DC v. Heller Explained

Does the Second Amendment protect an individual's right to keep a gun, or a right tied to an organized militia? For most of American history the courts said the latter. In 2008, the Supreme Court decided otherwise.

In this TalksOnLaw Brief, Joseph Blocher, the Lanty L. Smith '67 Distinguished Professor of Law at Duke Law School and faculty director of the Duke Center for Firearms Law, explains District of Columbia v. Heller. As a junior associate at O'Melveny & Myers, he helped represent the District, co-authoring its merits briefs; his late colleague Walter Dellinger argued the case.

Two Readings of the Second Amendment

Heller presented the Court, for the first time, with the central debate in Second Amendment law: “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.” The militia reading focuses on the first clause. Their view, which prevailed in the courts for some 200 years, is that it protected state militias from disarmament by a new federal government with a standing army, a kind of structural federalism provision. The individual-rights reading focuses on the second clause and extends the right to activities like armed self-defense.

Writing for a 5-4 majority, Justice Scalia adopted the individual-rights view, the first time the Supreme Court, and with one exception any federal court, had done so. Many historians still contest that reading, but as a matter of law, he says, that is the answer now.

An Outlier Law and a Right to Keep

The case began with Dick Heller, a security guard at the Federal Judicial Center, who wanted a handgun at home for self-defense. D.C. law made that impossible and required other guns to be kept locked or disassembled. By 2008, Professor Blocher notes, only Chicago had a comparable handgun ban, which the Court struck down two years later in McDonald v. City of Chicago. Because Heller asked only to keep a handgun at home, the case is, most narrowly, about the right to “keep.”

The Heller Exceptions and the Dissents

A crucial and often overlooked point, he emphasizes, is that Heller recognizes the legitimacy of some gun regulation. Justice Scalia described longstanding measures, including bans on possession by felons and people with mental illness, dangerous and unusual weapons, and guns in sensitive places such as schools, along with restrictions on commercial sale, as presumptively lawful. That passage became the centerpiece of later litigation, and it makes the choice between supporting gun rights and supporting regulation a false one. Justice Stevens's dissent used the same originalist method to reach the militia reading; Justice Breyer's assumed an individual right but would have upheld the law.

What to Know Now

Is Heller still good law? Professor Blocher's answer: short answer yes with an if, long answer no with a but. Every opinion in NYSRPA v. Bruen (2022) claimed to follow Heller; Justice Kavanaugh's concurrence, joined by the Chief Justice, repeated its list of permissible regulations, though Justice Thomas's majority opinion did not. Since then, United States v. Rahimi (2024) upheld the federal ban on gun possession by people under domestic-violence restraining orders and repeated that bans on felons and the mentally ill are presumptively lawful. In 2026 the Court ruled for a marijuana user charged under the federal drug-user ban in United States v. Hemani and struck down a Hawaii carry restriction in Wolford v. Lopez. It has also agreed to decide whether AR-15-style rifles are protected, a question tied to Heller's “dangerous and unusual” language.