The Supreme Count in its landmark case District of Columbia, et al. v. Dick Anthony Heller is a limited victory for opponents of gun control laws, affirming a right to keep a handgun in the home for defensive purposes.
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. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, 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.
Like most rights, the right secured by the Second Amendment . . . was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts . . . held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.
It is therefore probable that state “shall issue” laws and other concealed weapon “carry” laws are discretionary, and not supported by the Second Amendment.
Next, “assault weapon” laws which ban ownership of semi-automatic rifles because they are ugly or scary-looking are clearly supported by Heller.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, 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.”
. . . weapons that are most useful in military service—M-16 rifles and the like—may be banned . . ..
Looking at Part III of the Heller decision, we can see the future of gun control efforts: The clause allowing “laws imposing conditions and qualifications on the commercial sale of arms” could well be taken as permitting registration of purchased firearms, limitations on quantities owned and possibly buyer qualification (such as requiring drivers licenses for cars). Of course, gun advocates have long feared registration as a pre-cursor to confiscation (as happened in Australia), but that fear is substantially reduced by Heller. We have registered our SUV, but do not fear the state confiscating it. Furthermore, in view of the individual right to bear arms affirmed by Heller, an argument may be made that having an inventory of individually-owned firearms in the hands of the State may inhibit the right of possession, much as requiring publications critical of whatever administration is currently in power to be sent to and registered with a central bureau.
Heller therefore is a narrow decision permitting handguns to be kept at home for defensive purposes, and should not be read as securing a broad right to hunt or even to carry arms for any non-defensive purpose.
Photo: A Browning M2 machine gun, still not available for home defense.
