The Heller Decision: A Radical Departure from Longstanding Second Amendment Case Law

The law regarding the meaning of the Second Amendment changed dramatically in 2008, when the US Supreme Court held for the first time that the Second Amendment guarantees an individual right to possess a firearm in the home for self-defense. In District of Columbia v. Heller, the Court struck down Washington DC’s decades-old ban on handgun possession, and the requirement that firearms in the home be stored unloaded and disassembled or bound by a locking device (a requirement which had no exception for self-defense).

The Supreme Court stated, however, that the Second Amendment should not be understood as conferring a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court identified examples of “presumptively lawful” firearm laws, including laws prohibiting firearm possession by felons and the mentally ill, forbidding firearm possession in sensitive places such as schools and government buildings, and imposing conditions on the commercial sale of firearms. The Court noted that this list is not exhaustive, and concluded that the Second Amendment is also consistent with laws banning “dangerous and unusual weapons” not in common use at the time, such as M-16 rifles and other firearms that are most useful in military service. In addition, the Court declared that its analysis should not be read to suggest “the invalidity of laws regulating the storage of firearms to prevent accidents.” Our Heller page has more information about the many difficulties created by this decision.

The ruling in Heller represented a radical departure from the Court’s previous interpretation of the Second Amendment. In United States v. Miller, the Court stated, in a unanimous decision, that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness of” the state militia. In reliance on Miller, hundreds of lower federal and state appellate courts had rejected Second Amendment challenges to our nation’s gun laws over the last seven decades, making Heller‘s reversal of this interpretation a watershed moment in Second Amendment law.


McDonald and the Second Amendment After Heller

The Heller decision has led to a flood of litigation, resulting in over 200 decisions on federal and state Second Amendment challenges to our nation’s gun laws. A dozen significant lawsuits have been filed against state and local governments and numerous criminal defendants and appellants have challenged a wide variety of federal and state firearms laws on the basis of Heller.

On June 28, 2010, the United States Supreme Court held in a 5-4 ruling in McDonald v. City of Chicago that the Second Amendment applies to state and local governments in addition to the federal government. In doing so, the Court reversed a Seventh Circuit decision that affirmed the dismissal of Second Amendment challenges to handgun bans in Chicago and Oak Park, Illinois. The Court had not reached the issue of whether the Second Amendment applies against the states in Heller, because that case involved only the laws of the District of Columbia (which is a federal enclave).


Giffords Law Center’s Work on Second Amendment Issues

Giffords Law Center to Prevent Gun Violence is actively involved in supporting state and local governments’ defense of Second Amendment litigation, educating courts, governments, and the public about the meaning of the Second Amendment, and developing common sense gun violence prevention legislation that complies with the Heller decision.