The U.S. Supreme Court’s 2008 District of Columbia v. Heller case considered whether the Second Amendment to the U.S. Constitution protects an individual right to possess and use privately-owned firearms.

Historical Background

The Second Amendment to the United States Constitution states: “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 Founding Fathers drafted and ratified the Second Amendment in order to protect the individual right of citizens to possess and carry their personal arms—most notably but not exclusively firearms.  The Founders did not believe that they were creating a new right in the Second Amendment; rather, they insisted that they were simply preserving a right that predated the birth of the American Republic.  The Revolutionary generation considered the right to keep and bear private arms to be a traditional right of Englishmen that they had inherited, but more importantly they recognized that this right was an extension of the natural rights enshrined in the Declaration of Independence (the rights to life, liberty, and the pursuit of happiness).  Despite changes in technology and relatively recent arguments advanced by “progressives” of various types, the words of the Second Amendment have the same meaning today as they had during our nation’s founding period.

Background of the Case

As of 2003, when plaintiff Dick Heller initially filed his lawsuit against the District of Columbia, D.C. law disallowed the possession of unregistered handguns and, since 1975, had prohibited the registration of most new handguns.  In addition, D.C. law required that any firearms kept in one’s home be unloaded and inoperable.  These draconian laws virtually banned handgun possession by private citizens.  Heller, a special policeman who worked in the District, was permitted to possess a handgun in the performance of his duties, but he was prohibited from keeping the firearm in his home, which was in a crime-ridden area.  Heller then brought suit against the D.C. government, claiming that the District’s virtual prohibition on private handgun possession violated his rights under the Second Amendment.  A federal district court judge dismissed Heller’s lawsuit, but the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal.  District of Columbia officials then appealed the case to the U.S. Supreme Court.

The Supreme Court’s Decision

In a 5-4 ruling (with Justice Antonin Scalia writing for the majority), the Court decisively sided with Heller.  It held that, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”  The Court observed that the first portion of the amendment (its prefatory clause) explains the purpose of the remainder of the amendment (the operative clause) but does not restrict it in any way.  Language referring to “a well regulated Militia,” the Court explained, reflected the Founders’ belief that “all males physically capable of acting in concert for the common defense” should possess privately-owned firearms and the requisite skill to use them proficiently.  This “general militia” would act as a safeguard against the tyrannical rule of a standing army or select group.  The Court noted further that its interpretation is supported by the amendment’s drafting history, contemporary state amendments protecting the right of individuals to keep and bear their private arms, and “interpretation of the Second Amendment by scholars, courts, and legislators, from immediately after its ratification through the late 19th century.”

The Court swept aside the ahistorical “collective right” arguments of Justice John Paul Stevens and the other dissenters who claimed, “it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.”  The Court’s majority responded that the rights of “the people” protected by the Bill of Rights (such as those covered by the First, Fourth, and Ninth Amendments) are clearly individual rights, not “rights” of states (states have powers, not rights) or “collective” rights of some kind.  Thus, logic dictates that the right of “the people” stated in the Second Amendment is an individual right as well.


The Court’s holdings in the Heller case applied only to the federal government and jurisdictions such as the District of Columbia that are under its direct authority.  However, in the 2010 case McDonald v. Chicago, the Court applied the central tenets of Heller to state and local governments as well using the Fourteenth Amendment’s Due Process Clause.  Thus, according to two clear Supreme Court precedents, the individual right to possess and use privately-owned firearms for lawful and traditional purposes must be honored by federal, state, and local units of government.  Unfortunately, though, many lower courts have been reluctant to abide by the holdings in Heller and McDonald.  In several cases, “progressive” judges have set aside these precedents and instead have ruled according to their own predilection.  Only time will tell whether inferior courts will allow the right to keep and bear arms to assume its rightful place in the pantheon of liberties protected by the Bill of Rights.

District of Columbia v. Heller (2008) Supreme Court decision:

Dr. David A. Raney is a Professor of History and holds the John Anthony Halter Chair in American History, the Constitution, and the Second Amendment at Hillsdale College.  Dr. Raney writes and speaks about the Second Amendment frequently, and his teaching and research interests range widely from the early American republic through the Civil War and Reconstruction.

1 reply
  1. David Humphrey
    David Humphrey says:

    never read this but have argued it for some time ( the first portion of the amendment (its prefatory clause) explains the purpose of the remainder of the amendment (the operative clause) but does not restrict it in any way.)
    Some people never believe me and that is how I can judge a progressive vs. a conservative. I couch it in terms of the possible need to form a militia against the threats of a rogue federal government.


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