District of Columbia v. Heller

From Wikipedia, the free encyclopedia
June 26, 2008

Case argued before the U.S. Supreme Court on March 18, 2008
Case decided by the U.S. Supreme Court (5-4) on June 26, 2008

Full case name:  District of Columbia, et al. v. Dick Anthony Heller

Docket #:  07-290

Citations:  U.S.

Prior history:  Provisions of the Firearms Control Regulations Act of 1975 infringe an individual's right to bear arms as protected by the Second Amendment.  District Court for the District of Columbia reversed.

Procedural history:  Writ of Certiorari to the U.S. Court of Appeals for the District of Columbia Circuit

District of Columbia v. Heller
, No. 07-290, is a legal case in which the Supreme Court of the United States ruled that the Second Amendment to the United States Constitution protects an individual right to possess a firearm for private use. It was the first Supreme Court case in United States history to definitively address the question of whether the right to keep and bear arms is a right of individuals or a collective right that applies only to state-regulated militias.

The Supreme Court affirmed the decision of the lower court, the United States Court of Appeals for the District of Columbia Circuit in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007). Oral arguments at the Supreme Court were held on March 18, 2008.[1] The Supreme Court affirmed the decision of the Court of Appeals by a 5-4 vote on June 26, 2008.[2]





Background of the case

In 2002, Robert A. Levy, a Senior Fellow at the Cato Institute, began vetting plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. Although he personally had never owned a gun, as a Constitutional scholar and believer in individual rights, he had an academic interest in the subject and wanted to mirror his campaign on the work of Thurgood Marshall.[3] They aimed for a group that would be diverse in terms of age, race, and economics. They eventually picked Shelly Parker, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, George Lyon and Dick Heller. Before the case, Levy knew only Tom Palmer, a colleague from the Cato Institute, and none of the six knew each other.[4]

In February 2003, the six residents of Washington, D.C. filed a lawsuit in the United States District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law enacted pursuant to District of Columbia home rule. This law restricts residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also requires that all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock."[5] The District Court dismissed the lawsuit.

D.C. Circuit's decision

On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal in a 2-1 decision, striking down provisions of the Firearms Control Regulations Act as unconstitutional. Judges Karen L. Henderson, Thomas B. Griffith and Laurence H. Silberman formed the Court of Appeals panel, with Senior Circuit Judge Silberman writing the court's opinion and Circuit Judge Henderson dissenting.

The court's opinion first addressed whether appellants have standing to sue for declaratory and injunctive relief in section II (slip op. at 5–12). The court concluded that of the six plaintiffs, only Heller—who applied for a handgun permit but was denied—had standing.

The court then held that the Second Amendment "protects an individual right to keep and bear arms", saying that the right was "premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad)." They also noted that though the right to bear arms also helped preserve the citizen militia, "the activities [the Amendment] protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia." The court determined that handguns are "Arms" and concluded that thus they may not be banned by the District of Columbia. However, they said that Second Amendment rights are subject to reasonable restrictions.

The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The District argued that there is an implicit self-defense exception to these provisions, but the D.C. Circuit rejected this view, saying that the requirement amounted to a complete ban on functional firearms and prohibition on use for self-defense:[6]

Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.”

Henderson's dissent

In dissent, Judge Henderson wrote:

To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under United States v. Miller, 307 U.S. at 178, the Second Amendment's declaration and guarantee that "the right of the people to keep and bear Arms, shall not be infringed" relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.”[7]

Petition for rehearing

In April 2007, the District and Mayor Adrian Fenty petitioned for rehearing en banc, arguing that the ruling creates inter- and intra-jurisdictional conflict.[8] On May 8, 2007, the United States Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote.

Supreme Court review

Both the defendants and the plaintiffs petitioned the United States Supreme Court to hear the case. The Supreme Court agreed to hear the case on November 20, 2007.[9] The court has rephrased the question to be decided as follows:

“The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

This is the first time since the 1939 case United States v. Miller that the Supreme Court has directly addressed the scope of the Second Amendment.[10]

Amicus curiae

Due to the controversial nature of the case, it garnered much attention from many groups on both sides of the gun rights issue. Many of those groups filed amicus curiae ("friend of the court") briefs, about 47 urging the court to affirm the case and about 20 to remand it.[11]

