What did the Supreme Court say in District of Columbia v. Heller?

0:04It was a very narrow holding. This is very common for the Supreme Court when it enters into a new area of law, whether it's a First Amendment or any other provision in the Constitution. We set up the case that way. Really what Justice Scalia said is he acknowledged the differing views on the so called militia centric interpretation of the Second Amendment and the individual rights model. What he did was he passed the text that we started off with of the Second Amendment to try to articulate and identify the meaning of the different terms like militia and infringe. Basically, his conclusion was that the so called prefatory clause, the well regulated militia, being necessary to the security of a free state, really didn't carry a lot of weight. It didn't modify the operative clause, the right of the people to keep in bear arms shall not be infringed.

0:52It really just provided some context. He argued, and I find persuasively, but others don't, that this was not unusual. There are other provisions, both in the United States Constitution and state constitutions and also federal laws like the Northwest Ordinance, where there are other prefatory clauses. We have one in Article I Section 8, that in effect to promote the useful arts and sciences. Congress has the authority to issue copyrights and patents, you don't have to show that your invention will, in fact, promote the useful arts and sciences or that your poem or your new cartoon or whatever will promote the useful arts and sciences to get a copyright. Once Justice Scalia and the other four justices in the majority embrace that understanding that the prefatory clause does not significantly modify the operative clause,

1:35then the outcome was in effect determined because that's really the question. If you're really going to focus on the operative clause, the right of the people to keep and bear arms shall not be infringed you're definitely going to strike down a complete ban on functional firearms, which is precisely what they did in Washington, DC. Justice Stevens wrote what has come to be called the principal dissent, even though I think actually Justice Breyer's dissent has had more of an impact. But let's look at Justice Stevens dissent first.

1:59Justice Stevens, joined by the other three justices in the dissent, took exception to Justice Scalia's characterization of the relevant history, his interpretation of the different provisions of the Second Amendment, and Justice Stevens really offered a different narrative. In which the militia centric or the idea that the Second Amendment really only applies in the context of some organized military service was the brust of that Stevens dissenting opinion. It was very well done. I did not find it persuasive, but I acknowledge that it was very well done, and other people do find it persuasive. Justice Breyer wrote a dissent, a separate dissent that all of the justices, including Stevens, also joined, in which he took a characteristically Steven Breyer approach, which is to say, look, even if the Second Amendment does protect an individual right, it's still not an absolute right.

2:51We need to think through what would the scope of the right be? How much leeway do we give the government when it comes to regulating, not prohibiting, but regulating the exercise of this right. The constructed a balancing test, applied that balancing test to the law that was at issue in Washington, DC, and found that given a variety of circumstances, including the murder rate in Washington, DC, which is very high, the harm the guns can and demonstrably do, although I think they also can do a lot of good. But that at the end of the day, was really no business of the courts to second guess the policy decisions of the legislative branch when it comes to the regulation of firearms ownership, and the Supreme Court should stay out of it in essentially all but the most extreme cases, and he didn't feel that Heller rose to that level.