Last updated January 25, 2010
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"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."
The Heller Decision: A Radical Departure from Longstanding Second Amendment Case Law
The law regarding the meaning of the Second Amendment changed dramatically in 2008, when the U.S. Supreme Court held for the first time that the Second Amendment guarantees an individual right to possess a firearm in the home for self-defense. In District of Columbia v. Heller, the Court struck down Washington, D.C.’s decades-old ban on handgun possession, and the requirement that firearms in the home be stored unloaded and disassembled or bound by a locking device (a requirement which had no exception for self-defense).
The Supreme Court stated, however, that the Second Amendment should not be understood as conferring a "right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." The Court identified examples of "presumptively valid" firearm laws, including laws prohibiting firearm possession by felons and the mentally ill, forbidding firearm possession in sensitive places such as schools and government buildings, and imposing conditions on the commercial sale of firearms. The Court noted that this list is not exhaustive, and concluded that the Second Amendment is also 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. In addition, the Court declared that its analysis should not be read to suggest "the invalidity of laws regulating the storage of firearms to prevent accidents." LCAV's Heller page has more information about this many difficulties created by this decision.
The ruling in Heller represented a radical departure from the Court's previous interpretation of the Second Amendment. In United States v. Miller, 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. In reliance on Miller, hundreds of lower federal and state appellate courts had rejected Second Amendment challenges to our nation’s gun laws over the last seven decades, making Heller's reversal of this interpretation a watershed moment in Second Amendment law.
The Second Amendment After Heller
The Heller decision has led to a flood of litigation, resulting in over 200 decisions on federal and state Second Amendment challenges to our nation's gun laws. A dozen significant lawsuits have been filed against state and local governments and numerous criminal defendants and appellants have challenged a wide variety of federal and state firearms laws on the basis of Heller. Much of the emerging litigation raises the threshold issue of whether the Second Amendment restricts state and local governments, as well as the federal government. The Supreme Court did not reach this issue in Heller, because the case involved only the laws of the District of Columbia (which is a federal enclave). Although Supreme Court precedent holds that the Amendment does not apply to the states, the Court has agreed to review this rule in McDonald v. Chicago.
LCAV's Work on Second Amendment Issues
As the nation's only organization devoted exclusively to providing legal assistance in support of gun violence prevention, LCAV is actively involved in supporting state and local governments' defense of Second Amendment litigation, educating courts, governments, and the public about the meaning of the Second Amendment, and developing common sense gun violence prevention legislation that complies with the Heller decision.
Second Amendment Resources
District of Columbia v. Heller
Important Pending Cases
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McDonald v. Chicago: McDonald v. Chicago is a U.S. Supreme Court raising the issue of whether the Second Amendment restricts the actions of state and local governments. The Court is reviewing a Seventh Circuit decision that affirmed the dismissal of Second Amendment challenges to handgun bans in Chicago and Oak Park based on Supreme Court precedent holding that the Amendment applies only to the federal government. LCAV's McDonald page explains the case's significance and links to key McDonald resources. The United States Supreme Court will hear McDonald v. Chicago on March 2, 2010.
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Nordyke v. King: In Nordyke, plaintiff gun show promoters challenged an Alameda County ordinance prohibiting the possession of firearms or ammunition on County property. In an April 20, 2009 decision, the Ninth Circuit became the first federal appellate court to hold that, after Heller, the Second Amendment applies against state and local governments, although the court concluded that the ordinance did not violate the Second Amendment. This case was reheard en banc by the Ninth Circuit on September 24, 2009, and has been stayed pending the Supreme Court's decision in McDonald.
Pre-District of Columbia v. Heller Second Amendment Materials