A majority of the members of Congress[12] signed the brief authored by Stephen P. Halbrook advising that the case be affirmed overturning the ban on handguns not otherwise restricted by Congress.[13] Vice President Dick Cheney, in what may be an unprecedented departure for a vice president, joined in this brief, acting in his role as President of the United States Senate, and breaking with the administration's official position.[14] Presumptive Republican nominee for President, Arizona Senator John McCain, also signed the brief. Presumptive Democratic nominee, Illinois Senator Barack Obama, did not.[15]

A majority of the states signed the brief of Texas Attorney General Greg Abbott advising that the case be affirmed while at the same time emphasizing that the states have a strong interest in maintaining each of the states' laws prohibiting and regulating firearms.[16][17][18]

A number of organizations signed friend of the court briefs advising that the case be remanded, including the United States Department of Justice[19], Attorneys General of New York, Hawaii, Maryland, Massachusetts, New Jersey, California, and Puerto Rico.[20] Additionally, friend of the court briefs to remand were filed by a spectrum of religious and anti-violence groups,[21] a number of cities and mayors,[22] and many police chiefs and law enforcement organizations.[23]

Oral argument

The Supreme Court heard oral argument in the case on March 18, 2008. Both the transcript[24] and the audio[25] of the argument have been released. Each side was initially allotted 30 minutes to argue its case, with U.S. Solicitor General Paul D. Clement allotted 15 minutes to present the federal government's views[26]. During the argument, however, extra time was extended to the parties, and the argument ran 23 minutes over the allotted time.[27]

Walter E. Dellinger of the law firm O’Melveny & Myers argued the District's side before the Supreme Court. Dellinger was assisted by Thomas Goldstein of the Akin Gump law firm, Robert Long of the Covington & Burling law firm and D.C. Solicitor General Todd Kim. The law firms assisting the District are working pro bono.[28]

Alan Gura, of the DC Based law firm Gura & Possessky, is lead counsel for Heller and argued on his behalf before the Supreme Court.[29] Robert Levy, a senior fellow at the Cato Institute and Clark Neily, a senior attorney at the Institute for Justice, are his co-counsel.[30] [31]


On June 26, 2008 the Supreme Court upheld the federal appeals court ruling, striking down the DC gun law. By a 5-4 decision, Justice Antonin Scalia for the majority stated the Constitution "takes certain policy choices off the table...these include the absolute prohibition of handguns held and used for self-defense in the home."[32] This ruling upholds the first federal appeals court ruling ever to void a law on Second Amendment grounds.[33]

Non-party involvement

This case has faced opposition and involvement both from groups for and against expanded gun rights. The National Rifle Association was initially not supportive of the case because it feared it might not be successful. The NRA has since reconciled with the plaintiffs. The Brady Campaign to Prevent Gun Violence lobbied to have DC gun laws changed so the case would be moot and not eligible to be heard by the Supreme Court.

National Rifle Association

Attorney Alan Gura, in a 2003 filing, used the term "sham litigation" to describe the NRA's attempts to have Parker (aka Heller) consolidated with its own case challenging the D.C. law. Gura also stated that "the NRA was adamant about not wanting the Supreme Court to hear the case".[34] These concerns were based on NRA lawyers' assessment that the justices at the time the case was filed might reach an unfavorable decision.[35] Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, has stated that the Parker plaintiffs "faced repeated attempts by the NRA to derail the litigation."[36]

Wayne LaPierre, the NRA’s chief executive officer, confirmed the NRA's misgivings. “There was a real dispute on our side among the constitutional scholars about whether there was a majority of justices on the Supreme Court who would support the Constitution as written,” Mr. LaPierre said. Both Levy and LaPierre said the NRA and Mr. Levy’s team were now on good terms.[37]

Elaine McArdle wrote in the Harvard Law Bulletin "If Parker is the long-awaited “clean” case, one reason may be that proponents of the individual-rights view of the Second Amendment—including the National Rifle Association, which filed an amicus brief in the case—have learned from earlier defeats, and crafted strategies to maximize the chances of Supreme Court review." The NRA did eventually support the litigation by filing an amicus brief with the Court arguing that the plaintiffs in Parker had standing to sue and that the D.C. ban was unconstitutional under the Second Amendment.[38]

Chris Cox, executive director of the NRA's Institute for Legislative Action, had indicated support of federal legislation which would repeal the D.C. gun ban. Opponents of the legislation argued that this would have rendered the Parker case moot, and effectively eliminated the possibility that the case would be heard by the Supreme Court.[39]

Brady Campaign to Prevent Gun Violence

The Brady Campaign to Prevent Gun Violence is opposed to the arguments made by the plaintiffs in Parker, and filed amicus briefs against those arguments in both the District and Circuit courts.

