On November 20, the Supreme Court announced that it would hear the case of District of Columbia v. Heller. Finally, the Court will decide whether the Second Amendment secures to individual citizens the right to keep and bear their private firearms or whether it merely recongizes that an individual may use firearms for the collective purpose of participating in a state-sponsored militia.
This day has been a long time coming. The last time the Supreme Court directly addressed the meaning of the Second Amendment was almost 70 years ago in the case of U.S. v. Miller, which resulted in a controversial opinion that raised more questions than it answered. The case hinged on whether a short-barreled shotgun was the type of weapon used for military purposes and thus protected by the Second Amendment. The Court never heard evidence on this issue and before it could, Mr. Miller was killed and the case died with him.
As a board member and officer of NRA, I’ve been a vocal critic of gun bans and the D.C. gun ban in particular. It’s not just because such laws violate our Constitution but also because 25 years ago, before I became a gun owner, I was almost the victim of a home invasion. I learned first hand that the right of self-defense means nothing unless you also have the means of self-defense.
When this case challenging the D.C. gun ban was filed in 2003, it was called Parker v. District of Columbia. Shelly Parker lived in a high crime area of D.C. She and five other plaintiffs sued to overturn the D.C. law because it deprived them of their right to keep operable firearms in their homes for self-protection.
The D.C. law has been on the books since 1976 and makes it a serious crime to possess any handgun or a loaded, readily-usable shotgun or rifle even in your own home. A law that prevents a peaceable law-abiding person from possessing the one tool that she can use to defend herself at home against a criminal attack is just plain wrong.
Most people had never heard of the Parker case until last March when the U.S. Court of Appeals for the D.C. Circuit struck down the 30-year old gun ban saying it violated the Second Amendment. That made the news.
The Parker case has since been renamed Heller – Shelly Parker was not allowed to proceed with her case but plaintiff Dick Heller was. Now, the Supreme Court will decide what right is meant by the “right to keep and bear arms”. Is it an individual right that each of us has to own and possess our private firearms, without regard to any military service? Or is it a collective right that exists only to allow us to serve in the National Guard or a state-sponsored militia?
Specifically, the Court will decide whether the District’s ban on handguns not registered before 1976, its ban on the carrying of unlicensed handguns, and provisions requiring long guns (rifles & shotguns) to be made inoperable violate the Second Amendment right of “the people” (that’s you and me) to keep and bear our private arms.
Although the briefs filed by the District and by Heller contained statements of what each party wanted the Supreme Court to decide, the Supreme Court rewrote the question presented and it now reads: “Whether the [D.C. Code provisions] 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?”
The language of the question – the reference to “private use in their homes” – suggests that the case will be narrowly decided and limited to possession and carrying of firearms within the home. The Supreme Court frequently chooses to decide issues as narrowly as possible, thus leaving room for future interpretations. Either way the case will be important in that a citywide gun ban will either be upheld or struck down.
And as to what the outcome might be, I will not presume to know how nine of the greatest legal minds in America will answer this question. The Court is closely-divided, with four conservatives, four liberals, and one moderate (Justice Anthony Kennedy) generally as the swing vote. Although the subject of firearms and the Second Amendment is controversial, the narrow concept that people ought to be able to defend themselves in their own homes against criminal attack and that a gun is an effective way to do it is not.
How long do we have to wait? The District of Columbia’s brief is due shortly after the first of the year. The Heller brief is due 30 days after that. There will undoubtedly be numerous amicus (friend of the court) briefs filed by groups on both sides of the issue. Barring any unusual delays, the Court should hear oral argument in March and issue its decision in June.
And the timing of the case is significant for other reasons. With the briefing schedule and argument taking place right in the middle of a hotly contested presidential campaign season, it will be impossible for any candidate to ignore the Second Amendment.
American history is full of cases that have changed the course of that history. Some of those names are known mostly to lawyers. Others are cases that have had such a clear impact that non-lawyers are familiar with them as well, such as Roe v. Wade, Marbury v. Madison, Dred Scott v. Sanford, Brown v. Board of Education, Miranda v. Arizona and Bush v. Gore.
D.C. v. Heller is destined to become such an historic case. And we have a front row seat to watch history in the making.