1. Lecture 28 Chapter 9
The Right to Bear Arms

2. This Lecture Chapter 9 Pages 379-389 Right to Bear Arms
District of Columbia v. Heller (2008)
Does it apply to States?

3. What does this mean? Is this a personal or collective right?
Must ownership be within the state militia?
Or is it more for self-defense?
If it is a right, how much can be regulated?
And this is a major political issue

4. United States v. Miller (1939)
Challenge to the National Firearms Act of 1934
Put a large tax on certain weapons
Prohibited firearms from being interstate transported if unregistered
The Court unanimously upholds the law, by McReynolds, J.
They take the collective theory on the 2nd Amendment

5. Printz v. United States (1997)
This was a Congressional power case
But Thomas, J. added a footnote to a concurring opinion stating that he believes history shows this right to be a personal one
But other than this, the Court was rather silent on the 2nd Amendment until 2008

6. District of Columbia v. Heller (2008)
Background
The District of Columbia had a very strict gun control law
Banned all private handgun possession
Allowed for very limited concealed carry permits
Heller filed for one for personal protection, but was denied
He sued as a test case for the 2nd Amendment
He loses at the D.C. Circuit level and appeals
Professor Heller- not the Heller in this case!

7. District of Columbia v. Heller- II
Arguments
For the District of Columbia
D.C. is not a state, so the militia argument fails
Miller protects only the right to bear arms in relation to a militia, not personally
Even if it does apply to a personal right, the Court should still uphold the law
For Heller
The Second Amendment protected an individual right that existed before adoption of the Constitution
The preamble is not a limiting device
The Second Amendment protects the right to own guns for self-defense that could be used in militia service

8. District of Columbia v. Heller- III
Scalia, J. for a 5-4 Court
He divides up the amendment
Operative clause
Right of the people used many other times in the Constitution
This means not a collective right
Holder of the right is the people
Applies to weapons not specifically designed for the military
Keep and bear to have weapons, and carry
This adds up to a self-defense right

9. District of Columbia v. Heller- IV
More from Scalia, J.
Prefatory Clause
A militia was assumed to be all adults males
And was presumed to have already been in place
Relations between the two clauses
Does not apply only to an organized militia
Look to state interpretations
Self-defense inherent to the amendment
Allows for reasonable regulations, but not outright bans
Matters not that today’s weapons not around back then

10. District of Columbia v. Heller- V
Stevens, J. dissenting, joined by Souter, Ginsburg, and Breyer, JJ.
The Amendment was designed to keep Congress from disbanding state militias
Not for the right of self-defense
He calls out the majority for little new evidence to change precedent
This should be a policy choice for D.C.
No evidence the Framers meant this
Breyer, J. dissenting, joined by Stevens, Souter, and Ginsburg, JJ.
D.C. had ample grounds to choose this law
The law is not unreasonable

11. What about the states?
Should this right be incorporated against states/localities?
McDonald v. City of Chicago (2010)
This case says the answer is yes, by a 5-4 majority
On a similar issue of handgun banning
This case has led to many legal challenges on this issue
The Court has not yet taken up a new 2nd Amendment case
However, they have led stand several laws that engage in gun control
In short, total bans on handguns unconstitutional, but other regulations have been upheld (so far)

12. Next Lecture Chapter 10 Pages 390-401
Foundation of the Right to Privacy
Griswold v. Connecticut (1965)