American Society & Values

Documents & Texts from America.gov

02 July 2008
Highest U.S. Court Examines, Interprets Constitutional Right

By Bridget Hunter
Staff Writer

Washington -- The right of U.S. citizens to keep and bear arms cannot be denied by state or local governments, the Supreme Court of the United States ruled June 26, but it also found the right is not unlimited and can be regulated without violating the Constitution.

The U.S. Constitution, although amended infrequently (only 27 times since its 1789 ratification), remains dynamic and flexible, in part because of nearly continual legal tests in U.S. courts. The ultimate arbiter of whether a state law or local ordinance adheres to the standards established in the Constitution, the supreme law of the land, is the Supreme Court of the United States.

The Supreme Court, in a 5-4 decision, ruled that the Second Amendment, part of the 10-amendment Bill of Rights adopted shortly after the Constitution itself, guarantees the right of individual U.S. citizens to possess and use firearms for traditionally lawful purposes.

"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 amendment states.

"Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem," the court concludes. "That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

The case, District of Columbia v. Heller, involved a special policeman who challenged a District of Columbia (Washington) law that prohibited ownership of handguns, except those specially licensed by the police chief, and mandated that even legally owned firearms must be disassembled or equipped with a trigger lock when stored in a home. The 1976 law, widely acknowledged by both critics and supporters as one of the most restrictive such measures in the United States, was intended to improve public safety in the face of escalating crime -- especially homicide -- that involved use of handguns.

The trial court -- the court that first hears a case -- upheld the law, but an appeals court ruled that the Second Amendment grants an individual right to own firearms. Following the appeals court decision, the Supreme Court agreed to review the case.

Justice Antonin Scalia, writing for the majority, comes down firmly on the need for the government -- even the judiciary, which he calls the "Third Branch" -- to respect and protect rights specifically listed in the Constitution:

"The very enumeration of the right takes out of the hands of government -- even the Third Branch of Government -- the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."

Scalia, who was joined in the decision by justices John Roberts, Anthony Kennedy, Clarence Thomas and Samuel Alito, goes on to say the right is by no means absolute. "We do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose [emphasis in original]."

In support of the decision, he recapped the nation’s history as a land of pioneers and explorers, as well as the deep roots of the U.S. Bill of Rights in English legal traditions.

Stating that "like most rights, the right secured by the Second Amendment is not unlimited," Scalia says the court’s opinion should not be "taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," banning guns from government buildings or schools, or imposing conditions on the commercial sale of firearms.

DISSENT

Disagreement among the justices hinged on the relationship between the first clause of the amendment, which references the need for a well-armed militia, and the statement of the right itself. The majority held the clause announced a purpose for the right, but did not limit the scope of the right.

But Justice John Stevens, penning a dissent in which justices David Souter, Ruth Bader Ginsberg and Stephen Breyer joined, questions whether the Second Amendment protects the right to own and use guns for nonmilitary purposes, and framed the issue as one of federalism.

"The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States," he writes. (See "Introduction to the Bill of Rights.")

The District of Columbia City Council began drafting new legal requirements to meet the court’s standard as soon as the decision was announced.

"I’m disappointed in the court’s ruling and believe introducing more handguns into the District will mean more handgun violence," Mayor Adrian Fenty said June 26, but he added, "I have directed the Metropolitan Police Department to implement an orderly process for allowing qualified citizens to register handguns for lawful possession in their homes."

The full text of the June 26 opinion (157-page PDF) is available on the Supreme Court Web site.

Except in specific situations, usually those involving disputes between states or between the United States and other countries, the Supreme Court does not conduct trials and does not rule on issues of fact. It is the United States’ ultimate arbiter of appropriate legal procedure and questions of constitutionality. (See "U.S. Supreme Court Is a Unique Institution.")

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