D.C. Gun Ban Unconstitutional and Overturned

By Alan Korwin, Author of Gun Laws of America
June 27, 2008

Second Amendment Protects an Individual Right Unconnected with Militia
Service, and is preserved by a single vote

Use of firearms for traditional lawful purposes such as self defense at
home is a protected right

The history, precedents, scholarship and wording of the Second
Amendment support the Court's decision

The idea that a lawful firearm at home must be locked or disassembled
prevents a core legal use of self defense and is unconstitutional.

The High Court instructs D.C. to let Heller have a firearm at home.

BUT:

The Second Amendment like most rights is not an unlimited right and
some 'longstanding restrictions' on what you can carry, where you can
carry (schools and government buildings are mentioned), concealed carry,
existing laws regarding felons or the mentally ill, and laws "imposing
conditions and qualifications on the commercial sale of arms" are
permissible.

Because Heller conceded at oral argument that a gun license would be OK
if it wasn't arbitrary or capricious, a D.C. license would satisfy his
request for relief, the Court tells D.C. it must permit him to register
his handgun and must issue him a license to carry it at home. Any other
possession or use appears to not be directly addressed, including
carrying it to or from home. Conditions for such registration and
license are not addressed, and are apparently left up to the city.

Lack of time frame on D.C. to act to remedy Heller's situation, and
lack of directions on what they should do could lead to bizarre results
or endless delays and further legal action. The cost, duration and
conditions for Heller's (and other residents') license are unknown,
skeptical guesses aren't pretty. Mayor Fenty has already said in a
"news" conference they won't allow semi-automatics, the most popular
sidearm and standard issue for the armed forces.

Full-blown gun bans around the nation are now in jeopardy, but there
are few of those. Challenges to other laws, and proposals for new laws
are likely, as the debate continues unabated. There are no time frames
for action, which will fall to legislative process and court cases, and
will likely take years.

Support for specified gun controls is dangerously great, but will be
met with also great supports for individual rights to arms, self defense
and lawful gun use.

Both sides get something; Antis are expected to simply walk away from
concocted "collectivist" inventions and promote the "reasonable,
common-sense goal" of more and stronger gun-control laws, many of which
are expressly supported in the opinion, to limit rights Americans
currently enjoy.

There will be little "final result" and the struggle will continue at
every level.

A loud sigh of relief for recognition of an individual right was heard
nationwide, but so was hope for creative new limits on the rights of the
people to keep and bear arms. Both sides will be busy issuing demands,
"definitive" statements, and arguing their side with vigor. Only one
side will be concerned with preserving the right of the people to keep
and bear arms in an uninfringed manner.

Four Justices joined in a 46-page dissent expected from Stevens, and
three joined a separate 44-page dissent by Breyer, making the dissents
longer than the 64-page majority opinion.

Stevens quickly abandons the individual v. collectivist theories,
saying of course there is an individual right, and focuses on perceived
historical errors and allowable gun-rights limitations. It clings to the
militia-purpose argument for the Second Amendment.

Breyer objects on two grounds -- that the Second Amendment is about the
militia and not self defense, and that gun controls are "within the
zone" of legislative action. He argues that a total ban on handguns in
high-crime areas is a "permissible legislative response." This is a very
hasty sketch of the dissents in the interest of an early posting of the
findings.

My analysis of the complete decision and dissents is ongoing and will
be released soon.

CAUTION: Quickly surveyed news reports show, as predicted, little news
and plenty of opinion are being shoveled; pretty (or handsome) talking
heads in front of the Supreme Court building are making it up as they go
with little depth of understanding of what just happened; promotion of
"acceptable" gun control a common theme; ignorance of guns and gun
issues abound; loops of gun pictures and target practice proliferate;
few of the factual points in the headlines above are included.

No one has read the entire opinion yet, so all comments are subject to
revision and likely contain errors, omissions and oversights, lack of
nuance, reasoned projections, etc.

Scalia wrote the majority opinion as expected

Less than three hours ago, the U.S. Supreme Court released its 157-page
decision in District of Columbia v. Heller, the landmark case on the
Second Amendment.

The Court affirmed the decision of the Circuit Court below it,
overturning the D.C. gun ban, and recognizing an individual right to
keep and bear arms.

The Court's official summary is readable and short, and provides the
best early review of the case. Here it is.