BREYER, J., DISSENTING
DISTRICT OF COLUMBIA V. HELLER
554 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NO. 07-290
DISTRICT OF COLUMBIA, et al., PETITIONERS
v. DICK ANTHONY HELLER
on writ of certiorari to the united states court of
appeals for the district of columbia circuit
[June 26, 2008]
Justice Breyer, with whom Justice
Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
We must decide whether a District
of Columbia law that prohibits the possession of handguns in the
home violates the Second Amendment. The majority, relying upon its
view that the Second Amendment seeks to protect a right of personal
self-defense, holds that this law violates that Amendment. In my
view, it does not.
I
The majority’s conclusion is
wrong for two independent reasons. The first reason is that set
forth by Justice Stevens—namely, that the Second Amendment protects
militia-related, not self-defense-related, interests. These two
interests are sometimes intertwined. To assure 18th-century
citizens that they could keep arms for militia purposes would
necessarily have allowed them to keep arms that they could have
used for self-defense as well. But self-defense alone, detached
from any militia-related objective, is not the Amendment’s
concern.
The second independent reason is
that the protection the Amendment provides is not absolute. The
Amendment permits government to regulate the interests that it
serves. Thus, irrespective of what those interests are—whether they
do or do not include an independent interest in self-defense—the
majority’s view cannot be correct unless it can show that the
District’s regulation is unreasonable or inappropriate in Second
Amendment terms. This the majority cannot do.
In respect to the first independent reason, I
agree with Justice Stevens, and I join his opinion. In this opinion
I shall focus upon the second reason. I shall show that the
District’s law is consistent with the Second Amendment even if that
Amendment is interpreted as protecting a wholly separate interest
in individual self-defense. That is so because the District’s
regulation, which focuses upon the presence of handguns in
high-crime urban areas, represents a permissible legislative
response to a serious, indeed life-threatening, problem.
Thus I here assume that one objective (but, as
the majority concedes,
ante, at 26, not the
primary objective) of those who wrote the Second Amendment
was to help assure citizens that they would have arms available for
purposes of self-defense. Even so, a legislature could reasonably
conclude that the law will advance goals of great public
importance, namely, saving lives, preventing injury, and reducing
crime. The law is tailored to the urban crime problem in that it is
local in scope and thus affects only a geographic area both limited
in size and entirely urban; the law concerns handguns, which are
specially linked to urban gun deaths and injuries, and which are
the overwhelmingly favorite weapon of armed criminals; and at the
same time, the law imposes a burden upon gun owners that seems
proportionately no greater than restrictions in existence at the
time the Second Amendment was adopted. In these circumstances, the
District’s law falls within the zone that the Second Amendment
leaves open to regulation by legislatures.
II
The Second Amendment says 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.” In interpreting and applying this Amendment, I
take as a starting point the following four propositions, based on
our precedent and today’s opinions, to which I believe the entire
Court subscribes:
(1) The Amendment protects an
“individual” right—
i.e., one that is separately possessed,
and may be separately enforced, by each person on whom it is
conferred. See,
e.g.,
ante, at 22 (opinion of the
Court);
ante, at 1 (Stevens, J., dissenting).
(2) As evidenced by its preamble, the
Amendment was adopted “[w]ith obvious purpose to assure the
continuation and render possible the effectiveness of [militia]
forces.”
United States v.
Miller,
307 U. S. 174, 178
(1939); see
ante, at 26 (opinion of the Court);
ante, at 1 (Stevens, J., dissenting).
(3) The Amendment “must be interpreted and
applied with that end in view.”
Miller,
supra, at
178.
(4) The right protected by the Second
Amendment is not absolute, but instead is subject to government
regulation. See
Robertson v.
Baldwin,
165 U. S. 275, 281–282
(1897);
ante, at 22, 54 (opinion of the Court).
