District of Columbia v Heller is perhaps the most important United States Supreme Court case relating to gun rights and the Second Amendment. The case established the individual right to possess firearms for self-defense in the home. To get insights on the case, we speak with Prof. Joseph Blocher (Duke Law School) who was one of the lawyers involved with the case (2008).
The case arose when Dick Heller, a security guard, challenged the District of Columbia's handgun ban, which prohibited the registration of handguns and required all firearms in the home to be kept unloaded and disassembled or locked up. In a 5-4 decision, the Court held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as for self-defense within the home. As Prof. Blocher explains, this was highly significant as U.S. courts (up until the 2008 decision) had recognized the Second Amendment as relating to a right of state militias. The opinion of the Court, drafted by Justice Scalia, held that the right to keep a gun is an individual right and further held that the District's ban and storage requirements violated the Second Amendment.
While the Supreme Court in DC v Heller held that the Second Amendment protects an individual's right to possess firearms for self-defense in the home, the Court also noted that this right, like other constitutional rights, is not absolute. The Court identified several presumptively lawful regulatory measures that would not violate the Second Amendment. These include:
Finally, Prof. Blocher points out that while the Supreme Court continues to site DC v. Heller as precedent, the Court's most recent case on the Second Amendment, NYSRPA v. Bruen, raises new questions as to the strength of the exceptions outlined above.
Joseph Blocher is a leading Second Amendment scholar and a professor at Duke Law School. He serves as co-director of the Duke Center for Firearms Law.
This video was created in collaboration with the Duke Center for Firearms Law, dedicated to the development of firearms law as a scholarly field, through the development and support of reliable, original, and insightful scholarship, research, and programming on firearms law.
An Interview with Second Amendment Scholar, Joseph Blocher on D.C. v. Heller
Joel Cohen, host: Today, we'll be discussing perhaps the most important Supreme Court case when it comes to gun laws in the United States: District of Columbia v. Heller. Hello and welcome to Talks on Law, I'm Joel Cohen. Today we're joined remotely by a constitutional scholar and gun rights expert, Professor Joseph Blocher of Duke Law School. Welcome back to Talks on Law.
Professor Joseph Blocher: Thanks so much for having me on, Joel, I appreciate it.
Host: And Professor, I guess we should get on the record, you weren't just a spectator when it comes to District of Columbia v. Heller.
Prof. Blocher: As a very junior associate attorney at the law firm of O'Melveny & Myers in Washington, D.C., I helped represent the district in that case, co-authoring the merits briefs. The oral argument was done by my unfortunately belated, but brilliant and wonderful colleague, Walter Dellinger.
Host: So, what was at stake here in the Heller decision?
Key Issue of D.C. v. Heller
Prof. Blocher: That's a great question. I mean, I think that the critical thing about Heller is that the court was presented, for the first time really, with what had been for decades the central debate in Second Amendment scholarship and law, which was: does the Second Amendment extend beyond what people think of as an organized militia and encompass what people often call the individual right, that is, a private right of individuals disconnected from militia service to have a gun, for example at home, for purposes like self-defense?
Host: When you say militia, maybe we need to go back to the actual wording of the Second Amendment. How is the militia phrase built-in?
Militia v. Individual Right
Prof. Blocher: Yeah, it's built in the first clause of the Second Amendment. The Second Amendment reads, "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." Now, many people, when they read that, see a natural break between the first and the second clauses. So people who think that the Second Amendment is about the organized militia, maybe roughly the equivalent of what we today would think of as the National Guard, tend to focus on that first clause: "A well-regulated militia, being necessary to the security of a free state." And their basic argument is—and this was the argument that prevailed in the courts for 200 years—is that the Second Amendment was ratified to protect the state militias from disarmament.
Now that sounds maybe anachronistic to us today, but we have to remember, back in 1791 when the Second Amendment was ratified, there was a really great fear about this newly constituted federal government which had massive powers compared to what came before. It had a federal standing army; a lot of people thought that was a threat of tyranny, and so preserving the state militias is kind of like a structural federalism provision, if you like. So that's one view, that's the one that focuses on the first part.People who support the private right or individual rights reading tend to focus on the second part of the Second Amendment, which says "the right of the people to keep and bear arms shall not be infringed." And their argument is, well, even if the organized militia were the reason for the amendment being ratified, the right itself extends beyond that, and it covers—there's lots of ways to think about this—but it covers either what you might call the general militia, which is basically everybody who could be called up for militia service, not just those who are actively serving, or it just extends to all of the people referred to in that second clause. And the right itself, again, goes beyond militia-related activities and includes things like armed self-defense.
