The Right to Bear Arms: Title and subTitle BreakConstitutional Law, Politics, and Public Health

In District of Columbia v Heller, The Supreme Court held, for the first time in its history, that the Second Amendment grants an individual right to possess and use firearms for personal use, which encompasses the right to keep a loaded handgun at home for self-defense. Justice Scalia, writing for a bitterly divided court that split 5 to 4 along ideological lines, said that the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”¹

The court thereby struck down a Washington, DC, law that bars registration of a handgun because, Scalia said, it prohibits a class of arms that “Americans overwhelmingly choose for the lawful purpose of self-defense.” The court similarly invalidated Washington, DC’s, requirement that any lawful firearm in the home be disassembled or bound by a trigger lock because it makes it “impossible for citizens to use arms for the core lawful purpose of self-defense.”¹ Heller has rich political symbolism, elevating gun possession to a constitutional entitlement, which will infuse political discourse.

The Second Amendment is divided into a prefatory and an operative clause: “A well regulated Militia, being necessary to the security of a free State [prefatory], the right of the people to keep and bear arms, shall not be infringed [operative].” Scalia ruled that the prefatory clause simply “announces” the purpose of preventing the federal government from eliminating the militia. It does not limit the operative clause, which codifies a “preexisting right” of individual gun ownership for private use. The right, moreover, belongs to “the people,” which means all members of the political community. It is not a collective, but a personal right. The right to “bear arms” is for “offensive or defensive action,” having nothing to do with participation in a militia.

Justice Stevens, in dissent, said the majority opinion declared a “newly found right” which was based on “a strained and unpersuasive reading” of the Second Amendment. The prefatory clause informs both the object and meaning of the Amendment. It limits the right to service in the militia and omits any reference to civilian uses, such as hunting or personal self-defense. The terminology, “the people,” he said, does not expand the scope of the right beyond the militia. The right to “bear arms,” therefore, is tailored to the single purpose identified in the preamble.

The Supreme Court last examined the meaning of the Second Amendment nearly 70 years ago. In United States v Miller, the court upheld a federal requirement to register sawed-off shotguns, reasoning that the amendment should be interpreted narrowly, “with that end [an efficient militia] in view.”² For decades courts and scholars read Miller as affording a collective right to maintain a militia—not a personal right to self-protection. The Supreme Court interpreted Miller as no other court had done before, stating that the Second Amendment fails to protect only “those weapons not typically possessed by law-abiding citizens for lawful purposes, such as shortbarreled shotguns.” In the words of Stevens, the majority exhibited a lack of “respect for the well-settled views of all of our predecessors on the court, and for the rule of law itself.”¹

The Heller ruling struck down a District of Columbia law, so it is unclear whether the decision applies to the states and localities. Under a principle known as incorporation, the Supreme Court has applied most of the Bill of Rights to the states, but on 3 occasions it expressly declined to incorporate the Second Amendment. Nevertheless, Scalia cast doubt on these precedents in a footnote.

Scalia's 64-page opinion parses the language and history of the Second Amendment, with only passing reference to contemporary public safety hazards. His constitutional interpretation is backward looking, locking in place the meaning of the founders in 1791. The Second Amendment's original purpose was to deter government despotism, but individual gun ownership has no such purpose today. Constitutional interpretation, moreover, should not remain static but rather reflect modern life when firearms ravage inner cities.

The Supreme Court declined to specify a standard of review for firearm regulation. It did, however, reject Justice Breyer's dissenting opinion, arguing that the court should balance the state's interests against those of the individual. Breyer would have upheld the District of Columbia law because the city had a compelling interest in curbing rampant gun violence. The court did recognize a significant scope for gun control, suggesting it would uphold reasonable licensing laws, as well as long-standing prohibitions, or limits, on the possession by felons and persons with mental illness, commercial sale of weapons, carrying concealed weapons, and carrying firearms in sensitive places such as schools and government buildings. The court also implied that the right to personal possession did not extend to “dangerous and unusual weapons” not typically used for self-defense or recreation, such as machine guns.

