In the wake of the Newtown tragedy, the ritual invocations of Second Amendment rights that have become standard in these horrific situations were heard once again.
Any discussion of the Second Amendment has to begin with District of Columbia v. Heller, decided by the United States Supreme Court in 2008 by a vote of five to four. Justice Antonin Scalia wrote the majority opinion.
The Second Amendment says, “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 District of Columbia, apparently in the belief that our Second Amendment rights apply only during militia service, banned the possession of handguns, even in one’s home. Heller struck down the ban, holding that the Second Amendment guarantees an individual’s right to possess handguns in the home for self-defense.
What I have to say about Heller needn’t detain anyone long. I’ll succeed beyond my wildest dreams if I prompt anybody to read Heller itself. Anybody doing that with care will discover, I think, that Second Amendment jurisprudence is relatively undeveloped, because of which we really don’t know much about our Second Amendment rights.
Marshaling a wealth of historical evidence, Scalia argued that the Second Amendment wasn’t understood at the time of its ratification to confer some novel right, but merely codified an “ancient right” of individuals to possess arms for self-defense. Among the myriad supporting examples Scalia cites is one from Nunn v. State (1846), in which the Georgia Supreme Court said, “Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”
Seizing on the central holding in Heller, states around the country took it as a green light to enact more permissive gun legislation than the Court’s analysis seems to endorse. Scalia was careful to note in a passage apparently lost on some state legislatures, “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” After listing some familiar limitations on the right now in force, Scalia adds in a footnote that his list “does not purport to be exhaustive,” leaving open the possibility that the Second Amendment may allow for still more regulations.
To the complaint of Justice Stephen Bryer, writing in dissent, that the majority opinion leaves “so many applications of the right to keep and bear arms in doubt,” and doesn’t provide “extensive historical justification for those regulations of the right that we describe as permissible,” Scalia counsels patience: “(S)ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field…. (T)here will be time enough to expound upon the historical justification for the exceptions we have mentioned if and when those exceptions come before us.”
Although taken as a license, so to speak, in many states to permit the possession of firearms in settings and circumstances far different from those the Court considered in Heller, this case, in spite of being the Court’s “first in-depth examination of the Second Amendment” in 223 years, is still, Scalia noted, not, “exhaustive.”
So, far from being entitled to confidence that our Second Amendment rights extend to the possession of firearms in bars, schools, churches, parks, government buildings, and the array of other places that some gun rights advocates want to see them in, we don’t even know yet whether we have a Second Amendment right to carry guns in public. We’ll find that out if the state of Illinois appeals to the United States Supreme Court the Seventh Circuit Court of Appeals decision invalidating an Illinois prohibition against the possession of guns in public.
As Congress considers its response to Newtown, it’s worth keeping in mind that our Second Amendment rights aren’t what various state legislatures, the National Rifle Association or Fox News talking heads say they are. Until the United States Supreme Court rules otherwise, they’re what District of Columbia v. Heller said they are.