The Right to Keep and Bear Arms
November 3, 2024- Posted by Larry E. Holtz, Esq.
The right to keep and bear arms is among the “fundamental rights necessary to our system of ordered liberty.”[1] This right secures for Americans a means of self-defense.[2]
“Like most rights,” though, “the right secured by the Second Amendment is not unlimited.”[3] In District of Columbia v. Heller,[4] the Court held that the right applied to ordinary citizens within the home. However, this right is not one “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”[5]
In the Heller case, Special Officer Dick Heller was authorized to carry a handgun while on duty at the District of Columbia Judiciary Building. 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 seeking, on Second Amendment grounds, to stop 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.” At the US Supreme Court, he was successful.
Writing for the majority, Justice Scalia observed:
"[The District of Columbia] 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.
[T]he inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. 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.[6]
Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. … It is enough to note … that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
[T]he District [requires] that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.[7]"
Accordingly, the Court held that the District of Columbia’s “ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”[8]
The United States Supreme Court has yet to squarely address what types of weapons are “Arms” protected by the Second Amendment. As explained in District of Columbia v. Heller, the Second Amendment’s protection “extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”[9] The Court also noted that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes,”[10] recognizing “the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”[11] But this minimal guidance “leaves open essential questions such as what makes a weapon ‘bearable,’ ‘dangerous,’ or ‘unusual.’”[12]
In United States v. Rahimi,[13] the United States Supreme Court addressed a federal statute that prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that the person “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual.[14] Defendant Rahimi was subject to such an order. The question was whether this provision may be enforced against him consistent with the Second Amendment.[15]
The Court held that “[w]hen a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.[16] As applied to the facts of this case, wherein a court found that the defendant posed a credible threat to the physical safety of the victim or her family, 18 U.S.C. § 922(g)(8) fits comfortably within the Nation’s tradition of “preventing individuals who threatened physical harm to others from misusing firearms.”[17]
Footnotes
[1] McDonald v. Chicago, 561 U. S. 742, 778, 130 S. Ct. 3020 (2010).
[2] New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 17, 142 S. Ct. 2111 (2022).
[3] District of Columbia v. Heller, 554 U. S. 570, 626, 128 S. Ct. 2783, 2816 (2008).
[4] District of Columbia v. Heller, 554 U. S. 570, 128 S. Ct. 2783 (2008).
[5] United States v. Rahimi, 602 U.S. ___, 144 S. Ct. 1889, 1897 (2024) (Act of Mar. 1, 1783, 1783 Mass. Acts and Laws ch.13, pp. 218-219; 5 Colonial Laws of New York ch. 1501, pp. 244-246 (1894)).
[6] District of Columbia v. Heller, 554 U. S. 570, 628, 128 S. Ct. 2783, 2817-18 (2008).
[7] District of Columbia v. Heller, 554 U. S. 570, 629-30, 128 S. Ct. 2783, 2818 (2008).
[8] District of Columbia v. Heller, 554 U. S. 570, 636, 128 S. Ct. 2783, 2821-22 (2008) (emphasis added). In brief, the Court in Heller recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In Buren, the court further held that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. Thus, the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense inside and outside the home. New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 8-10, 142 S. Ct. 2122 (2022).
[9] District of Columbia v. Heller, 554 U.S. 570, 582, 128 S. Ct. 2783, 2792 (2008).
[10] District of Columbia v. Heller, 554 U.S. 570, 625, 128 S. Ct. 2783, 2816 (2008).
[11] District of Columbia v. Heller, 554 U.S. 570, 627, 128 S. Ct. 2783, 2817 (2008); Caetano v. Massachusetts, 577 U. S. 411, 417-419, 136 S. Ct. 1027, 194 L. Ed. 2d 99 (2016) (Alito, J., concurring in judgment)
[12] Harrel v. Raoul, 144 S.Ct. 2491, 2492 (2024) (Thomas, J., concurring).
[13] United States v. Rahimi, 602 U.S. ___, 144 S. Ct. 1889 (2024).
[14] 18 U. S.C. §922(g)(8).
[15] United States v. Rahimi, 602 U.S. ___, 144 S. Ct. 1889, 1894 (2024).
[16] United States v. Rahimi, 602 U.S. ___, 144 S. Ct. 1889, 1896 (2024).
[17] United States v. Rahimi, 602 U.S. ___, 144 S. Ct. 1889, 1896-97 (2024). Note also that in holding that Section 922(g)(8) is constitutional as applied to Rahimi, the Court rejected the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.” Said the Court: “‘Responsible’ is a vague term. It is unclear what such a rule would entail.” Id. at 1903.