Many state and municipal firearm laws appear to be permitted, but categorical bans on handguns in cities such as Chicago are in serious jeopardy. At present, 14 jurisdictions ban or restrict licensing of concealed weapons; 7 ban assault weapons; 12 require background checks for all transfers of firearms or handguns only; 24 require gun dealers to keep records of sales to deter trafficking; and 43 states allow certain property owners and employers to prohibit guns on their premises.^{3 - 4} The National Rifle Association (NRA) has recently filed numerous lawsuits challenging firearm regulations, including Washington, DC’s, ban on semiautomatic guns.

Scalia is correct in observing that possessing a handgun at home is a distinctly American value. Private citizens own more than 200 million firearms, increasing by 4 million annually, with 40% of households owning at least one firearm.⁵ However, these firearms actually make the public less safe. A gun in the home is far more likely to be involved in killing a family member than an intruder, and a hostile gun display is most commonly used to instill fear in female domestic partners.⁶ Each year, more than 30 000 deaths are associated with firearms, accounting for 18% of all injury-related deaths.⁷ Twice as many nonfatal firearms injuries require emergency care. Having a single handgun in the home makes a person 5 times more likely to be unintentionally shot and killed than if there were no gun in the home.⁸ Between 1981 and 2005, firearms were used in 58% of suicides, and individuals living in homes with guns were greater than 3 times more likely to commit suicide than those living in homes without guns.^{8 - 9} Firearms in the home, moreover, are often used to supply the criminal illicit market. An estimated 500 000 guns are stolen every year, and about half the guns sold by high-volume dealers are used in a crime within 2 years of purchase.¹⁰ Firearm injuries and deaths result in a $2 billion annual expenditure in medical care and an overall economic burden of $100 billion.¹¹

These are principally policy arguments, but they also have major constitutional significance. The evidence demonstrates that government has a keen interest in abating firearm violence. Reasonable gun control laws would significantly protect the public's health, such as by closing gun show loopholes; ending fire sales, whereby gun dealers are allowed to sell off stocks without background checks; requiring microstamping so police can match bullet casings to the weapon that fired them; and requiring safe gun storage (eg, unloaded, separate storage of ammunition, and locking mechanisms)—all effective methods for reducing firearm deaths.¹²

Gun rights advocates have remarkable political influence. The gun lobby, for example, plans to spend $40 million on the presidential campaign alone.¹³ As a sign of the NRA's political power, 250 house members and 55 senators, including Vice President Cheney, signed an amicus curiae brief urging the Supreme Court to find an individual right to bear arms. Legislatures have also actively blocked efforts by mayors to control gun violence. The federal Protection of Lawful Commerce in Arms Act (PLCAA) creates broad immunity from liability, requiring “immediate dismissal” of all current and future actions against gun sellers and manufacturers. Pursuant to the PLCAA, a federal appeals court recently dismissed New York City's claim that the industry marketed guns to legitimate buyers knowing they would, through various avenues—eg, gun shows, private sales without background checks, and straw purchases—end up in illegal markets.¹⁴ Remarkably, Congress actually blocks access to a federal database that traces guns used in crime back to particular dealers, even though blocking access to the database can have no self-defense purpose.¹⁵ Furthermore, 30 states offer tort immunity for the firearm industry, and 40 states preempt cities from enacting gun control laws.⁴

The Heller case has fueled an already dominant political movement. Scalia's rhetoric will permeate public debate and will give voice to vociferous advocacy in the nation's legislatures and courts. It is so politically risky for politicians to speak out against gun rights that both major party presidential candidates immediately embraced Scalia's decision.

A bare majority of the Supreme Court—in the most strident and dismissive terms—has thus sided with, and given voice to, ardent opponents of firearm safety regulation. This decision comes at a pivotal moment in the United States because firearms contribute to crime in ravaged inner cities, domestic violence in families, suicides among depressed and vulnerable individuals, unintentional injuries and deaths in the home, and mass killings in schools and workplaces—all of which cause unimaginable grief.