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Al Norris · November 24, 2008, 01:15 PM

I don't know how many remember, but in the original Heller thread, I made note of one fact of the question that was to be answered:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The part that I underlined was essential to and in fact answered in the Holding:

1. Operative Clause.

a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” Opinion of the Court (07-290.pdf) Pp 5 para 2.

At footnote 5 (Pp 5 & 6, op cite), Justice Scalia chastises Justice Stevens for his "collective" rights theories (pertaining to Amend. 1), thus establishing a singular and individual right. Further, on Pp 20, para 2, Scalia writes, "By the time of the founding, the right to have arms had become fundamental for English subjects." thus establishing that the right of the people being discussed was a fundamental right. The nature of the question itself, decouples any militia requirement from the right itself.

The holding actually goes on to describe what type of arms they are talking about in this case:

We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179 [Miller - 1939]. Op cite Pp 55 para 2.

The above added to:

"we hold that the District’s ban on handgun possession in the home (D.C. Code § 7-2502.02(a)(4)) violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable (D.C. Code § 7-2507.02) 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."

This leaves only D.C. Code § 22-4504(a), which is the law that requires an additional license to move (carry) a firearm within the home. While not directly addressed by the Court, it was indirectly addressed at the very end of the opinion:

"We affirm the judgment of the Court of Appeals." Pp 64, para 3. The D.C. Circuit did in fact address that issue.

Briefly stated then, the Courts holding is:

The Second Amendment at a minimum, consists of a fundamental right to keep (own) and bear (carry) firearms in common use, wherein a complete ban of a specific type of firearm is unconstitutional, and any requirement that precludes the use of a firearm for immediate self protection in the home is unconstitutional, and any requirement to license the use and movement of firearms in the home for immediate self protection is unconstitutional.

Now that is the way I read how the opinion answers the question. Your opinion, the opinions of others, and more importantly, the opinions of the various appellate courts may very well be different. Having just stated those caveats, I feel confident that the courts will read the decision as I have stated it.

November 24, 2008, 01:15 PM	#7
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	I don't know how many remember, but in the original Heller thread, I made note of one fact of the question that was to be answered: “Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” The part that I underlined was essential to and in fact answered in the Holding: 1. Operative Clause. a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” Opinion of the Court (07-290.pdf) Pp 5 para 2. At footnote 5 (Pp 5 & 6, op cite), Justice Scalia chastises Justice Stevens for his "collective" rights theories (pertaining to Amend. 1), thus establishing a singular and individual right. Further, on Pp 20, para 2, Scalia writes, "By the time of the founding, the right to have arms had become fundamental for English subjects." thus establishing that the right of the people being discussed was a fundamental right. The nature of the question itself, decouples any militia requirement from the right itself. The holding actually goes on to describe what type of arms they are talking about in this case: We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179 [Miller - 1939]. Op cite Pp 55 para 2. The above added to: "we hold that the District’s ban on handgun possession in the home (D.C. Code § 7-2502.02(a)(4)) violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable (D.C. Code § 7-2507.02) 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." This leaves only D.C. Code § 22-4504(a), which is the law that requires an additional license to move (carry) a firearm within the home. While not directly addressed by the Court, it was indirectly addressed at the very end of the opinion: "We affirm the judgment of the Court of Appeals." Pp 64, para 3. The D.C. Circuit did in fact address that issue. Briefly stated then, the Courts holding is: The Second Amendment at a minimum, consists of a fundamental right to keep (own) and bear (carry) firearms in common use, wherein a complete ban of a specific type of firearm is unconstitutional, and any requirement that precludes the use of a firearm for immediate self protection in the home is unconstitutional, and any requirement to license the use and movement of firearms in the home for immediate self protection is unconstitutional. Now that is the way I read how the opinion answers the question. Your opinion, the opinions of others, and more importantly, the opinions of the various appellate courts may very well be different. Having just stated those caveats, I feel confident that the courts will read the decision as I have stated it.