Second Amendment Rights Strong But Not Unlimited

"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."

United States Constitution, Second Amendment

So what exactly did the writers of the Bill of Rights mean when they wrote this into our Constitution? And how exactly is this interpreted now? The answer comes in a United States Supreme Court majority opinion written by the late great Antonin Scalia in 2008. This right is not a total reference to a state militia, but it also doesn't give convicted felons the right to carry a handgun.

District of Columbia v. Heller was a federal court challenge by Dick Heller, D.C. special police officer, to District law generally prohibiting the possession of a handgun. At the time of officer Heller's lawsuit, it was lawful for the chief of police to issue one-year licenses for handguns. D.C. residents were required to keep their lawfully owned firearms "unloaded and disassembled or bound by a trigger lock or similar device".

In a classic narrow 5-4 high court decision, Justice Scalia, joined by justices Roberts, Kennedy, Thomas, and Alito, held that the Second Amendment goes beyond possession and carrying of firearms in association with militia service. Scalia divided the one-sentence amendment into two clauses: Prefatory and operative.

Prefatory:

A well regulated Militia, being necessary to the security of a free State,

Operative:

the right of the people to keep and bear Arms, shall not be infringed.

Key sentence in Scalia's opinion: "The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.'"

Scalia cited J. Tiffany, A Treatise on Government and Constitutional Law section 585, page 394 (1867).

So the Second Amendment right belongs generally to all Americans individually. But not without limit. After a thorough review of applicable state cases and history, Justice Scalia acknowledged longstanding precedent that "the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose". Examples cited are prohibitions on carrying concealed weapons, prohibitions on the possession of firearms by felons and the mentally ill, carrying firearms in sensitive places such as schools and government buildings, and laws imposing conditions and qualifications on the commercial sale of arms. This was only a list of examples - not intended to be exhaustive.

Before turning to the analysis of the law of the District of Columbia and rendering the handgun prohibition unconstitutional, Scalia also recognized the limitation of prohibiting the carrying of "dangerous and unusual weapons". 

But the larger portion of Scalia's opinion was spent unpacking the words and the history behind this important piece of the Bill of Rights. 

What does this mean for the controversial bill recently passed by the United States House of Representatives? We likely won't ever find out for sure, as this bill is not likely to pass the Senate.  It will never reach President Biden's desk for signature.

But thanks to District of Columbia v. Heller and cases that have followed it, we know quite a bit about the Second Amendment of the United States Constitution.

James A. Rose

Publisher