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D.C. v. Heller: 

The Supreme Court Decides a Second Amendment Case 

by 

Jeff Fluck 

Senior Instructor 

Legal Division, FLETC 

“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.” 

Introduction 

Perhaps the drafters of these words, the Second Amendment of our Constitution’s Bill of 

Rights, knew exactly what they meant. But ambiguity always lurks. The Amendment’s 

ambiguity emerges from the inability to determine which of its two clauses is the prime 

directive: “(clause 1) A well regulated Militia, being necessary to the security of a free State, or

(clause 2) the right of the people to keep and bear Arms, shall not be infringed.” That ambiguity 

has spawned a controversy that arouses passion and touches fundamental issues of individual 

rights and law enforcement. After reviewing scores of briefs submitted by more than sixty 

interested parties and hearing arguments on March 18, the Supreme Court, itself divided 5–4, 

resolved the ambiguity on June 26, 2008. 

 The Supreme Court held that the Second Amendment validates a pre-existing individual 

right to keep and bear arms. Clause 2 is the prime directive. Some specific District of Columbia 

statutes were stricken down because they violated the Second Amendment. They also suggested, 

however, that state and federal governments can reasonably restrict this right. The opinion 

suggests that most existing federal firearms laws do not violate the Constitution. The specific 

effect is that D.C. residents can: (1) license a handgun to possess in their homes and (2) may 

possess loaded, functional firearms in their homes. Important issues remain. 

The General Controversy 

What does the Amendment mean? Here are the two predominant points of view. 

 Collective state right. The Amendment’s first clause is the prime directive and the 

Amendment guarantees each state the collective right to maintain a militia of citizen-soldiers 

despite the Constitution’s unified federal system of national defense. In this view, people are 

able to keep and bear arms because doing so furthers that collective right. It follows that legal 

restrictions on possessing, carrying and using firearms outside the militia would not generally 

violate this limited right to keep and bear arms. Those favoring gun control like this 

interpretation. 

 Individual rights. The Amendment’s second clause is the prime directive and the 

Amendment secures each individual’s right to keep and bear arms. In this view, this basic right 
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exists for many reasons. Fundamentally, for example, the right allows individuals to defend and 

feed themselves and their families. In this view, such reasons were too obvious for the drafters 

to note. Maintaining a militia is just one more good reason to allow the people to keep and bear 

arms. The Amendment’s drafters chose to state the militia rationale to fit the Amendment into 

the Constitution’s larger discussion of the relation between the existing states and the federal 

government. If the Amendment does grant the right to each person, it follows that legal 

restrictions on possessing, carrying and using firearms would more often violate this broad, 

fundamental and individual right to keep and bear arms. Those favoring gun rights like this 

interpretation. 

The specific controversy in Heller

The District of Columbia had arguably the most restrictive gun control measures in the 

nation. A group of D.C. residents sued the District, claiming that the net effect of three of these 

laws violated the Second Amendment. The first law [D.C. Code § 7-2502.02(a)(4)] sets out 

licensing requirements. The second law [D.C. Code § 22-4504] prohibits carrying handguns 

without a license (apparently even when moving a gun from one place to another inside one’s 

home). The third law [D.C. Code § 7-2507.02] mandates that all lawfully-owned firearms be 

kept both unloaded and either disassembled or secured by a trigger lock or similar device. 

Most of the plaintiffs claimed that these three laws violated their individual rights under 

the Amendment to possess what they describe as “functional firearms” - those that could be 

“readily accessible to be used effectively when necessary” for self-defense in the home. The 

plaintiffs did not assert a right to carry such weapons outside their homes. Nor did they challenge 

the District’s authority per se to require the registration of firearms. 

Heller was a guard at the Federal Judicial Center on Columbus Circle who carried a 

handgun while on duty. His claim was stronger. After finding a bullet hole in his own front 

door one day after work, he wanted to keep a handgun in his D.C home for self-defense, so he 

applied for a license. Citing the first law listed above, the District of Columbia refused to give 

him a license. This gave rise to a neat anomaly: Heller was required to carry a loaded sidearm 

while guarding the Judicial Center in the District, but was denied the right to keep a loaded 

firearm of any sort to protect himself in his D.C. home. Heller’s situation nicely framed the 

general controversy discussed above. If the Amendment guarantees the individual right to keep 

and bear arms, surely these D.C. laws violate that right in his case. 

In May 2007, the D.C. Circuit [split 2-1] (478 F. 3d 370), ruled that D.C.’s laws, at least 

as applied to Heller, violated the Amendment and that Heller should be able to get a license for a 

handgun. The District of Columbia quickly appealed. The Supreme Court took the appeal on 

this limited basis: 

Whether the following provisions— D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), 

and 7-2507.02—violate the Second Amendment rights of individuals who are not 

affiliated with any state-regulated militia, but who wish to keep handguns and 

other firearms for private use in their homes. 
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The Supreme Court Decision 

Justice Scalia wrote the opinion for the five Justices (Roberts, Scalia, Thomas, Alito and 

Kennedy) in the majority. The four Justices in the minority (Stevens, Ginsberg, Breyer and 

Souter) joined in two dissents written by Justice Stevens and Justice Breyer. Justice Scalia 

marshaled grammar, history and precedent to find that the Second Amendment validates a preexisting individual right to keep and bear firearms. Because D.C.’s statutes absolutely ban the 

exercise of that right in a citizen’s home for the fundamental purpose of self-defense, the statutes 

violate the Constitution. “Assuming that Heller is not disqualified from the exercise of Second 

Amendment rights, the District must permit him to register his handgun and must issue him a 

license to carry it in the home.” This is now the law. 

