Liberty Preserved! D.C. v. Heller
By Jon Cooner
On June 26, 2008, the Supreme Court issued its final opinion in the most important gun-rights case, and arguably the most important individual rights case, in recent memory, District of Columbia v. Heller. As many in the hunting and shooting world are already aware, the Heller decision is one of extremely broad potential implication, both specifically as to gun rights and generally as to all our liberties. The following is a synopsis of the Heller opinion and what it means to all Americans, gun owners and non-gun owners alike.
[i]What the Heller Case Was About[/i]
Until the Heller decision, Washington D.C.'s gun laws had been among the strictest in the nation for many years. The Heller case was brought as a challenge to two things those laws did as administered by the D.C. government. First, they prohibited anyone in Washington D.C. from having a handgun in the home for self defense. Second, they required that shotguns and rifles, possession of which was allowed in the home, be kept in such condition that they would be unavailable as a practical matter for self defense (unloaded/disassembled/trigger-locked). In Heller, the United States Supreme Court struck down the D.C. gun laws on the ground that the laws violated the right to keep and bear arms protected by 2nd Amendment to the United States Constitution. Here's the link to the Supreme Court's opinion: http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf
The critical issue resolved in the case was whether the right protected by the 2nd Amendment is an "individual" right, or a "collective" right. The 2nd Amendment is part of our Bill of Rights, and any explanation of the difference between individual and collective rights requires an understanding of what the Bill of Rights, including the 2nd Amendment, actually does, and what it does not do. If you'd like to read the Bill of Rights, you can do so here: http://www.archives.gov/exhibits/charte ... cript.html
Individual Rights versus Collective Rights
The amendments that make up the Bill of Rights set out specific, or "enumerated," rights including freedom of religion, freedom of speech, freedom of the press, and in the case of the 2nd Amendment, the right to keep and bear arms. Almost all of the freedoms protected by the Bill of Rights have been fairly universally understood to be inherent "individual" rights, meaning that each of us has these rights simply by virtue of being a free person. Accordingly, the amendments in the Bill of Rights do not "give" these rights to us (and, in fact, they couldn't since we already have them), but instead guarantee that the government can never arbitrarily take those rights away from us. Until Heller, though, the nature of one such right, the right to keep and bear arms enumerated in the 2nd Amendment, had been the source of heated debate for about a century.
The D.C. government argued in Heller that the right to keep and bear arms is not an individual right, but a "collective" right of the citizenry of the United States as a whole to keep and bear arms as part of a state militia. Had the court agreed, it could have meant that the government has the authority to completely disarm every citizen of the United States who is not a member of the National Guard, do so any time it wants, and without reason. If you want an example of how unconscionable the "collective-rights" theory is, consider that it would make perfectly legal the very sort of mass confiscations of guns from law-abiding citizens we saw in Louisiana during the aftermath of Hurricane Katrina!
Thankfully, the court clearly stated in Heller that the right to keep and bear arms is an inherent individual right guaranteed by the 2nd Amendment. As such, the court held, the D.C. gun laws as administered by the D.C. government violated the 2nd Amendment because, in effect, they prohibited all D.C. residents from legally having any kind of firearm readily accessible in the home for self-defense, a lawful purpose that the court noted was at the very core of the right to keep and bear arms.
This clear statement that the 2nd Amendment guarantees an individual right is potentially one of extremely broad implication. It is also the only logical inference one can draw as to what our Founding Fathers intended the 2nd Amendment to do. They crafted the Bill of Rights in 1789, which was right after the Revolutionary War - a war prompted in large measure by England's attempt to subjugate the people living in her American colonies by disarming them. With the Revolutionary War still fresh in their minds, the Founding Fathers took great care when creating the new American government to ensure that it could never prohibit the people from keeping and bearing arms for self defense in the home, for hunting and, if necessary, to prevent tyranny. In fact, that's the very reason for the entire Bill of Rights, including the 2nd Amendment - to prevent the government we set up to serve us from taking more power than the people choose to give it.
Heller's Short-Term Future Effect
Obviously, the Heller decision is a huge sigh of relief to law-abiding residents of Washington D.C. Thankfully, folks like the NRA are also already moving forward to have other unconstitutional gun laws in other parts of the country overturned based on Heller, and that is truly great news for Americans who live in other places where the government may have overreached its authority. How far the NRA will be able to go in helping us remove other unconstitutional restrictions on our freedoms remains to be seen. They certainly deserve all the support we can give them.
