The Lost Constitutional Continent Found: Supreme Court Recognizes Individual Right of Gun Ownership

The Second Amendment has always been like the lost continent of the Constitution. Well, today the Supreme Court discovered it — right between the first and third amendments — after 127 years. The Court ruled that the Second Amendment does indeed create an individual right to gun ownership. The opinion can be accessed here.

The Supreme Court also gave a victory to millionaires running for office who can finance their campaigns more freely — or buy guns more easily.

Justice Scalia as expected is the author of the majority the opinion. Justice Breyer dissented, with Justices Stevens, Souter and Ginsburg. Two dissents were written in the 5-4 split — written by Stevens and Breyer. This is another case (as with the death penalty decision yesterday) of the power of Justice Kennedy as the swing voter. On cases like this, it becomes a Court of one.

Scalia emphasized that reasonable limitations can be placed on the right, such as possession by felons etc. The Court also said that it was not ruling on whether laws requiring licenses are constitutional. The Court struck down two provisions of D.C.’s 1976 gun control law. First it found unconstitutional to ban the possession of a gun in the home and second it found uconstitutional to require that any gun, other than one kept at a business, be unloaded and disassembled or have a trigger lock in place.

While I have gotten a fair amount of heat over it, I have long held that the second amendment does indeed create an individual right, here.

While I am not an advocate of gun ownership, I still believe that it is a cause for celebration whenever individual right is recognized — I only wish many second amendment advocates showed the same passion in resisting attacks on other such rights by the Bush Administration in the first, fourth, fifth, sixth, and eighth amendments.

The ruling does not mean that citizens can go out and purchase AK-47s. Like other individual rights in the Bill of Rights, gun ownership will be subject to reasonable limitations.

Yet, the decision does show how politics can distort legal judgment. Many of us chided the D.C. Attorney General’s office for pushing this appeal when it was clear that they would expand their loss and extend it across the country. Nevertheless, Nichols and his staff felt great pressure to “do something” even if it meant a virtually certain ruling that would throw dozens of other laws into question.

Today, the Court also decided Davis v. Federal Election Commission (07-320) — a case looking at the so-called “Millionaire’s Amendment” to campaign finance laws, which relaxes campaign finance limits for opponents of congressional candidates spending more than $350,000 of their own money. The Court invalidated the law in an opinion by Justice Alito. The Davis opinion is available here. This invalidates both contribution limits and the disclosure requirements.

For the story on today’s gun ruling, click here.

20 thoughts on “The Lost Constitutional Continent Found: Supreme Court Recognizes Individual Right of Gun Ownership”

  1. 1L:

    I like your math but stats are invariably misleading when applied to SCOTUS opinions and Congressional votes given all the maneuvering that goes on in the vote trading process. I would like to know how many times Scalia agress with the ACLU, as compared to Cheney. That would be a project indeed.

  2. Is it possible we’re overestimating how much of a “swing voter” Kennedy actially is? On split decisions he agrees with the Chief Justice 77% of the time and Thomas 74% of the time. This is as much as Alito agrees with Roberts and more than Alito agrees with Thomas or Scalia. Just something to think about.

  3. As an aged liberal and civil libertarian I have always believed that the 2nd Amendment plainly affirmed the right of the citizenry to keep and bear arms. I’ve never owned a handgun, or rifle and don’t intend to be purchasing either weapon in the future. The thought of hunting and killing animals for fun disgusts me. However, I think that too much liberal energy and credibility has been wasted opposing this issue.

    There is another outcome to this decision which I think leads us into the venue of the Law of Unintended Consequences. Most modern, faux conservatives of the Bush-Cheney ilk, their minions, and camp followers are no doubt celebrating this ruling as a great victory. They have striven mightily towards this day of joy. I believe that this cabal has also been pushing this country towards classic Fascism of the corporate variety. How ironic might it be if this decision winds up saving our country from these evil, but bumbling oafs?

  4. Bob,Esq:

    No thanks Bob. That’s you fight with a persistent adversary.

  5. Mespo,

    Seeing you’re on the ‘distinction between tyranny and usurpation’ wavelength, evidenced by your last post re Jefferson, perhaps you can explain why comprehending the order of operations regarding powers conferred and rights retained is crucial to understanding and interpreting our republican form of government.