Each dissenter raised a separate point. Justice Stevens argued that the collective rights 

interpretation is correct. Justice Breyer argued that even if the individual rights interpretation is 

correct, the D.C. statutes are reasonable constraints on that individual right. Although the 

controversy between Justice Scalia and Justice Stevens garners the attention of enthusiasts, the 

argument is over, at least for now. Justice Breyer’s dissent addressed one side of the coming 

fight, and that is where we turn next. 

Remaining Issues 

Will this case apply to state laws? The Second Amendment restricts federal 

encroachment of constitutional rights; it does not apply directly to limit state governments. 

Instead, it must get a boost from the Fourteenth Amendment. This boost is likely, however, for 

several reasons. 

 1. Virtually all of the Bill of Rights’ other provisions have already received this boost. 

 2. Like freedom of speech and religion, it is a right broadly extended to all citizens rather 

than a right more narrowly granted to those accused of a crime. It would be odd to say that the 

Constitution demands that Illinois hire a lawyer for an accused killer, but that the Constitution 

cannot address whether Illinois chooses to disarm that killer’s intended victim. 

 3. It is the kind of individual right that must have been on the mind of the Fourteenth 

Amendment’s drafters. The Fourteenth Amendment was crafted in the aftermath of the Civil 

War to prevent resurgent Southern states from stripping the rights of the newly free by violence 

and intimidation. The right to keep and bear arms must have been seen as a core right when the 

back-roads of the South teemed with armed gangs of night-riders. 

When does the government’s need to regulate trump a constitutional right? The 

Constitution’s broad grant of an individual right is almost never absolute. Freedom of speech is 

not freedom to slander or lie in court, for example. Thus, governments can pass statutes 

punishing perjury. The courts have developed a series of standards to decide whether a given 

statute improperly violates a constitutional right. 
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As Justice Breyer points out, at one extreme, judges can begin with the assumption that a 

statute must survive “strict scrutiny” to avoid being presumed unconstitutional. At the other 

extreme, as long as the statute has some “rational basis,” it should be presumed to be 

constitutional. Between these two extremes, there are a number of “intermediate standards of 

review.” Which should apply in deciding whether the Second Amendment demands overturning 

a law which restricts firearms ownership, possession or carry? 

The majority opinion declines to decide. They confine their holding to the D.C. statutes 

before them. Justice Scalia suggests, however, that many familiar existing federal firearms 

statutes should be found constitutional: 

 [N]othing in our opinion should be taken to cast doubt on longstanding 

prohibitions on the possession of firearms by felons and the mentally ill, or laws 

forbidding the carrying of firearms in sensitive places such as schools and 

government buildings, or laws imposing conditions and qualifications on the 

commercial sale of arms....” [Nor should it cast doubt on] prohibiting the 

carrying of “dangerous and unusual weapons.” 

 No doubt it is too soon to predict much more. But here are some preliminary thoughts. 

Most federal firearms statutes should survive, mainly because of their longevity and commonsense underpinnings. Longstanding restrictions [like the heavy controls on possessing machineguns] become comfortable parts of national consensus. Common-sense restrictions [like the ban 

on felons possessing firearms] prevail because of their unassailable logic. 

How about new restrictions, especially those originating in state legislatures? It is 

impossible to predict. On the one hand, these words of the majority opinion set a major hurdle to 

both new restrictions and existing extreme restrictions like the D.C. statutes: 

The very enumeration of the right takes out of the hands of Government... the 

power to decide on a case-by case basis whether the right is really worth insisting 

upon.... [T]he enshrinement of constitutional rights necessarily takes certain 

policy choices off the table [emphasis in the original]. 

 

On the other hand, the need for guns and gun control is driven by local conditions, and it 

is sensible to give local legislatures room to respond to them. What makes sense in rural upstate 

New York may not make sense in the streets of Manhattan. 

The initial D.C. response and the litigation it may spawn will provide clues. On July 14, 

D.C. announced regulations which try to satisfy all sides. The regulations allow residents to 

apply for pistol permits. A written examination, proof of residency, good vision and ballistic 

testing are required along with payment of a fee and agreement to fingerprinting and criminal 

background checks. The proposed regulations do not lift restrictions on semiautomatic 

handguns, a move that will probably land the District back in court. 
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Summary 

The Second Amendment guarantees an individual right to keep and bear arms. That right 

is adequate to strike down extreme gun control laws like the D.C. ban on having operable 

handguns and other operable firearms in the home for self defense. That right is not absolute, 

however. Governments can regulate firearms ownership, possession and carry. There is no 

binding guidance yet on how far that regulation can go before violating the Second Amendment. 

It appears likely that most existing federal firearms regulations would be deemed constitutional if 

challenged. Extreme gun control laws like the D.C. ban are in trouble. In fact, the National 

Rifle Association has already filed five lawsuits against such bans in Illinois and California. But 

where the line will be drawn between constitutional and unconstitutional statutes cannot be 

predicted. Cases will be filed, appeals will be taken and, perhaps, a future Supreme Court will 

provide more precise guidance. 

Click HERE for the court’s opinion. 

Jeff Fluck served on active duty as an Army judge advocate. Assignments included prosecutor, chief of criminal law, 

and officer-in-charge [OIC] of five legal offices. Deployments included Desert Shield/Storm to Saudi Arabia with the 2d 

COSCOM and Vigilant Warrior to Kuwait with the 24th Infantry Division. He also trained military police at Forts McClellan 

and Leonard Wood. He is a graduate of Haverford College and Washington and Lee University Law School. Jeff is the Legal 

Division Subject Matter Expert on federal firearms violations.