And their argument is well even if the organized militia were the sort of reason for the amendment being ratified, the right itself extends beyond that and it covers - there's lots of ways to think about this - but it covers either what you might call the general militia, which is basically everybody who could be called up for militia service, not just those who are actively serving or just extends to all of the people referred to in that second clause. And the right itself, again, goes beyond militia-related activities and includes things like armed self-defense. So in a nutshell, there's lots of variations, but in a nutshell, that's kind of the two competing visions of the Second Amendment and how they map onto the text.
Host: So Professor, which one is right?
Prof. Blocher: Well, well, I can answer which one is - which one is right doctrinally. The way that the court decided the case was to adopt the, uh, private purposes individual rights reading of the Second Amendment. And again, that was the central question; the court split five to four on it. Uh, but in his majority opinion, Justice Scalia adopted the individual rights view, and now it's important because it was really the first time that the Supreme Court, and really, with one exception, kind of the first time that any federal court had adopted that reading, despite the fact that the Second Amendment had been on the books for, at that point, almost 220 years. So, if I was putting this on an exam, the right answer would be, an individual private purposes right. Now, many people, including many historians, still contest that; they say the court misread the historical evidence. But at least as a matter of law, that's, uh, that's the answer.
Host: Now, while Heller had this magnified, huge impact, it was actually about a specific law in particular. Maybe we can drill down a bit. What was going on in DC, and was the DC law unique in some ways?
Prof. Blocher: Yeah, it's, it's a great point because a lot of constitutional cases that we think of as foundational today start with laws that are in some respects kind of outliers, and that was true in District of Columbia vs. Heller. So the case started, because a guy named Dick Heller, actually along with some other plaintiffs, most of whom dropped out along the way, wanted to have a handgun at home for self-defense in the District of Columbia. And at the time, the district had a law which, basically, with a few exceptions that didn't cover him, made that impossible. We're not allowed to have a handgun at home; you could have long guns like shotguns and rifles with some restrictions, and guns had to be kept locked or disassembled when not in use, like a safe storage provision. So Dick Heller, argued that that violated his Second Amendment rights. And what Dick Heller said was this violates my right to keep and bear arms because it's not just about militias; it's about self-defense, which is what I care about. Now, you asked, was the district's law an outlier? And the answer to that is yes, at least by the time this case was argued in 2008.
I can only think of one other city that had a handgun prohibition like DC's, and that was Chicago. Actually, the Supreme Court would come back two years later and strike down Chicago's law; that was a case called McDonald's. So yes, we start with these sort of, you know, very close to the ground facts: Dick Heller, who happened to be a security guard at the Federal Judicial Center in Washington, wants to have a handgun at home for self-defense. What we get is this enormous, law-changing decision from the Supreme Court.
Establishing a Right to "Keep"
Host: Professor, am I right in interpreting Heller as granting the right to keep, rather than keep and bear, as it's described in the Second Amendment?
Prof. Blocher: I think that's actually a pretty fair way to put it. I mean, again, what Dick Heller wanted was just a right to have the handgun at home for purposes of self-defense, and because that's what he asked for, that's all the court technically had to rule on. So he won; he got that right. Now, that doesn't mean it's limited just to within the home, but that was all he asked for, and that's all the court had to resolve. Now, a lot of people argued as soon as Heller came down: well, logically, if the right is a right to have a gun on hand for self-defense, then it has to logically extend outside the home because the need to engage in armed self-defense could occur outside the home. But, it's kind of technically, at its most narrow, Heller can be understood, I think, as a case about keeping, that is, the right to keep a handgun in the home for purposes like self-defense.
Second Amendment Exceptions from Heller
Host: Let's talk about some exceptions that came out of the Heller Decision. Scalia's majority opinion listed a number of important exceptions.
