The Right to Own a Gun Under Heller

How far does the Supreme Court’s ruling on an individual’s right to own a gun under Heller go?

In District of Columbia v. Heller, 54 U.S. ___ (2008), the U.S. Supreme Court ruled that the U.S. Constitution protects an individual’s right to own a gun for personal use. Yet despite the Court’s clear ruling that people may keep a loaded handgun at home for self-defense, Heller allows for certain restrictions to gun ownership. The ruling leaves many uncertainties as to which types of gun control laws will be allowed to stand and which will be ruled unconstitutional.

What Heller Says

The Heller case involved a challenge to the District of Columbia’s ban on handguns. For the first time in nearly 70 years, the U.S. Supreme Court ruled on the meaning of the Second Amendment to the U.S. Constitution as it relates to gun control laws.

The Second Amendment provides that “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.”

For many years, scholars and anti-gun proponents have argued that the Second Amendment provides a right to own guns only in connection with service in a militia, and that this right should not extend to private individuals. That argument was roundly rejected by the Supreme Court. In an opinion authored by Justice Antonin Scalia, the Court held that the right to own a gun is not connected with service in a militia; rather, it is a personal right to own a firearm for “traditionally lawful purposes” such as self-defense within the home.

The bottom line: You have a constitutional right to possess a firearm regardless of whether you are serving in a militia. But just how far that right extends remains up in the air.

How Heller Affects Gun Control Laws

How much the ruling in Heller will affect gun control laws in various cities and states remains to be seen.

The gun control law at issue in the Heller case — a nearly across-the-board gun ban in the District of Columbia — was considered to be the strictest gun-control law in the nation. Because the Supreme Court’s ruling concerned only this strict ban on handguns, the decision leaves unclear whether less-stringent bans in other states and cities will survive constitutional challenges.

And, although the Supreme Court’s decision adopted the broader, individual-rights interpretation of the Second Amendment, the Court also made it clear that the right to own a gun continues to have a number of significant qualifications or restrictions, including:

  • Not everyone can own a gun. The right does not extend to felons or the mentally ill.
  • Guns cannot be carried everywhere. Laws forbidding individuals from carrying  firearms in “sensitive” places, such as schools and government buildings, will probably stand.
  • Certain restrictions on the sale of guns are allowed. Laws imposing conditions and qualifications on the commercial sale of firearms will most likely stand.
  • Individuals do not have the right to carry certain types of guns. The right does not protect guns that are not generally owned for lawful purposes, such as short-barreled shotguns. Just what kind of handguns may be possessed is not explicitly set forth in the opinion (apart from the one specific reference to sawed-off shotguns, which are not allowed).  The Court did endorse the “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,'” but did not state whether such weapons include assault weapons or semi-automatic weapons.

Given this long list of qualifications, it remains unclear how Heller will affect the many different types of gun control laws that exist in cities and states throughout the country.

New Challenges to Gun Control Laws

One thing is for sure: Advocates all over the country will now challenge gun control laws based on the Supreme Court’s ruling in Heller. Within a day of the decision, lawsuits challenging gun control laws had been filed in Chicago and San Francisco, and additional challenges are expected in New York, Philadelphia, Detroit, and countless other cities.

While gun rights advocates like the National Rifle Association hailed the Supreme Court’s decision as a welcome addition to their arsenal in the ongoing war against gun control laws, only time (and future court decisions) will tell whether the Court’s ruling marks the beginning of a comprehensive rollback of gun control restrictions in this country or is merely a symbolic ruling that will ultimately leave most of those laws in effect.

To learn more about how the criminal justice system works, including the latest U.S. Supreme Court decisions, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo).

© 2009 Nolo