The 2nd Amendment, in the Words of the US Supreme Court
With the recent national discussion about gun laws and what is, and is not, protected by the 2nd Amendment to the U.S. Constitution, I found myself pulling up the recent Supreme Court decisions to refresh my memory of how the Court has interpreted the law. I reviewed McDonald v. City of Chicago, 130 S.Ct 3020 (2010) and District of Columbia v. Heller, 128 S.Ct. 2783 (2008). In both of these cases, the Court overturned local government handgun bans as unconstitutional and in violation of the 2nd Amendment. The DC case contains more analysis of the substantive 2nd Amendment issue and historical precedent. The Chicago case has some of this as well, but relies on DC as precedent and focuses more on the issue of States’ rights, and whether the 2nd Amendment binds the States (and local municipalities other than the District of Columbia). In DC, the justices formed a 5-4 majority; Justice Scalia wrote the majority opinion. Several of the justices wrote dissenting or concurring opinions, such that the entire case opinion printed is about 60 pages long. In Chicago, the Court formed a 5-4 majority ruling on the central issue, that the 2nd Amendment was binding on the States, and the Court’s opinion was written by Justice Alito. However, the opinion contained several portions in which Justice Thomas did not join, and so these portions are merely a “plurality” opinion and not part of the majority ruling. Again, several of the justices wrote dissenting or concurring opinions as well, so that the entire Chicago case opinion is about 79 pages. But keeping in mind in both cases the majority opinion (and the plurality in Chicago) was written by one of the more conservative justices (Scalia and Alito), the court rulings (as well as the dissenting and concurring opinions) are instructive of where there may be common ground among the full court. So with that introduction, here are selections of the majority opinions, by Justices Alito and Scalia in their own words (I have italicized the full quotes and bolded portions I find particularly relevant to current 2nd Amendment discourse). I would highly encourage anyone interested in this topic to read the full opinions in both cases, all 60 pages and 79 pages, to help understand the historical context and the different legal arguments at issue.
Justice Alito in Chicago describes the DC case holding as follows: “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. Explaining that the need for defense of self, family, and property is most acute in the home, we found that this right applies to handguns because they are “the most preferred firearm in the nation to keep and use for protection of one’s home and family.” Thus we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” 3036.
Justice Scalia in the DC decision added the following, affirming some longstanding limitations on 2nd Amendment rights, such as for mental illness or felony convictions:
“Like most rights, the right secured by the Second Amendment is not unlimited….Nothing 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.” 2816-2817.
Justice Scalia goes on to add this regarding additional limitations based on the weapon and type of weapon itself. Note, the Court refers to the "prefatory clause," it references the first portion of the Second Amendment sentence, "A well-regulated Militia, being necessary to the security of a free State...."
We also recognize another important limitation on the right to keep and carry arms. [Previous legal precedent] said that the sorts of weapons protected were those “in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons. 2817.
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. 2817.
The inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family would fail constitutional muster. 2817-2818.
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. 2818.
For more on these cases, I recommend the highly detailed resources at Oyez and Scotusblog (Chicago) and Oyez and Scotusblog (DC).