Prof. Blocher: This is a crucial point; it's actually one that gets overlooked a lot. And the simple, straightforward answer is: Heller absolutely recognizes the legitimacy of some forms of gun regulation. And again, I just think that's so important to emphasize. People sometimes take people who celebrate the opinion as well as people who criticize it sometimes read it as if it's like a grant of some absolute, unregulable constitutional right. That's not what the majority says. Justice Scalia's majority opinion is really clear on this: that the right to keep and bear arms, like all other constitutional rights, is subject to various forms of regulation. And actually, in a very famous passage, famous for those of us in the field anyway, starting at page 626 of the opinion, he says, "Nothing in our opinion should be taken to cast doubt on such long-standing prohibitions as" – and I could go on, but – laws against possession by people convicted of felonies, people with mental illness, possession of dangerous and unusual weapons, weapons in sensitive places like schools and government buildings, concealed carry restrictions on commercial sale of arms. The court just lists these as, you know, suggests that they are long-standing prohibitions and suggests that they're constitutional.
They're often referred to as the Heller exceptions or the Heller carve-outs, and that passage, that really just one paragraph plus a footnote, really became the centerpiece of post-Heller litigation – what else fits in there? You know, Heller says felons. Well, what about a person who's convicted of a domestic violence misdemeanor? Does that count as a felon, or what about a non-violent felon? Does that fall into this? So that's where a lot of the law went right after Heller, but it was all with the recognition that this right, like all rights, is subject to regulation. And the reason I think that's important is because you'll often hear people say, "I oppose the Second Amendment because I support gun regulation,” or “I support the Second Amendment, therefore I oppose gun regulation,” and that's just a false choice. You can recognize an individual right to bear arms and the legitimacy of gun regulation, and that's what Heller does.
DC v. Heller Dissents
Host: How about the dissent? It was a 5-4 opinion, as you mentioned. What was the main takeaway from the four justices in the dissent or dissents?
Prof. Blocher: That's an interesting question because there are really two dissents, but it's the same four. So the first dissent was authored by Justice Stevens, in which Justice Stevens did something interesting. He basically adopted the same methodology as Justice Scalia: he took the originalist approach of looking to historical materials to understand the meaning of the Second Amendment and came to a different conclusion. Based on some of the same exact sources, he concluded that the Second Amendment was, as the lower courts had held for most of American history, about organized militias, not about a private right to have arms for self-defense. So he took issue with the majority's basic holding about the private purposes right, and again, he was joined by three others.
Justice Breyer also wrote a dissent, which took a different approach. What Justice Breyer did was say, "Okay, I'll assume that there is some kind of individual right to keep and bear arms for private purposes, including self-defense, but it's got to be subject to regulation, as the majority says." Justice Breyer says this law should be constitutional even if there is an individual right to keep and bear arms because the elected officials of D.C. back in the 1970s looked at this; they thought this law was justified as a way to keep down gun homicides and so on, and we, the justices of the Supreme Court, should mostly be deferring to those kinds of policy judgments. So he would have recognized the right but still upheld the law. Justice Stevens would have said no, the right is really just about militias.
Host: I hope you won't mind the simplicity of the question, but is Heller still good law? Well, that's a hard question. To paraphrase from The Simpsons, I would say, short answer: “yes,” with an “if”; long answer: “no” with a “but.” The "yes” with an “if," is in the Court's most recent major
Legacy of DC v Heller
Second Amendment decision, which is Bruen. The majority, dissents, and concurrences all pitch themselves as being compliant with Heller; they all say we are just doing Heller. The majority in Bruen says we're just extending Heller outside the home. That was a case about "keep"; this is a case about "bear." It kind of extends logically. The concurrences, most notably Justice Kavanaugh joined by the Chief Justice, cut and paste that language from Heller about what kinds of regulations are still permissible, so they, again, point back to Heller. But the major reason I say "if" or maybe "no" with a "but" is that the majority, authored by Justice Thomas, notably does not reproduce the "nothing in our opinion should be taken to cast doubt on such long-standing prohibitions" language from Heller. So there's a little bit in the air about just how much of the Heller exceptions survive after Bruen, or if we have to do it in a different way, a different methodology. I mean, if you take Justice Kavanaugh, Chief Justice Roberts, and that concurrence, those two were necessary to make the majority in Bruen, and they say that the Heller exceptions are still good law. So some lower courts, I think, are still reading it that way. But that's exactly where we are right now, and more to come.
Host: Joseph Blocher is a professor of law at Duke Law School and the co-director of the Duke Center for Firearms Law. Joseph it is always a pleasure.
Prof. Blocher: So nice talking to you today. Thanks so much Joel