Five justices affirmed the decision from the United States Court of Appeals for the District of Columbia Circuit , finding that the Second Amendment to the United States Constitution protects an individual right to gun ownership. This decision overturned the District of Columbia's ban on gun ownership, which was enacted in A District of Columbia law banned handguns and prohibited their registration.
If a firearm was already owned lawfully, it must be kept unloaded and dissembled or controlled by a trigger lock. The only exemptions were if the handguns were at a place of business or being used for recreational activities. Dick Heller, a special police officer for the District of Columbia, was refused an application to register the handgun he wanted to keep in his home.
Heller then filed a lawsuit based on the Second Amendment. Washington, D. Mayor Adrian Fenty said he was disappointed with the decision. He also believed that the law violated the Second Amendment.
The city also pointed out that the law did not ban all guns, and that it was a reasonable way to prevent crime. The Court reasoned that the prefatory clause gave one reason for the Second Amendment, but it did not limit the right listed in the operative clause—the second part of the amendment—to own weapons only for militia service. It is this phrasing that is used in the operative clause of the Second Amendment.
Four of the nine Supreme Court Justices dissented. Some of the dissenters agreed that the Second Amendment protected an individual right. One dissenter agreed that the Second Amendment protected an individual right, but argued that the District law was a reasonable restriction. One thing is certain. Like all other rights in the Bill of Rights such as freedom of speech and press , the right to keep and bear arms has limits.
The Due Process Clause of the Fourteenth Amendment provides: "28383or shall any State deprive any person of life, liberty, or property, without due process of law. Although the Court acknowledged that the Due Process Clause included "principles of justice so rooted in the tradition and conscience of our people as to be ranked fundamental," and therefore "implicit in the concept of ordered liberty," the Court, despite debate, has never endorsed total incorporation of all of the Bill of Rights.
Rather, the Court embraced what has become known as the doctrine of "selective incorporation," which holds that the Due Process Clause incorporates the text of certain provisions of the Bill of Rights. New York that the Supreme Court for the first time said that the First Amendment's protection of freedom of speech applies to the states through its incorporation into the Due Process Clause of the Fourteenth Amendment.
Over time, the Court has articulated various tests for deciding whether a provision of the Bill of Rights is incorporated through the Due Process Clause of the Fourteenth Amendment. The Supreme Court in Duncan v.
Louisiana summarized these formulations, stating, "the question has been asked whether a right is among those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions Over years ago, the Supreme Court held in United States v.
Cruikshank that the Second Amendment does not act as a constraint upon state law. Illinois , where the Court further commented that because "all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States," the "States cannot, even laying the constitutional provision [aside], prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
Both of these decisions were decided shortly after the Slaughter-House Cases decision, and prior to the advent of modern incorporation principles discussed above.
With respect to Cruikshank 's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our decisions in Presser v. Illinois citation omitted and Miller v. Texas , U. At the time, this statement seemed to leave open the possibility that were the issue of incorporation to come before the Supreme Court, the Court would either support the application of modern incorporation doctrine principles to the Second Amendment or continue with the precedents found in Cruikshank and Presser that the Second Amendment does not apply to the states.
After the Heller decision, three courts of appeals addressed whether the Second Amendment applies to the states, that is, via direct application or via incorporation through the Due Process Clause of the Fourteenth Amendment. The U. King held that the Second Amendment is applicable to the states, though it later vacated its decision in light of McDonald.
On appeal, the plaintiff argued that the state statutory ban violates the Second Amendment because it infringes on his right to keep and bear arms. Similarly, in National Rifle Association v. City of Chicago , the U. Here, the National Rifle Association NRA appealed the decision of the lower court to dismiss its suits against two municipalities on the ground that Heller dealt with law enacted under the authority of the national government, while the City of Chicago and Village of Oak Park are subordinate bodies of a state.
King , which held the opposite, the Seventh Circuit stated that the Supreme Court's decisions in Cruikshank , Presser , and Miller still control, as they have direct application in the case. The court noted that, although Heller questioned Cruikshank , this "[did] not license inferior courts to go their own ways If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision.
On April 20, , the U. Court of Appeals for the Ninth Circuit in Nordyke v. King held that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment and applied it against the states and local governments.
Nordyke stated that there are three doctrinal ways the Second Amendment could apply to the states: 1 direct application, 2 guaranteed as a right by the Privileges or Immunities Clause of the Fourteenth Amendment, or 3 incorporation by the Due Process Clause of the Fourteenth Amendment.
Citing precedent, the court held that it was precluded from finding incorporation through the first two options. To answer this, the Ninth Circuit, although acknowledging other standards used in selective incorporation analyses, applied another standard the Supreme Court used "outside the context of incorporation" to determine whether an individual right unconnected to criminal or trial procedures is a fundamental right protected by substantive due process.
