District of Columbia v. Heller
554 U.S. 570 (2008)
[Majority: Scalia, Roberts (C.J.), Kennedy, Thomas, and Alito. Dissenting: Stevens, Breyer, Souter, and Ginsburg.]
Justice Scalia delivered the opinion of the Court.
We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the 2nd Amendment to the Constitution.
- The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Wholly apart from that prohibition, no person may carry a handgun without a license. . . .
Respondent Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on 2nd Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.” . . .
II-A. The 2nd Amendment provides: “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.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague (1931); see also Gibbons v. Ogden (1824). . . .
The 2nd 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. . . . Although this structure of the 2nd Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. . . .
Logic demands that there be a link between the stated purpose and the command. . . .
- Operative Clause.
- “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the 1st Amendment’s Assembly-and-Petition Clause and in the 4th Amendment’s Search-and-Seizure Clause. . . .
Three provisions of the Constitution refer to “the people” in a context other than “rights” — the famous preamble (“We the people”), § 2 of Article I (providing that “the people” will choose members of the House), and the 10th Amendment (providing that those powers not given the Federal Government remain with “the States” or “the -people”). Those provisions arguably refer to “the people” acting collectively — but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. . . .
What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. . . .
As we will describe below, the “militia” in colonial America consisted of a subset of “the people” — those who were male, able bodied, and within a certain age range. Reading the 2nd Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
We start therefore with a strong presumption that the 2nd Amendment right is exercised individually and belongs to all Americans.
- “Keep and bear Arms.” We move now from the holder of the right — “the people” — to the substance of the right: “to keep and bear Arms.” . . .
The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” . . .
In Muscarello v. United States (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s 2nd Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'” . . . Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.
From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. . . . Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” . . .
- Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. . . . We look to this because it has always been widely understood that the 2nd Amendment, like the 1st and 4th Amendments, codified a pre-existing right. . . . As we said in United States v. Cruikshank (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” . . .
By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. . . . It was, he said, “the natural right of resistance and self-preservation,” and “the right of having and using arms for self-preservation and defence[.]” . . .
In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. . . . A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” . . .
There seems to us no doubt, on the basis of both text and history, that the 2nd Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the 1st Amendment’s right of free speech was not. Thus, we do not read the 2nd Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the 1st Amendment to protect the right of citizens to speak for any purpose. . . .
- Prefatory Clause. . . .
- “Well-Regulated Militia.” In United States v. Miller (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. . . .
Unlike armies and navies, which Congress is given the power to create (“to raise . . . Armies”; “to provide . . . a Navy,” Art. I, § 8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the militia,” § 8, cl. 15; and the power not to create, but to “organiz[e]” it[.] . . . This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. . . .
- “Security of a Free State.” . . . There are many reasons why the militia was thought to be “necessary to the security of a free state.” First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary[.] . . . Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.
- Relationship between Prefatory Clause and Operative Clause. . . .
Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew[.] . . . That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms[.] . . .
It is therefore entirely sensible that the 2nd Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. . . . [M]ost [Americans] undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right . . . was codified in a written Constitution. . . .
II-B. Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the 2nd Amendment. Four States adopted analogues to the Federal 2nd Amendment in the period between independence and the ratification of the Bill of Rights. . . . Between 1789 and 1820, nine States adopted 2nd Amendment analogues. Four of them . . . referred to the right of the people to “bear arms in defence of themselves and the State.” . . . That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. . . .
II-D. We now address how the 2nd Amendment was interpreted from immediately after its ratification through the end of the 19th Century. . . . As we will show, virtually all interpreters of the 2nd Amendment in the century after its enactment interpreted the amendment as we do.
- Post-ratification Commentary. . . .
In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the 2nd Amendment as follows:
. . . The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. . . .
Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, . . . wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self defence[.]” . . . A Treatise on the Unconstitutionality of American Slavery (1849). In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed:
. . . Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. . . .