    The point seems lost on those obsess in calling me ‘Thingum.’



  6. Marie A:

    Your points are well taken, and your analysis about violence is undoubtedly correct. I think the point made today is that a free people have the right to possess the means of maintaining their security and their freedom. We do well to remember that our freedoms are the fruit of armed conflict, and unfortunately that formula applies with few exceptions today. Jefferson’s motto summarizes beatifully the sentiment: “”Rebellion to tyrants is obedience to God.” One of his master works however takes into account the history and states the rule:

    “Prudence, indeed, will dictate that governments long established, should not be changed for light and transient causes; and, accordingly, all experience [has] shown that mankind are more disposed to suffer while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But, when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.” –Thomas Jefferson: Declaration of Independence, 1776. ME 1:29, Papers 1:429

    If DC v. Heller comes to stand for that Jeffersonian proposition, it will find few detractors. Scalia, to his credit, made the point that the right is subject to reasonable restrictions and I do not think we will see gangs of men walking around with RPG’s anytime soon.

  7. Affirming the 2nd Amendment as an individual right and recognizing that one may keep a gun in one’s home is not the same as advocating violence.

    Considering that roughly half of Americans possess at least 1 weapon, statistically we would have far greater violence if this were so. (And you can blame criminalization of drugs for much of America’s violence.)

    I applaud Mr. Turley once again for his consistent stance in regard to the Constitution, irrespective of his personal politics.

  8. I thought the lost continent was a black site! I love the bumper sticker substitutions.

  9. People have always had the right to bare arms. Especially in Phoenix with the 110 dry heat.

  10. Read between the lines, Thingum.

    You, who as far as I can tell, has only read Immanuel Kant three times – for pleasure!

    JT, is talking about the resolution of a legal argument that has been going on since the 1930’s – whether the conditions at the time of the writing of the Constitution and BOR are applicable today as to indivual gun ownership.

    I’ve had the same two perfectly cogent arguments, myself, in support of the SCOTUS majority, today. And I don’t own a gun-never have!

  11. Bob,Esq:

    You are correct as Scalia himself noted that the right pre-dated the drafting of the Constitution since the Amendment says the right shall not be “infringed” implying its pre-existence, rather than its creation. Good lawyering by you, as always.

  12. Once again, the 2nd Amendment DOES NOT ‘CREATE’ any rights.

    An individual’s right to KBA existing a priori is a condition precedent to a Second Amendment ‘securing’ said right.

    Failure to acknowledge the truth contained within the analytic judgment above leads to a misunderstanding of the entire order of operations of the Constitution.

    E.g. this is why you had someone like Gonzalez saying “The constitution does not confer a right of habeas corpus.”

  13. Jill:

    I am hoping that our bumper sticker artists will simply move on to other unresolved constitutional questions such as . . .






    Okay, I am still working on it.


  14. Today the Supreme Court invalidated the use of one of America’s best bumper stickers…

    You can have my gun when you pry it from my cold, dead fingers.


    You and others make perfectly reasonable arguments to dundar. The problem with them is that they are, perfectly reasonable.


  15. dundar,

    if you were really so swayed by the 80% rule, you would be bound to accept the rejection of nearly 80% of Americans of Bush personally, his foreign and domestic policies, his conduct and the.
    I’ll bet about 80% of Americans opposed the abolition of slavery, civil rights legislation, women’s sufferage and the introduction of seat belts. What’s your point?

  16. The ruling is not a huge surprise. I disagree and believe this confirms Americas’ obsesssion with and over dependence on violence, but at least the matter is legally settled. However, this is not something to be proud of. This was an opportunity to define a better America and once again the right got it wrong.

  17. JT:

    Based on Madison’s introduction of the legislation as text to be inserted into the original Constitution, I have to conclude that Scalia got it right. Wikipedia has the history correct:

    “The right to keep and bear arms was not to be inserted in Article I, Section 8 that specifies Congress’s power over the militia. The sentence that later became the Second Amendment was to be inserted in the Article I, Section 9, between clauses 3 and 4, following the prohibitions on suspension of habeas corpus, bills of attainder, and ex post facto laws, all individual civil rights asserted by individuals as a defense against government action.”

    As to the other case, it sometimes seems that one of the unwritten rules of law, is that, all other things equal, millionaires almost always win.

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