City of East Cleveland , where the Supreme Court recognized a fundamental right to keep family together that includes an extended family. Noting that "incorporation is logically a part of substantive due process," the court in Nordyke applied the standard from Moore because that case noted "the similarity between Louisiana ].
However, Justice Stevens, dissenting, conducted his own substantive due process analysis and concluded that the right is not incorporated. After engaging in a historical analysis of the right during the Founding era, the post-Revolutionary years, and the post-Civil War era, and drawing from some of the Supreme Court's findings in Heller , the Ninth Circuit concluded that the Second Amendment is incorporated and applies against state and local governments because "the crucial role [of this] deeply rooted right Typically, when a right is deemed fundamental, the court must use the strict scrutiny test as the standard of review, meaning that "a law will be upheld if it is necessary to achieve a compelling government purpose.
The petitioners, Otis McDonald and other residents of Chicago and the Village of Oak Park, Illinois, asserted that certain municipal ordinances prevented them from keeping handguns in their homes for self-defense. The Chicago ordinance provided: "No person On the other hand, the NRA, who was recognized by the Court as a "respondent" in support of the petitioners' McDonald group, primarily argued for incorporation of the Second Amendment via the Due Process Clause of the Fourteenth Amendment.
Although five Justices agreed that the Second Amendment applies to the states, these Justices came to different conclusions as to how the amendment is incorporated, resulting in a fractured opinion. Justice Thomas, however, filed a concurring opinion in which he concluded that the Privileges or Immunities Clause of the Fourteenth Amendment guarantees the right to keep and bear arms.
Two dissenting opinions were filed. Justice Stevens opined that whether the Second Amendment applies should be analyzed under a substantive due process analysis, and that "the analysis should depend on whether there is a constitutionally protected liberty to keep handguns in the home Justice Alito, writing for the Court, revisited the precedents in Barron and Slaughter-House Cases , which precluded application of the Bill of Rights either by direct application or the Privileges or Immunities Clause of the Fourteenth Amendment, respectively.
Although Justice Alito, writing for the plurality, declined to disturb these holdings, and further acknowledged that the Court's decisions in Cruikshank , Presser , and Miller held that the Second Amendment applies only to the federal government, he stated that those decisions "do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on the States.
Before analyzing how the Fourteenth Amendment incorporates the Second Amendment, the Court first examined the evolution of its Due Process Clause analysis. Out of these five features, the Court pointed out that later cases, which selectively incorporated certain rights, abandoned three of the previously noted characteristics.
The Court, instead of examining " any civilized system," now asks "whether a particular guarantee is fundamental to our scheme of ordered liberty and system of justice. Lastly, the Court has "abandoned 'the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,' stating that it would be 'incongruous' to apply different standards 'depending on whether the claim was asserted in a state or federal court.
With this modern framework for analyzing if a right comes under the protection of the Due Process Clause, the Court turned to the issue of whether the Second Amendment was just such a right that was incorporated in the concept of due process. The Court, similar to the Ninth Circuit, analyzed whether "the right to keep and bear arms is fundamental to our scheme of ordered liberty, citation omitted or as [it has] said in a related context, whether this right is 'deeply rooted in this Nation's history and tradition' Washington v.
Glucksberg , U. Turning back to its decision in Heller , the Court emphasized self-defense as a basic right that is the "central component" of the Second Amendment right. It reiterated that it had found "the need for defense of self, family, and property [as] most acute" in the home and that the right applies to handguns because they are "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family.
According to the Court, both Federalists and Antifederalists of the Framing-era considered the right to keep and bear arms as fundamental to the newly formed system of government, but differed as to whether the right was sufficiently protected.
Federalists believed that the right was adequately protected due to the limited powers assigned to the federal government, while Antifederalists, who feared that the new federal government would infringe on traditional rights, insisted on the adoption of the Bill of Rights as a condition of ratification. According to the Court, in the aftermath of the Civil War, southern states and militia members made "systematic efforts" to disarm African Americans, to which the 39 th Congress decided that legislative action was necessary.
The legislative actions included the Freedmen's Bureau Act and the Civil Rights Act of , both of which the Court found demonstrated that the right to keep and bear arms was still recognized as fundamental. Although the Court found incorporation under the Due Process Clause, the plurality chose to address an argument made by respondents concerning the Privileges or Immunities Clause, specifically that the historical record provides no basis for imposing the Second Amendment on the states, and that Section 1, presumably in its entirety, was "overwhelmingly" viewed by Members of the U.
