Unpacking the Legacy of Heller in the Courts and State Governments
By Carl Schuman – Superior Court Judge, Connecticut; Former Assistant United States Attorney
Fifteen years have passed since the United States Supreme Court issued an opinion in the case of District of Columbia v. Heller. In a 5-4 decision, the Court held that the Second Amendment to the U.S. Constitution guarantees an individual’s right to possess a firearm in the home for self-defense unrelated to state military service.
For 200 years before Heller, the courts generally agreed that the Second Amendment limited a right to bear arms to service in the militia or military. That interpretation stems from its language: “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.” Although the amendment is oddly expressed and its interpretation is subject to debate, prior to Heller, the courts concluded that the phrase “A well-regulated Militia …” described the purpose of the amendment.
Speaking for the majority in Heller, Justice Antonin Scalia reasoned that the “well-regulated Militia” language constituted a prefatory clause and that the operative clause was the more expansive phrase, “the right of the people to keep and bear arms shall not be infringed.” The majority did cite a fair amount of contemporaneous history that supported its interpretation.
The Effect of the Heller Decision
Since the Heller decision, many gun owners now enjoy constitutional protection and it is common to refer to one’s “Second Amendment rights.” Indeed, in the years following the 2008 Heller ruling, the number of guns owned in the United States has exceeded its population. At the same time, in the past 15 years, gun violence has become an epidemic. Gun deaths have risen steadily since 2014, with almost 50,000 firearm deaths annually, including both homicide and suicide. According to the Centers for Disease Control, gun violence is now the number one killer of American children. And mass shootings, while constituting only a small portion of overall gun violence, are tragically commonplace. The impact and fear of gun violence have changed the American way of life.
However, Heller did not prohibit all gun control. The Court observed, “Like most rights, the right secured by the Second Amendment is not unlimited.” It further expressed that the right was “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court identified a non-exhaustive list of presumptively lawful gun restrictions, including “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” The Court’s statement in that regard is consistent with its treatment of other constitutional rights, such as the limitation and regulation of free speech. The critical difference with the Second Amendment is that its improper invocation can have lethal consequences.
A recent study by the Giffords Organization—named after former congresswoman and shooting victim Gabrielle Giffords—revealed that the states with the most comprehensive gun regulation have the least gun violence. Conversely, states with the least restrictive laws have the highest gun violence. Thus, Massachusetts, Hawaii, Rhode Island, New York, New Jersey, and Connecticut have experienced the fewest gun deaths per 100,000 people, while Alaska, Mississippi, Louisiana, Alabama, and Missouri have experienced the most.
Bruen Case Extended Right to Bear Arms Outside the Home
While these statistics supply some political support for stricter gun regulation, the legal case for gun control may be more challenging after a 2022 Supreme Court decision. In the case of New York State Rifle & Pistol Association v. Bruen, the Supreme Court struck down a New York law prohibiting the carrying of a handgun in public without a license based on a showing of a special need for self-protection beyond that of the general community. Hence, for the first time, the Court held that the Second Amendment right to bear arms extended outside the home. It also decided that gun regulations, to be constitutional, must be “consistent with the Nation’s historical tradition of firearm regulation.” The Court’s opinion, written by Justice Clarence Thomas, thus called for using the theory of originalism to interpret the Second Amendment.
For gun control advocates, Bruen’s new historical standard may prove difficult to satisfy. Interpretation of historical documents more than two centuries old is not easy and can be subjective. It also may be hard to prove that regulation of 21st-century items such as ghost guns, assault weapons, and large capacity magazines had any analogous history in the 18th century.
The Second Amendment Is Neither a Blank Check Nor a Straightjacket
However, those proposing stricter gun control may draw hope from a concurrence written by Justice Brett Kavanaugh and joined by Chief Justice John Roberts. Justice Kavanaugh stated that the Court’s decision does not prohibit the 43 States that have licensing requirements for handguns from using them as long as they do not require any showing of special need. Further, Kavanaugh explained that, because the Second Amendment “is neither a regulatory straightjacket nor a regulatory blank check,” it allows a “variety” of gun regulations. The concurrence of Kavanaugh and Roberts is especially important. It suggests that, on a given issue, they could join with Justices Sonia Sotomayor, Elana Kagan, and Ketanji Brown Jackson, who favor gun control, to form a five-vote majority and support the constitutionality of a gun control measure.
Despite the enormity of gun crime in the U.S. and evidence supporting the theory that gun restrictions limit this violence, there is no doubt that gun control advocates will face future constitutional challenges. In addition, the political obstacles in Congress may prove equally difficult to overcome.
State Governments Could Provide a Middle Ground on Gun Control
State governments perhaps offer more hope for those seeking reasonable or so-called “common sense” gun regulation. For example, in my home state of Connecticut, the state constitution—every state has one—affirms: “Every citizen has a right to bear arms in defense of himself and the state.” In contrast to the ambiguity of the Second Amendment, this language makes clear the guarantee of a personal right to carry firearms.
Nevertheless, the Connecticut Supreme Court has interpreted the state constitution to allow for a state legislative assault weapon ban on the ground that assault weapons are not necessary for personal defense. In Tennessee, which has permissive gun laws, the shooting deaths of six people at a Nashville school prompted the governor to act. His executive order expands background checks. He called on lawmakers to pass a law to prevent, as the order states, “dangerous persons from accessing firearms.”
Of course, one can still challenge the constitutionality of state legislation on federal constitutional grounds under Heller and Bruen. And even if state and federal courts uphold a state’s gun control legislation, such legislation is not always effective in preventing prohibited guns from entering from a state that allows them. But growing political pressure to curb the current proliferation of mass shootings may result in more of the “presumptively lawful” gun regulation that Heller and Bruen permit at the state and local level.
If you enjoyed this article, please make sure to like, comment, and share below. You can also read more op-eds here.
Carl J. Schuman
Carl Schuman has served as a Superior Court judge in Connecticut since 1998. He is a former Assistant United States Attorney and currently is on the adjunct faculty of Quinnipiac University School of Law. He is a regular contributor to Divided We Fall. His views do not necessarily reflect the views of the Connecticut Judicial Branch.