Gun Ownership Rights Under Heller

What does the Supreme Court say about your right to own a gun in Heller?

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In District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court weighed in on gun ownership rights, ruling that the U.S. Constitution protects an individual's right to own a gun for personal use. Yet despite the Court's clear ruling that people may keep a loaded handgun at home for self-defense, Heller allows for certain restrictions to gun ownership.

What Heller Says

The Heller case involved a challenge to the District of Columbia's ban on handguns. For the first time in nearly 70 years, the U.S. Supreme Court ruled on the meaning of the Second Amendment to the U.S. Constitution as it relates to gun control laws.

The Second Amendment provides that "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."

For many years, scholars and anti-gun proponents have argued that the Second Amendment provides a right to own guns only in connection with service in a militia, and that this right should not extend to private individuals. That argument was roundly rejected by the Supreme Court. In an opinion authored by Justice Antonin Scalia, the Court held that the right to own a gun is not connected with service in a militia; rather, it is a personal right to own a firearm for "traditionally lawful purposes" such as self-defense within the home.

The bottom line: You have a constitutional right to possess a firearm regardless of whether you are serving in a militia. But just how far that right extends isn't necessarily clear.

How Heller Affects Gun Control Laws

The gun control law at issue in the Heller case—a nearly across-the-board gun ban in the District of Columbia—was considered to be the strictest gun control law in the nation. Although the Supreme Court's decision adopted the broader, individual-rights interpretation of the Second Amendment, the Court made it clear that the right to own a gun continues to have a number of significant qualifications or restrictions. The Court indicated that the Second Amendment continues to allow for limits on guns like the following:

  • Not everyone can own a gun. The right can be withheld from felons and the mentally ill.
  • Guns cannot be carried everywhere. Laws forbidding individuals from carrying  firearms in "sensitive" places, such as schools and government buildings, will probably stand.
  • Certain restrictions on the sale of guns are allowed. Laws imposing conditions and qualifications on the commercial sale of firearms will most likely stand.
  • Individuals do not have the right to carry certain types of guns. The right does not protect guns that are not generally owned for lawful purposes, such as short-barreled shotguns. (The Court endorsed the "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'")
  • Concealed weapons. Laws forbidding people to carry concealed weapons on their person (or in a place close at hand, such as the glove compartment of a car) probably remain valid.
  • Sentence enhancements. A variety of criminal laws provide for increased punishment of offenders who use weapons when committing a crime. Heller does not affect the validity of these laws.

For More

To learn more about how the criminal justice system works, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo). And if you need a criminal defense attorney, you can turn to Nolo's Lawyer Directory to find a lawyer near you.

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