法律英语：30 Handguns in D.C.

by Michael W. Flynn

 

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2. Further, I do not intend to create an attorney-client relationship with any listener.

Today is part 2 of the 2008 Supreme 3 Court roundup, and I will discuss a Second Amendment 4 case in which the Court struck down Washington, D.C.’s handgun ban.

The Second Amendment to the Constitution states very simply:

A well regulated Militia 5, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed 6.

The Second Amendment has rarely been discussed in Supreme Court opinions. In fact, the last opinion to deal with this Amendment was in 1939 when the Court addressed the constitutionality of a law prohibiting sawed-off shotguns.

The text of the Amendment took center stage when Dick Heller, an armed security guard, sued the District after it rejected his application to keep a handgun at his Capitol Hill home a short distance from the Supreme Court building. The 1976 D.C. handgun law prohibited most citizens from having handguns in their homes, and required that all firearms be equipped with trigger locks, or be kept disassembled.

In a 5-4 decision penned by Justice Scalia, the court struck down the handgun ban, the trigger lock requirement, and the disassembly requirement, but generally upheld D.C.’s licensing 7 requirements.

The basic question before the Court was whether the Second Amendment granted an individual right to bear arms, or a collective right to bear arms when connected with a militia. Proponents 8 of the D.C. law argued that the prefatory, or introductory clause of the Amendment showed that the right was necessarily tied to service in a militia. The prefatory clause states that “A well regulated Militia, being necessary to the security of a free State,” and so the proponents of the law argued that any right to have a gun was related to service in a militia, not with self-defense in the home. Opponents of the law argued that self-defense was contemplated 9, and that the Second Amendment was also passed in part to allow local governments the ability to defend themselves against the Federal government.

In the end, the Court sided with the opponents of the law, striking it down.

But what does this case mean to the average American? First, there is an unsettled issue of whether this case will apply to state laws prohibiting handguns. The case only dealt with a law in D.C., which is not a state. The Court has held that many provisions of the Bill of Rights, such as the Fourth Amendment’s reasonable search and seizure 10 requirements, apply to the states through the Fourteenth Amendment. However, the Court has not held that all Federal Constitutional provisions apply to the states automatically, and so the question of whether this case applies to the states is still an open one.

Also, this case will not likely affect laws pertaining 11 to hunting or the guns used for hunting. The opinion focused in large part on the self-defense needs of people living in densely-populated urban areas, not hunting.

Last, this case will not likely affect state and local governments’ abilities to regulate handguns by denying the right to possess them to felons 12 or the mentally ill, or to limit handguns in buildings such as schools and courthouses. Justice Scalia expressly noted 13 so in his majority opinion, and the case seems only to have addressed a wholesale 14 ban on handguns.

However, one thing is for sure: this case will (and already has) sparked a number of lawsuits 15 around the country in which current or prospective 16 gun owners are challenging gun regulation.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful 17 Life. You can send questions and comments to.........or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.