Paul Helmke, the president of the Brady Campaign, suggested to D.C. before the Court granted certiorari that it modify its gun laws rather than appeal to the Supreme Court.[40] Helmke has written that if the Supreme Court upholds the Circuit court ruling, it "could lead to all current and proposed firearms laws being called into question."[41]

Scholarly commentary

Various experts expressed opinions on the D.C. Circuit's decision.

Harvard Law School professor Laurence Tribe contended that the Second Amendment protects an individual right, and predicted that if Parker is reviewed by the Supreme Court "there’s a really quite decent chance that it will be affirmed."[38] However, Professor Tribe has also argued that the District's ban on one class of weapons does not violate the Second Amendment even under an individual rights view.[42]

John C. Eastman Associate Dean of Chapman University’s School of Law and director of the Claremont Institute’s Center for Constitutional Jurisprudence asserts that "the Second Amendment, like its sister amendments, does not confer a right but rather recognizes a natural right inherent in our humanity." [43]

Erwin Chemerinsky, then of Duke Law School and now dean of University of California, Irvine, argued that the District of Columbia's handgun laws, even assuming an "individual rights" interpretation of the Second Amendment, could be justified as reasonable regulations and thus upheld as constitutional. Professor Chemerinsky believes that the regulation of guns should be analyzed in the same way "as other regulation of property under modern constitutional law" and "be allowed so long as it is rationally related to achieving a legitimate government purpose."[44]

Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, agreed with the court's ruling but describes that his interpretation of the Second Amendment would not preclude all governmental regulation of private ownership of weapons:

“Even the NRA concedes that you can’t have mad men running around with weapons of mass destruction. So there are some restrictions that are permissible and it will be the task of the legislature and the courts to ferret all of that out and draw the lines. I am sure, though, that outright bans on handguns like they have in D.C. won’t be permitted. That is not a reasonable restriction under anybody’s characterization. It is not a restriction, it’s a prohibition.”[45]

Political reaction

Prior to the Supreme Court's decision in June of 2008, several politicians from the state of Montana, including the Montana Secretary of State, had signed a joint resolution asserting that, if the Supreme Court ruled against an individual-rights interpretation of the second amendment, the compact between the United States and Montana would be violated, and that the state "reserves all usual rights and remedies under historic contract law" should that occur. [46][47]

Immediately after the ruling was announced Republican presidential candidate Senator John McCain praised the decision, calling it a "landmark victory for Second Amendment freedom in the United States." McCain also suggested other handgun bans, such as that in Chicago might be overturned due to the ruling.[48]

See also


1.            ^ Courts weighs right to own guns. [1]

2.            ^ Court: A constitutional right to a gun

3.            ^ "Carefully Plotted Course Propels Gun Case to Top" by Adam Liptak, New York Times, December 3, 2007

4.            ^ "Lawyer Who Wiped Out D.C. Ban Says It's About Liberties, Not Guns" by Paul Duggan, The Washington Post, March 18, 2007

5.            ^ "D.C. Asks Supreme Court to Back Gun Ban" by Robert Barnes and David Nakamura, The Washington Post, September 4, 2007

6.            ^ Senior Circuit Judge Silberman (2007-03-09). Case No. 04-7041, Parker v. D.C. (pdf) 57. United States Court of Appeals for the District of Columbia Circuit. Retrieved on 2008-02-12. “He simply contends that he is entitled to the possession of a "functional" firearm to be employed in case of a threat to life or limb. The District responds that, notwithstanding the broad language of the Code, a judge would likely give the statute a narrowing construction when confronted with a self-defense justification. That might be so, but judicial lenity cannot make up for the unreasonable restriction of a constitutional right. Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.”

7.            ^ Page III-17 of dissent.

8.            ^ Petition for rehearing en banc for the District of Columbia

9.            ^ Cert. granted, District of Columbia v. Heller, 128 S.Ct. 645 (2007).

10.        ^ "D.C. Asks Supreme Court to Back Gun Ban" by Robert Barnes and David Nakamura, The Washington Post, September 4, 2007

11.        ^ Marcia Coyle. "Amicus Briefs Are Ammo for Supreme Court Gun Case", The National Law Journal, 2008-03-10. Retrieved on 2008-03-11. 