- Pre-Civil War Case Law
The 19th-century cases that interpreted the 2nd Amendment universally support an individual right unconnected to militia service. In Houston v. Moore (1820), this Court held that States have concurrent power over the militia, at least where not preempted by Congress. [Both] the Court and [Justice] Story [dissenting] derived the States’ power over the militia from the nonexclusive nature of federal power, not from the 2nd Amendment, whose preamble merely “confirms and illustrates” the importance of the militia. . . . In the famous fugitive-slave case of Johnson v. Tompkins (CC Pa. 1833), [Justice] Baldwin, sitting as a circuit judge, cited both the 2nd Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them, if either were assailed[.] . . .”
In Nunn v. State (Ga. 1846), the Georgia Supreme Court construed the 2nd Amendment as protecting the “natural right of self-defence” . . . :
The right of the whole people, . . . and not militia only, to keep and bear arms . . . shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. . . .
- Post-Civil War Legislation. . . .
Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. . . . A joint congressional Report decried:
[I]n some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all firearms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution. . . .
- Post-Civil War Commentators.
Every late-19th-century legal scholar that we have read interpreted the 2nd Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley . . . :
The alternative to a standing army is “a well-regulated militia,” but this cannot exist unless the people are trained to bearing arms. . . .
III. Like most rights, the right secured by the 2nd Amendment is not unlimited. . . . [N]othing 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. . . .
- . . . As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock, at all times, rendering it inoperable.
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the 2nd Amendment right. . . . 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. . . .
We are aware of the problem of handgun violence in this country. . . . The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly, some think that the 2nd 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. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the 2nd Amendment extinct.
We affirm the judgment of the Court of Appeals. It is so ordered.
Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.
The question presented by this case is not whether the 2nd Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the 2nd Amendment protects an individual right does not tell us anything about the scope of that right. . . .
Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller (1939), provide a clear answer to that question.
The 2nd 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. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. . . .
The view of the Amendment we took in Miller — that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons — is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.
Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there; we ourselves affirmed it in 1980. See Lewis v. United States (1980).
- I. . . . “A well regulated Militia, being necessary to the security of a free State”
The preamble to the 2nd Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.” In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence. Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias; they also underscore the profound fear shared by many in that era of the dangers posed by standing armies. . . .
The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison (1803). . . .
“The right of the people”
The centerpiece of the Court’s textual argument is its insistence that the words “the people” as used in the 2nd Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the 1st and 4th Amendments. . . . But the Court itself reads the 2nd Amendment to protect a “subset” significantly narrower than the class of persons protected by the 1st and 4th Amendments; when it finally drills down on the substantive meaning of the 2nd Amendment, the Court limits the protected class to “law-abiding, responsible citizens.” . . . The Court offers no way to harmonize its conflicting pronouncements.
The Court . . . overlooks the significance of the way the Framers used the phrase “the people” in these constitutional provisions. In the 1st Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. . . .
Similarly, the words “the people” in the 2nd Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects. . . .
“To keep and bear Arms”
. . . The Amendment’s use of the term “keep” in no way contradicts the military meaning conveyed by the phrase “bear arms” and the Amendment’s preamble. To the contrary, a number of state militia laws in effect at the time of the 2nd Amendment’s drafting used the term “keep” to describe the requirement that militia members store their arms at their homes, ready to be used for service when necessary. . . .
This reading is confirmed by the fact that the clause protects only one right, rather than two. It does not describe a right “to keep arms” and a separate right “to bear arms.” Rather, the single right that it does describe is both a duty and a right to have arms available and ready for military service, and to use them for military purposes when necessary. . . .
- . . . Two themes relevant to our current interpretive task ran through the debates on the original Constitution. “On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Perpich v. Department of Defense (1990). . . . On the other hand, the Framers recognized the dangers inherent in relying on inadequately trained militia members “as the primary means of providing for the common defense[.]” . . . In order to respond to those twin concerns, a compromise was reached: Congress would be authorized to raise and support a national Army, and Navy, and also to organize, arm, discipline, and provide for the calling forth of “the Militia.” . . . [T]he States respectively would retain the right to appoint the officers and to train the militia in accordance with the discipline prescribed by Congress.
