A Hollow Victory?

Assessing the real world impact of D.C. v. Heller


For all of the hype, last week's Second Amendment ruling by the Supreme Court won't have much practical effect, at least in the short term. And we likely won't know it's long-term implications for years.

D.C. v. Heller wasn't so much a victory for gun rights as it was a deft aversion of defeat. The Supreme Court addressed its first broad gun rights case in decades and came away finding that the Constitution confers an individual right to bear arms, not a collective right. A 5-4 decision the other way would have been devastating.

Still, this victory seems hollow. Perhaps that's in part because of the narrow way the case was argued by the plaintiff, D.C. security guard Dick Anthony Heller (disclosure: I have several friends and former colleagues who worked on Mr. Heller's case).

Heller's lawyers' strategy (a wise one, in my opinion) was to argue the case narrowly enough that courts couldn't throw it out, forcing the federal court system once and for all to determine whether the Second Amendment's right to keep and bear arms applies strictly to militias or to each of us as individuals.

Writing for the majority, Justice Antonin Scalia ruled for the latter, but with some broad exceptions.

And there's the rub. Scalia's opinion says the Second Amendment's "individual right" to bear arms extends only to self defense and, even then, only in one's home. Perhaps in part to help secure a five-vote majority, Scalia seems to have gone out of his way to explain that the Court wasn't invalidating laws against concealed carry, laws against "unusual or dangerous" weapons, licensure and permit laws, or laws against possessing weapons in "sensitive areas."

Second Amendment scholar Nelson Lund writes that Scalia's exceptions could be significant: Should white-collar felons guilty of nonviolent crimes such as tax evasion or insider trading be barred forever from possessing a gun for self-defense?

Scalia's "sensitive areas" might well include the likes of post-Katrina New Orleans—places where the government is striving to preserve order but where the citizens are in most need of arms for self-defense.

Scalia's opinion also neglected to embrace the Second Amendment as a bulwark against government tyranny, an argument that may at first blush seem anachronistic and impractical but that history shows ought not be taken lightly.

One needn't be a modern-day mountain militiaman to observe that authoritarian regimes often become tyrannical after first disarming the citizenry. As Thomas Jefferson put it, "When the people fear their government, there is tyranny; when the government fears the people, there is liberty."

Most significantly, Scalia's decision neglected to incorporate the individual right to gun ownership to the states through the Fourteenth Amendment. That means that for practical purposes, the only people directly affected by the ruling are the 600,000 residents of Washington, D.C., and the handful of others living in protectorates of the federal government.

To be fair, the plaintiff in the case was a resident of Washington, D.C., and didn't ask the Court to address incorporation. Still, Scalia broached the matter in a footnote but was vague and ambivalent about his intentions, leading to competing interpretations over whether he would or wouldn't be amenable to incorporation.

Scalia has tended to be skeptical of the idea of broadly applying the Bill of Rights to the states. He also has a history of prioritizing his law-and-order instincts over his allegiance to limited government principals and originalism, as he did when he sided with the Court's liberal justices in the medical marijuana case Gonzalez v. Raich.

There, Scalia's fondness for the drug war trumped his alleged federalist principles. His and Justice Anthony Kennedy's vote to validate the federal government's efforts to subvert state laws allowing for the use of medical marijuana essentially halted the Court's incremental, 10-year "federalism revolution," which some speculate may have resulted in overturning Wickard v. Filburn, the 60-year-old Commerce Clause case that broadly expanded the power of Congress to intervene in the most minute of personal affairs.

Until the incorporation issue is resolved—which likely will take years—last week's decision, while symbolically significant, has limited practical effect. It means only that the citizens of Washington, D.C., and other federal protectorates have the right to own a handgun for the purpose of self-protection.

But that right only extends to gun ownership in the home, and even then, it's subject to all sorts of restrictions and licensure requirements. Just how strict those requirements can be (could D.C. pass a six-month waiting period for handgun purchases?) will need to be resolved by litigation.

Outside of D.C., nothing has changed. The Heller decision won't affect other cities with gun restrictions as severe as those in D.C. So-called "assault weapon bans" still are valid. All Heller did outside the nation's capital was remove the possibility that Congress might one day pass a blanket federal ban on all firearm ownership, which seemed like a remote possibility, anyway.

Pan back a bit and the cause for skepticism grows. The Bill of Rights never was intended to be a list of the only rights we have; in fact, the founders worried that future generations might interpret it that way, which is why they included the Ninth and Tenth amendments.

Rather, the Bill of Rights includes the rights the founders considered most important, those necessary to secure and preserve all of the others.

The right to bear arms appears second on the list. And yet even here, on an issue that's become a central tenet of conservative philosophy, we have a decision written by the Court's most conservative justice that can't even uphold the second addition to the Bill of Rights without a series of caveats, exceptions, and asides. And it's a ruling that, practically speaking, applies that right to only a sliver of the country's 300 million residents.

As the short-lived "federalism revolution" demonstrates, an incrementalist approach to winning back the liberties we've lost over the years isn't likely to be successful. Indeed, the general trajectory of the Court over American history has—with some exceptions—been toward more power for the government at the expense of individual liberty, not the other way around.

Heller was a symbolic victory, and the lawyers who brought the longshot case should be commended. But time will tell if this symbolic victory evolves into a practical one.

For now, we're still a long way from a blanket, real-world right to keep and bear arms.

Radley Balko is a senior editor of reason. A version of this article originally appeared on FoxNews.com.

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  1. ...because while Scalia loves *his* guns, he is also a Law & Order whore. I'm surprised he didn't just up and spit into two distinct people (like some TOS Star Trek episode) because of this case.