House of Representatives as an antidiscrimination rule. The respondents' end point seemed to be that mixed understanding and divided views among 19 th century legislators and legal scholars alike demonstrate that the public could not have understood the reach of the Privileges or Immunities Clause or understood that the Clause incorporated the Bill of Rights. Although the plurality declined to find incorporation under the Privileges or Immunities Clause, Justice Thomas in his concurring opinion proceeded with his own analysis of the Second Amendment's application through the Clause, because he could "not agree that it is enforceable against the States through a clause that speaks only to 'process.
First, Justice Thomas found that "the terms 'privileges' and 'immunities' had an established meaning as synonyms for 'rights. First, Justice Thomas pointed out that the Privileges or Immunities Clause uses the verb "abridge" rather than "discriminate," to describe the limit it imposes on state authority "[n]o State shall". He referred to the dictionary which defines the word "abridge" to mean "[t]o deprive; to cut off Second, Justice Thomas presented several reasons as to the lack of discussion on this Clause and Section 1 to rebut the "typical" argument that because there was no extensive public discussion on the Clause, that it must "not have been understood to accomplish such a significant task of subjecting States to federal enforcement of minimum baseline of rights.
Clause most naturally suggests Justice Stevens began his dissent by rephrasing the question presented. Rather than asking if the Fourteenth Amendment incorporates the Second Amendment, a question he believed to be settled by the Cruickshank , Presser , and Miller decisions, the question he posed was "whether the Constitution 'guarantees individuals to a fundamental right,' enforceable against the States, 'to possess a functional, personal firearm, including a handgun, within the home.
He stated that the Court's decisions that render procedural guarantees in the Bill of Rights enforceable against the states have little impact on the meaning of the word "liberty" in the Clause or about the scope of its protection of nonprocedural rights, such as the Second Amendment. Asserting that a substantive due process analysis must be used to determine if the Second Amendment should be applied to the states, his dissent provided a "fresh survey of this old terrain.
First, he stated "that the rights protected by the Due Process Clause are not merely procedural in nature. Justice Stevens disagreed with the plurality that the historical pedigree of a right is dispositive of its status under the Due Process Clause, and its suggestion "that only interests that have proved 'fundamental from an American perspective,' With this framework, Justice Stevens believed it necessary to examine the "nature of the right that petitioners have asserted," and "whether [the right asserted] is an aspect of Fourteenth Amendment 'liberty.
First, Justice Stevens stated that "firearms have a fundamentally ambivalent relationship to liberty. Furthermore, Justice Stevens stated the reasons that motivated the Framers or Reconstruction Congress to act "have only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today. Justice Scalia also wrote a concurring opinion, which takes issue with the substantive due process, or "liberty clause" analysis espoused by Justice Stevens.
Justice Scalia primarily critiqued the subjective nature of the standard proposed by the dissent, stating that any of the guideposts or constraints listed by Justice Stevens still leaves too much power in the hands of judges, ultimately depriving people of power. Justice Breyer issued a separate dissenting opinion, in which Justices Ginsburg and Sotomayor joined.
Noting Justice Stevens's conclusion that the Fourteenth Amendment's guarantee of substantive due process does not include a general right to keep and bear firearms for purposes of self-defense, Justice Breyer chose to consider separately the question of "incorporation" as the Court had done so when it asked "if the Second Amendment right to private self-defense is 'fundamental' so that it applies to the States through the Fourteenth Amendment. First, Justice Breyer revisited the Heller decision by stating that the Court had based its conclusion "almost exclusively upon its reading of history.
Given the Court's emphasis on the historical pedigree of the right, he thus posited "where Heller 's historical foundations are so uncertain, why extend its applicability? These factors include "the nature of the right; any contemporary disagreement about whether the right is fundamental; the extent to which incorporation will further other Justice Breyer applied these factors to the "private right of self-defense" as it is considered "the central component" of the Second Amendment by the Court in Heller.
Justice Breyer gave several reasons in support of this last factor, including that incorporation of the right recognized in Heller "would amount to an incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government.
Second, Justice Breyer returned to examine history after determining that none of the factors supported incorporation. Because the Court examined whether the interests the Second Amendment protects are "deeply rooted in this Nation's history and tradition," Justice Breyer declared that the question, thus, is not whether there are references to the right to bear arms for self-defense throughout the Nation's history as there naturally would be, but rather "whether there is a consensus that so substantial a private self-defense right as the one described in Heller applies to the States.
The plurality opinion criticized Justice Breyer's dissent on four grounds. First, it did not approve of his assertion that "there is no popular consensus" that the right is fundamental, stating that the Court has never used "popular consensus" as a rule for finding incorporation.