But the original Constitution’s retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a standing army. . . . As George Mason argued during the debates in Virginia on the ratification of the original Constitution:
The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless — by disarming them. . . .
This sentiment was echoed at a number of state ratification conventions . . . ; The proposed amendments sent by the States of Virginia, North Carolina, and New York focused on the importance of preserving the state militias and reiterated the dangers posed by standing armies. New Hampshire sent a proposal that differed significantly from the others; while also invoking the dangers of a standing army, it suggested that the Constitution should more broadly protect the use and possession of weapons, without tying such a guarantee expressly to the maintenance of the militia. The States of Maryland, Pennsylvania, and Massachusetts sent no relevant proposed amendments to Congress, but in each of those States a minority of the delegates advocated related amendments. While the Maryland minority proposals were exclusively concerned with standing armies and conscientious objectors, the unsuccessful proposals in both Massachusetts and Pennsylvania would have protected a more broadly worded right, less clearly tied to service in a state militia. Faced with all of these options, it is telling that James Madison chose to craft the 2nd Amendment as he did.
Madison, charged with the task of assembling the proposals for amendments sent by the ratifying States, was the principal draftsman of the 2nd Amendment. He had before him, or at the very least would have been aware of, all of these proposed formulations. . . .
With all of these sources upon which to draw, it is strikingly significant that Madison’s first draft omitted any mention of nonmilitary use or possession of weapons. Rather, his original draft repeated the essence of the two proposed amendments sent by Virginia . . . “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country. . . .
[I]t is reasonable to assume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to craft the Amendment as they did represented a rejection of those alternative formulations. . . .
III. Although it gives short shrift to the drafting history of the 2nd Amendment, the Court dwells at length on four other sources. . . .
The Court’s reliance on Article VII of the 1689 English Bill of Rights — which, like most of the evidence offered by the Court today, was considered in Miller — is misguided both because Article VII was enacted in response to different concerns from those that motivated the Framers of the 2nd Amendment, and because the guarantees of the two provisions were by no means coextensive. . . .
The Court’s reliance on Blackstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English Bill of Rights. Blackstone’s invocation of “‘the natural right of resistance and self-preservation,'” and “‘the right of having and using arms for self-preservation and defence'” referred specifically to Article VII in the English Bill of Rights. . . .
The Court also excerpts . . . commentary by a number of additional scholars, some near in time to the framing and others post-dating it by close to a century. . . . Their views are not altogether clear, they tended to collapse the 2nd Amendment with Article VII of the English Bill of Rights, and they appear to have been unfamiliar with the drafting history of the 2nd Amendment. . . .
The Court suggests that by the post-Civil War period, the 2nd Amendment was understood to secure a right to firearm use and ownership for purely private purposes like personal self-defense. . . . All of the statements the Court cites were made long after the framing of the Amendment and cannot possibly supply any insight into the intent of the Framers; and all were made during pitched political debates, so that they are better characterized as advocacy than good-faith attempts at constitutional interpretation. . . .
- . . . In 1792, the year after the Amendment was ratified, Congress passed a statute that purported to establish “an Uniform Militia throughout the United States.” The statute commanded every able-bodied white male citizen between the ages of 18 and 45 to be enrolled therein and to “provide himself with a good musket or firelock[.]” . . . The statute . . . confirmed the way those in the founding generation viewed firearm ownership: as a duty linked to military service. . . .
[T]he dominant understanding of the 2nd Amendment’s inapplicability to private gun ownership continued well into the 20th century. The first two federal laws directly restricting civilian use and possession of firearms — the 1927 Act prohibiting mail delivery of . . . firearms capable of being concealed on the person,” and the 1934 Act prohibiting the possession of sawed-off [firearms] and machine guns — were enacted over minor 2nd Amendment objections dismissed by the vast majority of the legislators who participated in the debates. . . .