  2. It is certainly a victory for media types of all stripes 🙂

  3. Good article. That pretty much sums up how I felt about the decision when it came out. The fact that this group is supposed to be composed of legal scholars, when, in reality, it's just a a bunch of individuals that project their personal beliefs about how society should work and then couch it in legal language.

    That anyone could look at the Commerce Clause and think that it was meant to allow the federal gov't to pass any law that it wants to is offensive to anyone with a modicum of intelligence.

  4. In short, despite the fact that many liberals wet their pants over Scalia, he is really a big government justice.

  5. In short, despite the fact that many liberals wet their pants over Scalia, he is really a big government justice.

    So long as that government is also really, really mean. otherwise, he's against it.

  6. plus, scalia's opinions are notoriously sloppy even when "correct." for someone who is supposed to be such an intellectual and strict constructionist, many of his opinions have huge holes and rely too much on emotional and ad hominem arguments. i would have much rather had thomas or alito or roberts write this one.

  7. ...because while Scalia loves *his* guns, he is also a Law & Order whore. I'm surprised he didn't just up and spit into two distinct people (like some TOS Star Trek episode) because of this case.

    Isn't that the episode where he sports that cool "Evil Scalia" goatee?

  8. Isn't that the episode where he sports that cool "Evil Scalia" goatee?

    Either that one or the episode in which an unfortunate transporter accident divides Scalia into an aggressive pro-freedom warrior and a simpering presidential lackey.

  9. Emotional arguments? Scalia????

    No! I don't believe it!

    "Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives," Judge Scalia reportedly said. "Are you going to convict Jack Bauer?" He then posed a series of questions to his fellow judges: "Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer?"

    "I don't think so," Scalia reportedly answered himself. "So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.

  10. So long as that government is also really, really mean. otherwise, he's against it.

    This made me laugh at work! Laughter at work is dangerous and will "almost surely cause more Americans to be killed."

  11. After all teh other folks made a effort, Balko wrote the most libertarian article on gun control from Reason in the last week. What is it about Balko's peers that make them hopelessly uncritical and optimistic about the government...it is as if they are hoping to soothe libertarians into forgetting that there is a insane leviathan attacking individual freedoms at every turn.

    Mungu Ward thinks that government cameras will be used to protect our rights!!, NSA and endless wiretapping is great. Chapman loves forcing us all to buy ignition lock breathylyzers...both think we have won huge victories for gun rights. Nobody cares if we have to get permits and licenses to talk to people on public property or keep a gun in our house.

    Balko do your peers at Reason call you a closet Paleo? a redneck? do they think you are paranoid for not liking tasers?

  12. So long as that government is also really, really mean. otherwise, he's against it.

    Point taken.

  13. Isn't that the episode where he sports that cool "Evil Scalia" goatee?

    Since i currently wear a goatee, does that mean in some alternate universe there is a "good" Steve running around helping *gags, sputters* people? I shudder to think so.

  14. You guys are hella stupid.

  15. Scalia did not squarely address the incorporation question because it was not relevant to the holding of the case (since D.C. is not a state). If he had, it would have been dicta and, therefore, any lower court could simply ignore it at its will. That is way the precedential heirarchy of case law works, for better or worse.

  16. Radley makes several good points in his article, and there have been any number of valid criticisms written of the Heller decision.


    Imperfect as it may be, Heller is the camel's nose under the tent. The NRA has already filed almost a half-dozen lawsuits to strike down similar bans in other cities.

  17. I'm not sure I completely agree with Radley that each passing year of court decisions delivers us more big government. In certain areas, I'm thinking first amendment cases among others, the power of government has been dramatically reduced by the Supreme Court over the years.

  18. I wonder if you protest too much. Yes, it is correct to say that in the Heller ruling the Supreme Court was silent on the incorporation issue, but that doesn't mean it will always be. It confined itself to the fact situation at hand. Will the ban on handguns in Chicago, which unlike the District of Columbia is actually located in a state, fall on the basis of the Heller ruling? It just might because Heller validated the 'individual rights' interpretation of the Second Amendment and held that a total ban on handguns was unconstitutional. Yes, it is disappointing that Justice Scalia didn't go as far in the ruling as he could have, but we should never forget that on June 25 it wasn't at all clear that the court was going to recognize the individual right to bear arms, but thanks to Scalia and four justices on June 26 we could at long last rest secure in the knowledge that the right enjoyed the protection of the courts.

  19. In certain areas, I'm thinking first amendment cases among others, the power of government has been dramatically reduced by the Supreme Court over the years.

    I would say that the failure to strike McCain-Feingold from the books means that, even in the 1A arena, SCOTUS has signed off on a dramatic increase in government power.

  20. Did you catch footnote #27 which sets the 2nd as a "specific enumerated right" and thus subjects restrictions to "strict scrutiny"?

    That right there sounds like a big win in and of itself.

  21. The "sensitive areas" thing is pretty obvious: He wants to find an individual right to own a handgun, but he doesn't want to get shot. That means he better not find that the individual right to a handgun extends to spectators in the Supreme Court. He also wants to keep criminals in prison, so your right to carry a gun does not apply when visiting your friend in prison. He wants to protect the President, so your right to a gun does not apply in the White House.

    Is there anything surprising about that?

  22. Right now, there are lawsuits contesting handgun bans in Chicago and San Francisco. These can potentially resovle the incorportion issue at the appeals level.

    The important part of Heller was to confirm it is an individual right. We have to take our rights back one step at a time, in the same manner they were taken . . .

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