As for the rest of us law-abiding gun owners, the Heller decision may not change our lives much as a practical matter, at least in the short term. The Heller court made a special effort to point out that other freedoms guaranteed in the Bill of Rights are subject to reasonable regulation, and that the right to keep and bear arms is no exception. For example, even though the Bill of Rights guarantees the right to free speech, that doesn't mean we're allowed to yell "Fire!" in a crowded theater when there's no fire, or that we can slander someone without consequence. Likewise, the court said that most current forms of regulation of the right to keep and bear arms are okay. That means unless and until such existing forms of regulation are overturned, we still must comply with carry-permit requirements and prohibitions against carrying guns in sensitive places such as schools and government buildings. The opinion also doesn't roll back any prohibitions of weapons not currently in common use in our society, such as machine guns.
What the Heller opinion does change, though, for gun owners and non-gun owners alike, is that ALL Americans are finally assured that the most basic protection of individual liberty is intact. Those who wish to have a firearm for lawful purposes such as self defense in the home and for hunting cannot be disarmed by the government at its whim, and that the government we created to serve us cannot take more power than it is allowed by the will of the people.
At least, that's the case for the near future. As wonderful as this news is, no court ruling is written in stone forever, and the Heller decision is no exception. There are two things we must do if the most fundamental of all our liberties is to survive.
Two Things We MUST Do!
First, we must continue to diligently support gun-rights organizations such as the NRA. The NRA was instrumental in winning the Heller case, and it is already aggressively moving ahead to have other unconstitutional gun laws overturned. It needs, and deserves, our full support.
Second, it would be hard to overstate how critical it is at this particular moment in time that each of us vote, and vote wisely, in next November's presidential election. Even though the correct decision in Heller should have been completely clear to the Supreme Court before the case ever started, the ruling was a 5-to-4 split decision - only one vote made the difference! Several current Supreme Court justices will likely retire within the next few years, and their replacements will be appointed to the court by whoever the president is at that time. Supreme Court justices are appointed for life, so the next few appointments will likely determine the status of our rights for decades. It is therefore especially important that next November we elect a president who will only appoint replacements who, like the current justices siding with the majority in Heller, will apply the law instead of trying to re-write it.
The president's appointments to the Supreme Court must also be confirmed by the United States Senate, so we must be equally diligent in electing senators who will confirm appointments without unreasonable delay. The Senate confirmation process has become increasingly politicized over the last few decades, with senators in the non-nominating party employing lengthy delay tactics for political leverage. The process has also become terribly vicious, as any who watched the Senate confirmation hearings of Robert Bork and Clarence Thomas will remember. Accordingly, we must elect not only a president who will appoint non-activist justices, but also U.S. Senators who will confirm those appointments in a reasonable and timely manner.
Many of us have already made up our minds about who'll we'll be voting for next November. If you're still trying to decide which candidate for president you're going to vote for, though, you should consider three things if you're serious about protecting our victory in Heller.
First, realize that just as the 2nd Amendment's guarantee of an individual right should never have been open to legal challenge in the first place, it should not be considered a purely political issue either. In both cases, the reason is the same: each overlooks the unique primacy of the right to keep and bear arms - all our other rights depend entirely on this single right being guaranteed to each of us, and without it, all our other rights (freedom of speech, freedom of religion, etc.) would be reduced to mere privileges that we could exercise only to the extent allowed by the government. Simply put, the right to keep and bear arms is the single most important right we have, and no thinking American who truly understands what America really is could conclude otherwise, regardless of his or her political party affiliation. Consider, for example, the following quotation from Democrat Vice President, Hubert H. Humphrey in 1959: "Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms ... The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard, against the tyranny which now appears remote in America but which historically has proven to be always possible."
Second, you should start narrowing down the list of presidential candidates by carefully investing where each stands on the 2nd Amendment, and then dropping from consideration all those who would appoint activist justices to the Supreme Court. It is a fact that all of the Supreme Court justices who ruled the right way in Heller were appointed by Republican presidents. Even so, there are other candidates who might also appoint the right kind of justices, so you have to go a little further.
Third, realize that in order for a president to make the right appointments to the Supreme Court, he must first get into office. So, the final step in choosing who to vote for is to select from your list of remaining candidates the one who has the best chance of receiving enough votes to actually win. That should leave you with a clear choice.
-- Jon Cooner is Director of Special Projects for The Whitetail Institute of North America.