Indeed, the 2nd Amendment was not even mentioned . . . during the legislative proceedings that led to the passage of the 1934 Act. . . . [T]he Miller Court unanimously concluded that the 2nd Amendment did not apply to the possession of a firearm that did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” . . .
- V. The Court concludes its opinion by declaring that it is not the proper role of this Court to change the meaning of rights “enshrine[d]” in the Constitution. But the right the Court announces was not “enshrined” in the 2nd Amendment by the Framers; it is the product of today’s law-changing decision. . . .
Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. . . . For these reasons, I respectfully dissent.
Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
- . . . The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens — namely, that the 2nd Amendment protects militia-related, not self-defense-related, interests. . . .
The second independent reason is that the protection the Amendment provides is not absolute. . . . I shall show that the District’s law is consistent with the 2nd Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. . . .
The law is tailored to the urban crime problem in that it is local in scope . . . ; the law concerns handguns, which are specially linked to urban gun deaths and injuries . . . ; and at the same time, the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the 2nd Amendment was adopted. In these circumstances, the District’s law falls within the zone that the 2nd Amendment leaves open to regulation by legislatures. . . .
III. . . . The majority is wrong when it says that the District’s law is unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” . . . It certainly would not be unconstitutional under, for example, a “rational basis” standard, . . . Heller v. Doe (1993). The law at issue here, which in part seeks to prevent gun-related accidents, at least bears a “rational relationship” to that “legitimate” life-saving objective. . . .
[Heller] proposes that the Court adopt a “strict scrutiny” test. . . . But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons, forfeiture by criminals of the 2nd Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales. . . .
[A]lmost every gun-control regulation will seek to advance . . . a “primary concern of every government — a concern for the safety and indeed the lives of its citizens.” United States v. Salerno (1987). The Court has deemed that interest, as well as “the Government’s general interest in preventing crime,” to be “compelling,”. . . . Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the 2nd Amendment on one side and the governmental public-safety concerns on the other. . . .
I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather . . . the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests. . . .
In applying this kind of standard the Court normally defers to a legislature’s empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional fact-finding capacity. . . .
- . . . In determining whether this regulation violates the 2nd Amendment, I shall ask how the statute seeks to further the governmental interests that it serves, how the statute burdens the interests that the 2nd Amendment seeks to protect, and whether there are practical less burdensome ways of furthering those interests. . . .
IV-A-1. First, consider the facts as the legislature saw them when it adopted the District statute. [T]he major substantive goal of the District’s handgun restriction is “to reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia.” The committee concluded, . . . that “[t]he easy availability of firearms in the United States has been a major factor contributing to the drastic increase in gun-related violence and crime over the past 40 years.” It reported to the Council “startling statistics,” regarding gun-related crime, accidents, and deaths. . . .
The committee informed the Council that guns were “responsible for 69 deaths in this country each day,” for a total of “[a]pproximately 25,000 gun-deaths . . . each year,” along with an additional 200,000 gun-related injuries. . . . And according to the committee, “[f]or every intruder stopped by a homeowner with a firearm, there are 4 gun-related accidents within the home.”
In respect to local crime, the committee observed that there were 285 murders in the District during 1974 — a record number. . . . Citing an article from the American Journal of Psychiatry, the committee reported that “[m]ost murders are committed by previously law-abiding citizens, in situations where spontaneous violence is generated by anger, passion or intoxication, and where the killer and victim are acquainted.” . . .
The committee report furthermore presented statistics strongly correlating handguns with crime. Of the 285 murders in the District in 1974, 155 were committed with handguns. . . . Nor were handguns only linked to murders, as statistics showed that they were used in roughly 60% of robberies and 26% of assaults. . . .
IV-A-2. [The District of Columbia], and their amici, have presented us with more recent statistics that tell much the same story that the committee report told 30 years ago. . . .
