James II had ordered... disarmaments of [Protestant] regions." The English Bill of Rights of 1689, the predecessor of the Second Amendment, reacted by providing "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law." This was, said the Court, "clearly an individual right, having nothing whatever to do with service in a militia."

When the Second Amendment was adopted, the "militia," said the Court, consisted of "those who were male, able-bodied, and within a certain age range." The Amendment, wrote Scalia, "helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down…. [T]he… prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. [It] does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution."

The law struck down in Heller totally forbade handgun possession in the home. It also required that any lawful firearm in the home be disassembled, or disabled by a trigger lock, at all times. But the ruling left the door open for restrictive regulation rather than prohibition. The Court said the Second Amendment "does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." The Court also noted approvingly the "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

The gun issue is far from settled. The District of Columbia reacted to Heller by imposing a regulation practically as restrictive as the one the Court struck down. A new appeal is underway. The Supreme Court has held that most of the protections in the Bill of Rights are binding on the states and local governments as well as on the federal government. But in Heller the Court interpreted earlier cases to establish that “the Second Amendment applies only to the Federal Government.” Future litigation may turn on provisions in state constitutions comparable to that amendment. Justice Breyer’s dissent in Heller highlighted also the uncertainty that still surrounds the level of judicial scrutiny that must be applied in Second Amendment cases.

So what can we learn from Heller? It is far from a mandate that every American community become a Dodge City or even a Kennesaw. On Supreme Court decisions, and everything else, don’t jump to conclusions without reading the fine print.

Prof. Emeritus Rice is on the Law School faculty. He may be reached at 633-4415 or rice.1@nd.edu.