Anthony Sculimbrene, Esq.
District of Columbia v. Heller
554 US 570 (2008)
The Second Amendment right to bear arms is a generalized individual right, whether the person is involved in a “militia” or not.
Voting Results: 5 to 4 (bold denotes current court member as 7/2017)
Majority: Scalia (author of the majority) joined by Roberts (Chief Justice), Alito, Thomas, and Kennedy
Dissent 1: Breyer (author), joined by Ginsburg, Souter and Stevens.
Dissent 2: Stevens (author), Ginsburg, Souter and Breyer
Voting Trend: In this case the Court broke down along its then-existing ideological lines with the more conservative justices siding with Scalia and the more liberal bloc of judges dissenting. At the time this case was decided Anthony Kennedy was the swing vote on the Court and the most centrist judge. He was the tie breaker here. In the subsequent related case – McDonald, the majority was written by Alito, a conservative judge, and the voting results were identical with the same five justices in the majority. This bodes well for Second Amendment rights; so long as the conservative bloc has five justices, the voting trend in Heller and McDonald is likely to continue in close cases. One other important note – Supreme Court tradition allows the Chief Justice, in this case Roberts, to either write the opinion himself or assign it to another justice, whether he is in the majority or in the dissent. Scalia’s focus on historical analysis and original interpretation made him ideal for writing this majority opinion. It is unlikely he was chosen at random, especially in light of Alito’s similarly ground opinion in McDonald where, again, Roberts was in the majority and had the right to assign the case to a justice.
This is the seminal case in Second Amendment law. All knife owners should be familar with Heller to some degree and any lawyer working on a case involving a knife should read Heller. (Read D.C.-v-Heller) This is a very long and complex case, but the holding, the principle of the case, is actually very simple.
Dick Heller was a security officer in Washington, D.C. assigned to work at the Federal Judiciary Building. He applied for a license to carry a handgun and was denied. He filed a lawsuit, lost at the trial level, but won at the appellate level. D.C. appealed to the U.S. Supreme Court. Thus, for the first time in U.S. history, the U.S. Supreme Court had a case that went directly to the heart of the Second Amendment. The constitutional provision in question had two parts. First, it banned all handguns (hence Heller being denied his license). Second, it required guns at home to be stored in a way that essentially rendered them inoperative (locked, unloaded, disassembled, with trigger locks, etc.) in self-defense scenarios.
There were two primary arguments in the case. One side claimed that the Second Amendment was a right that applied to individuals, that is, it gave individuals the right to bear arms. The other side claimed that the law was actually limited to individuals that were part of an armed militia. This side basically claimed that the Second Amendment did not have much application in the modern U.S. because there were no standing non-governmental militias. The Second Amendment, they argued, was a historical vestige, something like the Third Amendment that allows private citizens to refuse to quarter troops.
The Court opinion engaged in an extensive historical analysis of both the first clause of the Second Amendment (the “well-regulated militia” clause, called the prefatory clause) and the second clause (the “keep and bear arms” clause, called the operative clause). The Court, relying on extensive analysis of historical legal sources from the time of the Founders, declared that the prefatory clause was not a limitation on the right to bear arms, but an example or goal of why the right to bear arms is important. The prefatory clause explains WHY the right to bear arms applies to individuals, but it does not limit the individuals that can possess arms only to those in a militia. Once the Court decided that, it then moved to a definition of “keep and bear arms.” It noted that while there were some sources that indicated “bear arms” meant to use them in a military role, the majority of sources showed that “bear arms” meant to carry them on one’s person.
