The Heller Decision and the Second Amendment

Most everyone is familiar with the Second Amendment.  It reads: 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.

Many people, however, are not familiar with a very important Supreme Court decision on the interpretation of the Second Amendment.  Although the decision favored the plaintiff who challenged a ban on individuals owning a handgun and the requirement to secure guns in the home, there are also some very key elements of the opinion that are often selectively ignored by gun rights advocates.

Below is an overview of this pivotal SCOTUS case provided by The Law Center to Prevent Gun Violence.  You can click here to read the entire Heller decision.


In 2003, Dick Anthony Heller and other plaintiffs challenged the District of Columbia’s decades-old laws banning possession of handguns and requiring firearms in the home to be stored locked or disassembled.

After the D.C. Circuit Court of Appeals ruled the laws unconstitutional under the Second Amendment (1) – the only time a federal appellate court had ever invalidated a gun law on Second Amendment grounds – the U.S. Supreme Court agreed to hear the case. This set the stage for the Court’s first ruling on the Second Amendment in almost 70 years.

The Court’s Holding: The Supreme Court issued its historic decision in District of Columbia v. Heller on June 26, 2008. (2) In a 5-4 ruling written by Justice Antonin Scalia, the Court held that the Second Amendment confers an individual right to possess firearms unrelated to service in a well-regulated state militia. The Court struck down the District’s ban on handgun possession,  finding that “the inherent right of self-defense has been central to the Second Amendment” and that handguns are “overwhelmingly chosen by American society” for self-defense in the home, “where the need for defense of self, family, and property is most acute.” (3) The Court also struck down the District’s requirement that firearms in the home be stored unloaded and disassembled or bound by a trigger lock or similar device, because the law contained no exception for self-defense.

An Abrupt About-Face From Prior Precedent: The Court’s ruling in District of Columbia v. Heller represents a radical departure from the Court’s previous interpretation of the Second Amendment in United States v. Miller, 307 U.S. 174 (1939). In the Miller case, the Court stated, in a unanimous decision, that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness of” the state militia, and the Amendment “must be interpreted and applied with that end in view.” (4) In reliance on Miller, hundreds of lower federal and state appellate courts have rejected Second Amendment challenges to our nation’s gun laws over the last seven decades. (5)

The Right is Not Unlimited: Although the Heller decision establishes a new individual right to “keep and bear arms,” the opinion makes clear that the right is not unlimited, and should not be understood as “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (6) The Court provides examples of gun laws that it deems “presumptively lawful” under the Second Amendment, including those which:

    • Prohibit the possession of firearms by felons and the mentally ill;
    • Forbid firearm possession in sensitive places such as schools and government buildings;
    • Impose conditions on the commercial sale of firearms.

The Court makes clear that this list is not exhaustive. (7) The Court also concludes that the Second Amendment is consistent with laws banning “dangerous and unusual weapons” not “in common use at the time,” such as M-16 rifles and other firearms that are most useful in military service. (8) Finally, the Court declares that its analysis should not be read to suggest “the invalidity of laws regulating the storage of firearms to prevent accidents.” (9)

The Standard of Review: The Heller decision fails to articulate a legal standard of review, or test, to be applied in evaluating other laws under the Second Amendment. Thus, the decision provides little guidance to lower courts or legislators, creating new uncertainty in this area and inviting litigation. (10)

The Second Amendment Applies Only to the Federal Government: Because Heller considered laws of the District of Columbia (a federal enclave), the Court stated that the question of whether the Second Amendment applies to the states is “a question not presented by this case.” (11) While the Heller Court did not rule on whether the Second Amendment applies to state or local governments, the Court did note its earlier decisions holding that “the Second Amendment applies only to the Federal Government.” (12) These decisions remain the law of the land.

1 Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).
2 District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
3 Id. at 2817.
4 United States v. Miller, 307 U.S. 174, 178 (1939).
5 The Heller Court dismissed the Miller case as not “a thorough examination” of the Second Amend- ment, and limited Miller to the proposition that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Heller, supra note 2, at 2814.
6 Id. at 2816.
7 Id. at 2817 n. 26.
8 Id. at 2817.
9 Id. at 2820.
10 Immediately after the Heller decision was issued, the gun lobby  led suits challenging handgun possession bans in San Francisco, Chicago and other Illinois communities. The San Francisco prohibition applies only to public housing.
11 Heller, supra note 2, at 2813 n. 23.
12 Id., citing Miller v. Texas, 153 U.S. 535, 538 (1894); Presser v. Illinois, 116 U.S. 252, 265 (1886); and United States v. Cruikshank, 92 U.S. 542 (1876).

(c) The Law Center to Prevent Gun Violence

What the Decision Means for Our Nation’s Gun Laws

While the Heller decision leaves many questions unanswered, one thing is clear: Gun regulation is alive and well in the United States. Elected officials and community leaders can feel confident that most common sense gun laws will be upheld. A strong legislative record – including facts regarding the problem sought to be addressed and the reasons why the proposed law is an appropriate response – is critical to maximizing the likelihood that a gun law will be affirmed by the courts.