12.        ^ Robert Barnes (February 9, 2008). "Cheney Joins Congress In Opposing D.C. Gun Ban; Vice President Breaks With Administration". Washington Post. 

13.        ^ Stephan Holbrook amicus brief.. Retrieved on 2008-02-26.

14.        ^ Robert Barnes (February 9, 2008). "Cheney Joins Congress In Opposing D.C. Gun Ban; Vice President Breaks With Administration". Washington Post. 

15.        ^ "US Supreme Court in historic hearing on gun laws", AFP, 2008-03-18. Retrieved on 2008-03-18. 

16.        ^ Amicus brief of 31 States pg 36. Retrieved on 2008-02-27.

17.        ^ JENNIFER McKEE (February 13, 2008). "State signs gun rights brief". Missoulian.com. 

18.        ^ Hutchison, Abbott Fight For Gun Rights. KXAN.com.

19.        ^ U.S. Department of Justice brief. Retrieved on 2008-02-26.

20.        ^ Amicus States. Retrieved on 2008-02-24.

21.        ^ Amicus coalition. Retrieved on 2008-02-24.

22.        ^ Amicus Cities. Retrieved on 2008-02-24.

23.        ^ Amicus Brady Center. Retrieved on 2008-02-24.

24.        ^ Oral Arguments of Case No. 07-290 (pdf). United States Supreme Court (2008-03-18). Retrieved on 2008-03-18.

25.        ^ Video available at rtsp://video.c-span.org/archive/sc/sc031808_2amendment.rm

26.        ^ Robert Barnes. "Supreme Court to Release Same-Day Tapes", Washington Post, 2008-03-05, p. B03. Retrieved on 2008-03-05. 

27.        ^ D.C. v. Heller on Scotuswiki. Retrieved on 2008-03-19.

28.        ^ Gary Emerling. "Fenty arms self with new lawyer to defend gun ban", Washington Times, 2008-01-05. 

29.        ^ Linda Greenhouse. "Justices to Decide on Right to Keep Handgun", New York Times, 2007-10-21. Retrieved on 2008-03-18. 

30.        ^ "DCGunCase.com - About Us". 

31.        ^ Supreme Court Dared to Uphold Handgun Ban by Man Who Has None. Retrieved on 2008-02-20.

32.        ^ http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

33.        ^ Greg Stohr. Individual Gun Rights Protected, Top U.S. Court Says, Bloomberg News, 2008-06-26.

34.        ^ Both Sides Fear Firing Blanks if D.C. Gun Case Reaches High Court, Tony Mauro, Legal Times, July 30, 2007

35.        ^ NRA Had High Court Misgivings, Debra Cassens Weiss, ABA Journal, July 30, 2007

36.        ^ Levy, Robert A. "Should Congress or the courts decide D.C. gun ban’s fate?", The Washington Examiner, April 3, 2007.

37.        ^ Liptak, Adam [2], The New York Times, December 3, 2007.

38.        ^ a b Lawyers, Guns and Money, Elaine McArdle, Harvard Law Bulletin

39.        ^ Opening Shots, Jennifer Rubin, National Review Online, March 29, 2007

40.        ^ Washington Gun Ban Under Fire, Associated Press

41.        ^ Taking Aim at Judicial Activism, Helmke's blog at bradycampaign.org

42.        ^ "Sanity and the Second Amendment" by Laurence H. Tribe, The Wall Street Journal, March 4, 2008

43.        ^ NRO Symposium on Gun Rights", National Review Online March 12, 2007

44.        ^ A Well-Regulated Right to Bear Arms, Erwin Chemerinsky, The Washington Post, March 14, 2007]

45.        ^ Interview: The Way of the Gun, Leigh Ferrara, MotherJones.com, April 19, 2007

46.        ^ "'Any person' has right to gun, state says, Montana claims 2nd Amendment questions already resolved" (February 20, 2008). WorldNetDaily.com. 

47.        ^ "Letters to the Editor, Second Amendment an individual right" ([dead link] Scholar search) (February 19, 2008). Washington Times. 

48.        ^ McCain: Chicago Gun Ban Infringes On Rights (2008-06-26). Retrieved on 2008-06-26. “"Today's ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans," McCain said in the statement.”

Other references

External links

Retrieved from "http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller"