Bucks Writs - Spring 2018 - 16

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The Majority

Alito
Kennedy
Roberts
Scalia
Thomas

Courtesy Collection of the Supreme Court of the United States
Photographer, Steve Petteway

Justice
Justice
Justice
Justice
Justice

The Dissents

Justice
Justice
Justice
Justice

Breyer
Ginsburg
Souter
Stevens

Heller, a special officer at a D.C. judiciary building, lawfully
carried a handgun while on duty. He attempted to register
a handgun for use in his home, but that registration was
denied. D.C. v. Heller, 554 U.S. 570, 574-76 (2008). A sharply
divided SCOTUS held that D.C.'s ban on handgun possession
in the home and the requirement that weapons be rendered
inoperable in the home violated the Second Amendment. The
Court held, for the first time, that the Second Amendment
protected an individual right to keep and bear arms separate
and apart from any collective militia-related purpose.

State, - is in the nature of a prologue and "does not limit
or expand the scope of the operative clause." Id. at 578.
Further, Scalia believed that even if he were to consider the
prefatory clause along with the operative clause, he would
reach the same conclusion in that an individual right to
keep and bear arms furthers the purpose of an effective
militia. Id. at 688. The prefatory clause "announces the
purpose for which the right was codified . . . [it] does not
suggest that preserving the militia was the only reason
Americans valued the ancient right..." Id. at 599.

Justice Scalia wrote the majority opinion and he was joined
by Justices Roberts, Kennedy, Thomas, and Alito. Both
the majority and the two dissenting opinions summarized
below are extensive, and a full exposition of them is well
beyond the scope of this article.

The Dissents
The dissents of Justices Stevens and Breyer, joined by each
other and by Justices Souter and Ginsburg, are pointed and
somewhat heated. Stevens' historical research diverges from
that of Scalia. Stevens argues that history shows that the
Second Amendment was drafted in response to the Founders'
concern that the creation of a national standing army would
threaten the individual militias, and hence the sovereignty, of
the individual states, and that eighteenth-century Americans
would have understood it to mean exactly that.

The Majority Opinion
Scalia, an originalist, performed a lengthy linguistic review
of the structure of the sentence and the historical meaning
of each of the operative words that comprise the Second
Amendment with the goal of determining what the
voters of the eighteenth century would have understood
the Second Amendment to mean. His conclusion was
that our forbearers would have believed that the Second
Amendment codified their pre-existing right to keep and
bear arms for their own individual protection.

The Second Amendment was adopted to protect the
right of the people of each of the several States to
maintain a well-regulated militia. . . . Neither the text
of the Amendment nor the arguments advanced by its
proponents evidenced the slightest interest in limiting
any legislature's authority to regulate private civilian uses
of firearms. Specifically, there is no indication that the
Framers of the Amendment intended to enshrine the
common-law right of self-defense in the Constitution.

But what to make of the mention of a "well regulated
Militia?" Scalia opined that the operative clause - the
right of the people to keep and bear Arms, shall not be
infringed - was controlling. The prefatory clause - A well
regulated Militia, being necessary to the security of a free

Id. at 637.
16



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