Vail Law: Seminal U.S. legal cases, part five: Heller |

Vail Law: Seminal U.S. legal cases, part five: Heller

There is little debate over what the Second Amendment to the United States Constitution says. Since the 1970s, however, a cultural war has raged over exactly what the Second Amendment was intended to mean.

Like much else in the Constitution, the amendment is a wee little bit of thing but it packs a punch. It holds, in its entirety, “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.”

Yep. That’s it. Count ‘em; 27 words, one comma and a period.

Like the universe itself, expanding at some inconceivable warp, it is nearly impossible to grasp how many words these 27 have conceived in their interpretation.

Some folks read the words comprising the Amendment strictly; the right of the citizens to bear arms is limited to the purpose of arming a militia. Others see the Amendment as a no-holds-barred right to possess nearly any weapon they wish for virtually any purpose. The right, they say, is a backstop against tyranny.

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Making the case

In support of their particular slant, each side has tried to reach into the very minds of the framers attempting to resurrect — or perhaps bend — their thinking in support of their particular position.  Jefferson thought “x”; Madison “y”; John Jay and Alexander Hamilton weighed in with “w” and “z”.

What remained unsettled though, at least until the United States Supreme Court weighed in District of Columbia vs. Heller in a 5-4 decision, was whether the Second Amendment protects an individual’s right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home.

Heller was decided in 2008. Five members of the “Heller Court” — three from the majority and two from the minority — are still on the nine-member Supreme Court bench.

Provisions of the District of Columbia Code made it illegal to carry an unregistered firearm and, with some exceptions, generally prohibited the registration of handguns. The Code also contained provisions that required owners of lawfully registered firearms to keep them, “unloaded and disassembled or bound by a trigger lock” unless the firearms were located in a place of business or being used for legal recreational activities. 

Dick Anthony Heller was a D.C. special police officer who was authorized to carry a handgun while on duty. He applied for a one-year license — which the Code permitted the chief of police to issue — for a handgun he wished to keep at home. When his application was denied, he sued the District of Columbia, seeking an injunction against the enforcement of the relevant parts of the Code, arguing they violated his Second Amendment right to keep a functional firearm in his home without a license.

After the District Court dismissed the complaint, the U.S. Court of Appeals for the District of Columbia reversed the lower court and held, instead, that the Second Amendment does in fact protect the right to keep firearms in the home for the purpose of self-defense and, further, that the District’s requirement that firearms be kept in the home in a nonfunctional state, violated that right. 

Up to the Supremes it went.

The specific and succinct question posed to the Court was, “Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms that are kept in the home to be kept nonfunctional violate the Second Amendment?”

For the majority

The late Justice Antonin Scalia delivered the majority opinion. The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. What’s more, the term “militia” should not be confined to those serving in the military as, at the time, the term referred to all able-bodied men who were capable of being called to service. To interpret the Amendment as limiting the right to bear arms to only those in military service would be to create precisely the type of state-sponsored force against which the Amendment was meant to protect the people. As such, and reading the Amendment in the manner meant to give the greatest effect to what the Court interpreted to be is plain meaning at the time that it was penned, the operative clause — the right of the people to keep and bear arms — should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.”

Flowing from this interpretation of the Amendment, the Court held, banning handguns, an entire class of arms that is commonly used for personal protection, and prohibiting firearms from being kept in the home — and areas traditionally in need of protection — in functional condition, violates the Second Amendment. 

In his dissent, Justice John Paul Stevens wrote that the Second Amendment does not create an unlimited right to possess firearms for self-defense purposes. Rather, the plain language of the Amendment makes clear that right extends to military purposes but does not curtail the legislature’s power to regulate non-military ownership and use. Taking exception to the majority’s “self-defense” rationale, Stevens noted that not only does the Amendment make no mention of self-defense but similar state provisions from the same time the Amendment was crafted do. If the Framers meant for the Amendment to provide for self-defense, they would have said so.

Heller was a seminal decision. What it held — explicitly for the first time — was that the right to bear arms is an individual right and one reserved by the Second Amendment to the people. This is the law until such time as this may be reconsidered, which in consideration of the current conservative bent of the Court and the fact of Justice Ginsburg’s recurrent illness, may be a long time seeing light.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,

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