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Friday, April 8, 2011

The Second Amendment: An Overview of District of Columbia v. Heller and McDonald v. City of Chicago

Vivian S. Chu
Legislative Attorney

In District of Columbia v. Heller, the Supreme Court of the United States ruled in a 5-4 decision that the Second Amendment to the Constitution of the United States protects an individual right to possess a firearm, unconnected with service in a militia, and the use of that firearm for traditionally lawful purposes, such as self-defense within the home. The decision in Heller affirmed the decision of the Court of Appeals for the District of Columbia, which declared three provisions of the District of Columbia’s Firearms Control Regulation Act unconstitutional. The provisions specifically ruled on were: D.C. Code § 7-2502.02, which generally barred the registration of handguns; D.C. Code § 22-4504, which prohibited carrying a pistol without a license, insofar as the provision would prevent a registrant from moving a gun from one room to another within his or her home; and D.C. Code § 7-2507.02, which required that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device. In noting that the District’s approach “totally bans handgun possession in the home,” the Supreme Court declared that the inherent right of self-defense is central to the Second Amendment right, and that the District’s handgun ban amounted to a prohibition of an entire class of arms that has been overwhelmingly utilized by American society for that purpose.

The Court in Heller conducted an extensive analysis of the Second Amendment to interpret its meaning, but the decision left unanswered other significant constitutional questions, including the standard of scrutiny that should be applied to laws regulating the possession and use of firearms, and whether the Second Amendment is incorporated, or applies to, the states.

After Heller, three federal Courts of Appeals addressed the question of incorporation. Two of these decisions, from the U.S. Courts of Appeals for the Second Circuit and the Seventh Circuit, held that the Second Amendment did not apply to the states, whereas the Court of Appeals for the Ninth Circuit held that the Second Amendment is incorporated under the Due Process Clause of the Fourteenth Amendment, although this decision has since been vacated. In McDonald v. City of Chicago, the Court reversed the decision of the Court of Appeals for the Seventh Circuit, and held that the Second Amendment applies to the states.

With respect to the Heller decision, this report provides an overview of judicial treatment of the Second Amendment over the past 70 years in both the Supreme Court and federal appellate courts. With respect to the McDonald decision, this report presents an overview of the principles of incorporation, early cases that addressed the application of the Second Amendment to state governments, and the federal appellate cases that addressed incorporation of the Second Amendment since the Heller decision. Lastly, this report provides an analysis of the Court’s opinions in Heller and McDonald and the potential implications of these decisions for firearms legislation at the federal, state, and local levels.

Date of Report: April 5, 2011
Number of Pages: 43
Order Number: R41750
Price: $29.95

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