“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.”
Justice Antonin Scalia broke down the Second Amendment, clause by clause, in coming to the conclusion that the individual right it conveyed trumps the interest in cities like the District of Columbia in banning handguns outright in D.C. v. Heller.
In the end, Scalia reasoned, “the inherent right of self-defense has been central to the Second Amendment right.”
“The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose,” Scalia wrote. “The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family, would fail constitutional muster.”
“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution,” Scalia later noted. “The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”
Justice John Paul Stevens filed a dissent joined by the rest of the Court’s so-called liberal bloc: Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. In his opinion, Stevens said it is uncontroverted that the right to bear arms is an individual right protected by the Constitution.
“But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right,” Stevens wrote. “Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes.”
Looking at the text of the Second Amendment and legal history, Stevens said the majority’s conclusion is unfounded.
“Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms,” Stevens wrote. “Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”
Breyer also filed a dissent, joined by Stevens, Ginsburg and Souter, echoing Stevens’ reason for dissenting and adding another.
“The second independent reason is that the protection the Amendment provides is not absolute,” Breyer wrote. “The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are-whether they do or do not include an independent interest, in self-defense-the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.”