From 1993 to 1997, there were 180,533 firearm-related deaths in the United States, an average of over 36,000 per year. . . . More male teenagers die from firearms than from all natural causes combined. . . .
Statistics further suggest that urban areas, such as the District, have different experiences with gun-related death, injury, and crime, than do less densely populated rural areas. A disproportionate amount of violent and property crimes occur in urban areas, and urban criminals are more likely than other offenders to use a firearm during the commission of a violent crime. . . .
IV-A-3. [Heller] and his many amici for the most part do not disagree about the figures set forth in the preceding subsection, but they do disagree strongly with the District’s predictive judgment that a ban on handguns will help solve the crime and accident problems that those figures disclose. . . .
[T]his Court, in 1st Amendment cases applying intermediate scrutiny, has said that our “sole obligation” in reviewing a legislature’s “predictive judgments” is “to assure that . . .” the legislature “has drawn reasonable inferences based on substantial evidence.” Turner Broadcasting System, Inc. v. FCC (1997). [T]he District’s judgment, while open to question, is nevertheless supported by “substantial evidence.”
There is no cause here to depart from the standard set forth in Turner, for the District’s decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make. See Nixon v. Shrink Missouri Government PAC (2000) (Breyer, J., concurring). . . .
IV-B. I next assess the extent to which the District’s law burdens the interests that the 2nd Amendment seeks to protect. . . .
IV-B-3. The District’s law does prevent a resident from keeping a loaded handgun in his home. And it consequently makes it more difficult for the householder to use the handgun for self-defense in the home against intruders, such as burglars. As the Court of Appeals noted, statistics suggest that handguns are the most popular weapon for self defense. . . . To that extent the law burdens to some degree an interest in self-defense that for present purposes I have assumed the Amendment seeks to further.
IV-C. In weighing needs and burdens, we must take account of the possibility that there are reasonable, but less restrictive alternatives. . . . See Nixon (Breyer, J., concurring). . . . Here I see none. . . .
[T]he ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns. . . .
[T]he very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous. That they are easy to hold and control means that they are easier for children to use. That they are maneuverable and permit a free hand likely contributes to the fact that they are by far the firearm of choice for crimes such as rape and robbery. That they are small and light makes them easy to steal, and concealable. . . .
If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive, less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban.
Licensing restrictions would not similarly reduce the handgun population, and the District may reasonably fear that even if guns are initially restricted to law-abiding citizens, they might be stolen and thereby placed in the hands of criminals. . . .
IV-D. The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative. . . . Does the District’s law disproportionately burden Amendment-protected interests? Several considerations, taken together, convince me that it does not.
First, the District law is tailored to the life-threatening problems it attempts to address. . . .
Second, the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that the 2nd Amendment seeks to serve. . . .
Further, any self-defense interest at the time of the Framing could not have focused exclusively upon urban-crime related dangers. . . .
Third, irrespective of what the Framers could have thought, we know what they did think. Samuel Adams, who lived in Boston, advocated a constitutional amendment that would have precluded the Constitution from ever being “construed” to “prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” Samuel Adams doubtless knew that the Massachusetts Constitution contained somewhat similar protection. And he doubtless knew that Massachusetts law prohibited Bostonians from keeping loaded guns in the house. So how could Samuel Adams have advocated such protection unless he thought that the protection was consistent with local regulation that seriously impeded urban residents from using their arms against intruders? . . .
Of course the District’s law and the colonial Boston law are not identical. But the Boston law disabled an even wider class of weapons (indeed, all firearms). And its existence shows at the least that local legislatures could impose (as here) serious restrictions on the right to use firearms. . . .
Fourth, a contrary view, as embodied in today’s decision, will have unfortunate consequences. . . .
[T]he majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. . . . I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem. . . .
- For these reasons, I conclude that the District’s measure is a proportionate, not a disproportionate, response to the compelling concerns that led the District to adopt it. . . .