Although holding that the Second Amendment as recognized in Heller applies to the states, the Court did not decide whether the challenged municipal ordinances were in violation of the amendment, leaving the question for the lower court to examine. Because the McDonald decision was thus limited, a number of questions unanswered by the Court in Heller still remain, most of which are concerned with the scope of the Second Amendment.
First, what standard of judicial scrutiny will be used to decide if a firearms law is in violation of the Second Amendment? As discussed above, the Court in Heller did not specify a particular level of scrutiny, instead stating that the three challenged District of Columbia firearms provisions were unconstitutional "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.
Since McDonald , the U. Marzzarella , attempted to draw a framework for how to approach such cases when it held that a federal ban on possession of unmarked firearms was constitutional.
First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee citations omitted. If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny. If the law passes muster under the standard, it is constitutional. If it fails, it is invalid. With respect to the challenged federal statute, the defendant argued that because firearms in common use in did not have serial numbers, the Second Amendment must protect firearms without serial numbers.
The court was not convinced by this argument because it found that "it would make little sense to categorically protect a class of weapons bearing a certain characteristic wholly unrelated to their utility. The mere fact that some firearms possess a nonfunctional characteristic should not create a categorically protected class of firearms on the basis of that characteristic.
Looking to First Amendment jurisprudence for guidance, the court noted that even an enumerated, fundamental right may be subjected to varying levels of scrutiny depending on the circumstances. Second, does the Second Amendment right for purposes of lawful self-defense extend only to the home?
In both Heller and McDonald , the provisions challenged were those that prevented handgun possession in the home, and in each case the Supreme Court stressed the right of self-defense within the home as being central component of the right to keep and bear arms. However, the Court did not make clear if this similar protective right extend to a vehicle, a temporary living space, a place of business, or in public places?
Heller mentioned the possibility that the self-defense right has the potential to extend further upon "future evaluation. Third, what types of regulations would be burdensome enough to infringe on the Second Amendment right? Both Heller and McDonald emphasized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
Fourth, what types of weapons will fall within the protection of the Second Amendment? Heller determined that the Second Amendment protection extends to weapons that are "in common use at the time," and not those that are "dangerous and unusual. However, it is unclear if other types of so-called "assault" weapons, martial arts weapons, and clubs will be protected under the Second Amendment.
There have been recent challenges to state and local "assault weapons" bans, which have been upheld. In , the California Court of Appeals in People v. It is highly likely that these last three questions, which center on the scope of the Second Amendment, will result in future litigation. As courts begin to tackle these questions, they may draw from the Third Circuit's framework or develop their own standards.
For example, since the Marzzarella decision, the U. Skoien rejected a Second Amendment challenge to 18 U. Faced with evaluating the same federal provision as in Skoien , the U. Chester issued a decision to provide district courts in its circuit guidance on the framework for deciding Second Amendment challenges.
For this defendant and other similarly situated persons, the court declared that the government, upon remand, must meet the intermediate scrutiny standard and not strict scrutiny, because the defendant's claim "was not within the 'core right' identified in Heller —the right of a law-abiding , responsible citizen to possess and carry a weapon for self-defense—by virtue of [the defendant's] criminal history as a domestic violence misdemeanant.
See, e. See David C. See Ronald S. Mercy L. Notably, the defendant in Miller did not present any evidence in support of his argument. Interpretation of the Second Amendment. Scalia argues that the individual right interpretation of the Second Amendment is supported by scholars, courts, and legislators. Also, none of the Supreme Court ' s precedents forecloses the Court ' s individual right interpretation. He rejects Stevens ' notion that that Miller United States v.
Miller, U. Limitations on the Right to Keep and Bear Arms. Second Amendment rights are not absolute, according to Scalia. Standard of Determination. The Court did not identify the specific standard it used to make its individual-right determination. But it rejected the rational basis standard. The enumeration of that right, Scalia reasons:. A constitutional guarantee subject of future judges ' assessments of its usefulness is no constitutional guarantee at all Id.
In a strongly worded dissent, Justice Stevens, after conducting his own extensive analysis of the Second Amendment ' s text, history, and purpose, disparaged Scalia ' s historical analysis, stating that the Court had based its holding on "a strained and unpersuasive reading" of the amendment. In Stevens ' opinion, the amendment protects the individual right to bear arms only for certain military purposes and does not limit the authority of legislatures to regulate private, civilian use of firearms Id.
In contrast to Scalia, Stevens interprets Miller to mean that the Second Amendment protects the right to keep and bear arms for certain military purposes, but it does not limit government ' s power to regulate nonmilitary use and ownership of weapons Heller , at Stevens contends that many courts have relied on Miller, which is both the most natural reading of the amendment ' s text and the interpretation most faithful to the history of its adoption.
The dissent concludes:.
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