The Court then turned to the definition of “arms.” This is the portion of the opinion most interesting to knife owners. First, the court held that “dangerous and unusual” arms were not protected by the Second Amendment. They gave an example from an older case, United States v. Miller that found that short-barreled shotguns were not “arms.” The Court noted, however, that “arms” does not mean only those weapons used as arms at the time of the Revolution. In fact, the Court noted that like all constitutional rights, the Second Amendment adapts with the times, thus arms does not mean only long guns like those found in the militias of Revolutionary America. The Court then explained that arms were those weapons commonly possessed by people that could be used in a militia but were also useful in self-defense. Here the Court looked at historical sources and found that weapons used in hunting applications were a good example of “arms.” The Court references a Quaker source that defined arms suitable for self-defense as hunting rifles and knives. The Court continues on and says that the Second Amendment does not prohibit ALL regulation of arms, citing, again, dangerous and unusual weapons, restrictions of place of carry, and restrictions on concealed carry.
After defining each part of the Second Amendment, the Court quickly dispatches the D.C. law. It finds that the law is a categorical ban on a kind of weapon that counts as an “arm” under the Second Amendment. It also notes that the home storage restriction severely (or completely) curtails the possibility of keeping a weapon in self-defense. The Court notes that self-defense is a powerful, “natural” right and that it is one of the core aspects of the Second Amendment. As such, the handgun ban was unconstitutional because it impacted arms protected by the Second Amendment. The home storage requirements were unconstitutional because they too impacted an area directly protected by the Second Amendment – use of weapons in self-defense.
The Court provided a brief analysis of the “gun violence” issue and noted that it was one of concern for the country, but the Second Amendment takes certain “solutions,” such as per se gun bans, off the table in the United States.
Notes for Knife Owners
This is the first case to directly address what is protected by the Second Amendment. It sets a floor below which regulations and laws cannot go. Laws cannot universally ban handguns or other firearms that are not “dangerous or unusual.” The case only makes one reference to knives and though it seems commonsensical that knives would also be protected, subsequent courts around the country, reading Heller, have disagreed on this point. As such, knife owners should not assume that the Second Amendment, post-Heller protects their tool of choice. Furthermore, the Court notes that not all restrictions on arms, including concealed carry restrictions, are per se unconstitutional.
- Point 1: Heller does not explicitly protect knives, only certain kinds of firearms.
- Point 2: Be careful how you carry your knife – concealed carry regulations are not unconstitutional under Heller.
Notes for Attorneys
As the source of all individual rights pursuant to the Second Amendment, Heller should be the alpha and omega of knife litigation. Many courts reading the case have noted that knives are not explicitly covered. This is true – possession of knives is not integral to the holding in Heller. However, every court that has considered this issue as of July 2017 has glossed over the Court’s reference to knives in the recounting of a Quaker historical source. The Court, in this passage of the opinion, is trying to use historical sources to define arms and their role in self-defense. The Court, in analyzing this source, writes: “so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though ‘…[i]n such circumstances the temptation to seize a hunting rifle or a knife in self-defense…must sometimes have been almost overwhelming’…” D.C. v. Heller at 590. This passage, though admittedly dicta, clearly assumes that the definition of “arms” includes knives. Heller is also important for outlining the limits on what laws can regulate. Assuming that Heller applies to knife possession, check for laws that ban entire classes of knives or regulations that make it impossible or very difficult for knives to be used in self-defense. Again, note that self-defense on the street is one thing, and looked upon less favorably than self-defense in one’s home where universal bans or significant regulation is less likely to be helpful. Finally, in outlining the importance of self-defense, Heller does a very good job of taking what is usually a state statutory defense/right and putting it into the U.S. Constitution. This could be useful in all cases involving self-defense, not just knife-related cases.
- Point 1: Though many courts assume knives are covered by Heller, some, correctly, point out that they were not part of the holding.
- Point 2: Even if they were not explicitly part of the holding, the historical analysis does likely include knives.
- Point 3: There is an explicit mention of “knives” in the opinion, though in dicta.
- Point 4: Compare the knife law to the D.C. law here – does it ban an entire class of knife or regulate use in the home for self-defense?
- Point 5: The language regarding self-defense here is incredibly powerful, all but making self-defense a constitutional right under the Second Amendment.