In what is sure to become regarded as a landmark case, the U.S. Supreme Court ruled on June 26, in District of Columbia v. Heller, that the Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home."

For most of U.S. history, the majority of our jurisdictions have respected the right to keep and bear arms, as guaranteed by the Second Amendment to our Constitution. However, there have been notable exceptions.

Among these was the District of Columbia's Firearms Control Regulations Act of 1975, which restricts residents from owning handguns — except for those "grandfathered" in by registration prior to 1975 or held by active or retired law enforcement officers. Additionally, the law required that even rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock," a requirement that would seriously delay a citizen's response in the event of a break-in.

In February 2003, six residents of Washington, D.C. (Shelly Parker, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, George Lyon and Dick Heller) filed a lawsuit in the United States District Court for the District of Columbia, challenging the constitutionality of the restrictive law. The case had originally been planned in 2002 by Robert A. Levy, a Senior Fellow at the Cato Institute.

There had been a split on the issue in lower courts. Initially, the suit was dismissed by the District Court, but the plaintiffs appealed and, in a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal, striking down provisions of the Firearms Control Regulations Act as unconstitutional.

In 2007, the District and its mayor, Adrian Fenty, petitioned for rehearing but the United States Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote. Afterwards, both the defendants and the plaintiffs petitioned the United States Supreme Court to hear the case, but the appellate court ruling held that of the original six plaintiffs, only Heller — a 66-year-old a D. C. special police officer authorized to carry a handgun (that he wished to keep at home) while on duty at the Federal Judicial Center — had the necessary standing to challenge the law. Thus the case was designated, District of Columbia, et al. v. Dick Anthony Heller.

Writing for the majority, Justice Antonin Scalia correctly observed that the individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment was adopted. Scalia was joined by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas.

In an almost incredulous dissent that he summarized from the bench, Justice John Paul Stevens wrote that the majority ''would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons." Stevens claimed that such evidence "is nowhere to be found." (Hint: the Second Amendment says, without qualification, "the right of the people to keep and bear arms, shall not be infringed.")

Justice Stephen Breyer wrote a separate dissent that displayed similar disregard for the history (think Lexington and Concord) that impelled the authors of the Constitution to define this right, stating: "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." Also dissenting were Justices Ruth Bader Ginsburg and David Souter.

The Supreme Court's decision marked the first time the court had ever definitively addressed the issue of whether the Second Amendment protects an individual's right to keep and carry a gun, apart from service as a member of a militia. And while it certainly pushed back an assault on our citizens' right to keep and bear arms, there were indications that even the majority members of the Court do not fully appreciate the nature of the Second Amendment.

Justice Scalia, in a concluding paragraph to the 64-page opinion, said the justices in the majority "are aware of the problem of handgun violence in this country" and believe the Constitution "leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns."

Among the "tools" left to the District was the authority to mandate gun registration. Anyone who thinks that being forced to register firearms does not eventually lead to firearms confiscation (certainly an infringement) needs to read the history of Germany's firearms registration during the Weimar Republic, and the subsequent confiscation of firearms by the Hitler regime.

Consider, for a moment, just what the "historical narrative" — particularly before the Second Amendment was adopted — means in understanding the mindset of those who wrote and passed the amendment.

A point that has often been debated is whether or not the use of the term "militia" in the Second Amendment limits the right to keep and bear arms only to those serving in a state militia (some say this applies only to state national guard members). That this claim is both absurd and exactly opposite of the Founders' intent is demonstrated by the words of George Mason, the author of Virginia's Bill of Rights, who explained that the militia consists "of the whole people, except a few public officers." 

In the Heller opinion, the majority stated:

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keepand bear Arms shall not be infringed."

The ruling also correctly observes, concerning the right defined in the Second Amenedment: "Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right."

Other language in the ruling offers a refreshing recognition about the origin of rights, such as:

…we find that [the words of the Second Amendment] guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), "[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed.... (Emphasis in original.)

However, a little while later, the opinion contradicts itself by stating that the amendment conferred a right: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms."

Yet another statement in the opinion offers perhaps the best justification of all as to why the right to keep and bear arms exists: "There are many reasons why the militia was thought to be 'necessary to the security of a free state.' ... when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny."

If only our courts would keep that last point consistently in mind!

Other excellent points made in the opinion include:

During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.

… the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution.

Another encouraging statement in the opinion is: "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."

And, the conclusion, taken at its word, is also cause for optimism: "In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."

In the end, the Court ruled: "We affirm the judgment of the Court of Appeals."

While the ruling in District of Columbia v. Heller, cleared up some common legal misconceptions about the Second Amendment, it misses the mark on other points.

One disturbing statement in the majority opinion is: "We therefore read [United States v.] Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

One would think that, as clearly as the majority appeared to understand the history of the Second Amendment, they would see that the amendment makes no distinction whatsoever regarding types of arms.

The opinion does correctly observe that "For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens." With the federal government's continual application of the Bill of Rights to the States, however, why exclude the Second Amendment?

Strict constitutional constructionists would probably concede the right of the states to regulate arms, if the federal government would only mind its own business in all other matters, but that is a moot point. With state and local government often now reduced to pawns of Washington, the Second Amendment must be maintained at all levels.

Finally, when Justice Scalia said that the Constitution does not permit ''the absolute prohibition of handguns held and used for self-defense in the home," he did not go nearly far enough. Because the Second Amendment was written not so much to protect the home against robbers (though that is certainly a welcome added bonus), but to protect the citizenry against tyrannical governments (such as that headed by George IlI), that would rob them of something even more valuable than their material possessions: their liberty!

The Court's majority opinion alluded to this fact in several places, as when it stated: "...when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny." But by leaving undisturbed laws that continue to regulate when, where, how, what type, and to whom the right to keep and bear arms is applicable, the Court failed to defend in practice what it lauded in principle.

Its decision included much sound, constitutional thinking regarding the Second Amendment that could serve as excellent precedent for future courts. However, it also allowed too many loopholes, such as leaving the authority to require gun registration untouched.

Will the Supreme Court, in striking down this most egregious gun control law, coast on its newly established strict constructionist reputation and allow others almost as bad remain in place?

Only time will tell, but defenders of the right to keep and bear arms must not go to sleep. Those with both the legal expertise and the will to mount further challenges to unconstitutional gun-control laws must not rest.

A good place to start would be for constituents to pressure their congressmen to exercise legislative authority under Article III, Section 2 of the Constitution, and limit the appellate jurisdiction of the federal courts, including the Supreme Court, over any matters related to the right to keep and bear arms.

Only then will an activist judicial system be stopped from legislating from the bench that the God-given right to self defense is not some government-granted privilege that may be revoked whenever the government deems it necessary.

As Thomas Jefferson once wrote, "No free man shall ever be debarred the use of arms."

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