My approach to this case, while involving the
first three points, primarily concerns the fourth. I shall, as I
said, assume with the majority that the Amendment, in addition to
furthering a militia-related purpose, also furthers an interest in
possessing guns for purposes of self-defense, at least to some
degree. And I shall then ask whether the Amendment nevertheless
permits the District handgun restriction at issue here.
Although I adopt for present purposes the
majority’s position that the Second Amendment embodies a general
concern about self-defense, I shall not assume that the Amendment
contains a specific untouchable right to keep guns in the house to
shoot burglars. The majority, which presents evidence in favor of
the former proposition, does not, because it cannot, convincingly
show that the Second Amendment seeks to maintain the latter in
pristine, unregulated form.
To the contrary, colonial history itself
offers important examples of the kinds of gun regulation that
citizens would then have thought compatible with the “right to keep
and bear arms,” whether embodied in Federal or State Constitutions,
or the background common law. And those examples include
substantial regulation of firearms in urban areas, including
regulations that imposed obstacles to the use of firearms for the
protection of the home.
Boston, Philadelphia, and New York City, the
three largest cities in America during that period, all restricted
the firing of guns within city limits to at least some degree. See
Churchill, Gun Regulation, the Police Power, and the Right to Keep
Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007);
Dept. of Commerce, Bureau of Census, C. Gibson, Population of the
100 Largest Cities and Other Urban Places in the United States:
1790 to 1990 (1998) (Table 2), online at http://www.census.gov/
population/documentation/twps0027/tab02.txt (all Internet materials
as visited June 19, 2008, and available in Clerk of Court’s case
file). Boston in 1746 had a law prohibiting the “discharge” of “any
Gun or Pistol charged with Shot or Ball in the Town” on penalty of
40 shillings, a law that was later revived in 1778. See Act of May
28, 1746, ch. 10; An Act for Reviving and Continuing Sundry Laws
that are Expired, and Near Expiring, 1778 Massachusetts Session
Laws, ch. 5, pp. 193, 194. Philadelphia prohibited, on penalty of 5
shillings (or two days in jail if the fine were not paid), firing a
gun or setting off fireworks in Philadelphia without a “governor’s
special license.” See Act of Aug. 26, 1721, §4, in 3 Mitchell,
Statutes at Large of Pennsylvania 253–254. And New York City
banned, on penalty of a 20-shilling fine, the firing of guns (even
in houses) for the three days surrounding New Year’s Day. 5
Colonial Laws of New York, ch. 1501, pp. 244–246 (1894); see also
An Act to Suppress the Disorderly Practice of Firing Guns, &
c., on the Times Therein Mentioned, 8 Statutes at Large of
Pennsylvania 1770–1776, pp. 410–412 (1902) (similar law for all
“inhabited parts” of Pennsylvania). See also An Act for preventing
Mischief being done in the Town of
Newport, or in any
other Town in this Government, 1731, Rhode Island Session Laws
(prohibiting, on penalty of 5 shillings for a first offense and
more for subsequent offenses, the firing of “any Gun or Pistol … in
the Streets of any of the Towns of this Government, or in any
Tavern of the same, after dark, on any Night whatsoever”).
Furthermore, several towns and cities
(including Philadelphia, New York, and Boston) regulated, for
fire-safety reasons, the storage of gunpowder, a necessary
component of an operational firearm. See Cornell & DeDino, A
Well Regulated Right, 73 Fordham L. Rev. 487, 510–512 (2004).
Boston’s law in particular impacted the use of firearms in the home
very much as the District’s law does today. Boston’s gunpowder law
imposed a 10 fine upon “any Person” who “shall take into any
Dwelling-House, Stable, Barn, Out-house, Ware-house, Store, Shop,
or other Building, within the Town of Boston, any … Fire-Arm,
loaded with, or having Gun-Powder.” An Act in Addition to the
several Acts already made for the prudent Storage of Gun-Powder
within the Town of Boston, ch. XIII, 1783 Mass. Acts 218–219; see
also 1 S. Johnson, A Dictionary of the English Language 751 (4th
ed. 1773) (defining “firearms” as “[a]rms which owe their efficacy
to fire; guns”). Even assuming, as the majority does, see
ante, at 59–60, that this law included an implicit
self-defense exception, it would nevertheless have prevented a
homeowner from keeping in his home a gun that he could immediately
pick up and use against an intruder. Rather, the homeowner would
have had to get the gunpowder and load it into the gun, an
operation that would have taken a fair amount of time to perform.
See Hicks, United States Military Shoulder Arms, 1795–1935, 1 Am.
Military Hist. Foundation 23, 30 (1937) (experienced soldier could,
with specially prepared cartridges as opposed to plain gunpowder
and ball, load and fire musket 3-to-4 times per minute);
id., at 26–30 (describing the loading process); see also
Grancsay, The Craft of the Early American Gunsmith, 6 Metropolitan
Museum of Art Bulletin 54, 60 (1947) (noting that rifles were
slower to load and fire than muskets).
Moreover, the law would, as a practical
matter, have prohibited the carrying of loaded firearms anywhere in
the city, unless the carrier had no plans to enter any building or
was willing to unload or discard his weapons before going inside.
And Massachusetts residents must have believed this kind of law
compatible with the provision in the Massachusetts Constitution
that granted “the people … a right to keep and to bear arms for the
common defence”—a provision that the majority says was interpreted
as “secur[ing] an individual right to bear arms for defensive
purposes.” Art. XVII (1780), in 3 The Federal and State
Constitutions, Colonial Charters, and Other Organic Laws 1888, 1892
(F. Thorpe ed. 1909) (hereinafter Thorpe);
ante, at 28–29
(opinion of the Court).
The New York City law, which required that
gunpowder in the home be stored in certain sorts of containers, and
laws in certain Pennsylvania towns, which required that gunpowder
be stored on the highest story of the home, could well have
presented similar obstacles to in-home use of firearms. See Act of
April 13, 1784, ch. 28, 1784 N. Y. Laws p. 627; An Act for
Erecting the Town of Carlisle, in the County of Cumberland, into a
Borough, ch. XIV, §XLII, 1782 Pa. Laws p. 49; An Act for Erecting
the Town of Reading, in the County of Berks, into a Borough, ch.
LXXVI, §XLII, 1783 Pa. Laws p. 211. Although it is unclear whether
these laws, like the Boston law, would have prohibited the storage
of gunpowder inside a firearm, they would at the very least have
made it difficult to reload the gun to fire a second shot unless
the homeowner happened to be in the portion of the house where the
extra gunpowder was required to be kept. See 7 United States
Encyclopedia of History 1297 (P. Oehser ed. 1967) (“Until 1835 all
small arms [were] single-shot weapons, requiring reloading by hand
after every shot”). And Pennsylvania, like Massachusetts, had at
the time one of the self-defense-guaranteeing state constitutional
provisions on which the majority relies. See
ante, at 28
(citing Pa. Declaration of Rights, Art. XIII (1776), in 5 Thorpe
3083).
The majority criticizes my citation of these
colonial laws. See
ante, at 59–62. But, as much as it
tries, it cannot ignore their existence. I suppose it is possible
that, as the majority suggests, see
ante, at 59–61, they
all in practice contained self-defense exceptions. But none of them
expressly provided one, and the majority’s assumption that such
exceptions existed relies largely on the preambles to these acts—an
interpretive methodology that it elsewhere roundly derides. Compare
ibid. (interpreting 18th-century statutes in light of
their preambles), with
ante, at 4–5, and n. 3 (contending
that the operative language of an 18th-century enactment may extend
beyond its preamble). And in any event, as I have shown, the
gunpowder-storage laws would have
burdened armed
self-defense, even if they did not completely
prohibit
it.
This historical evidence demonstrates that a
self-defense assumption is the
beginning, rather than the
end, of any constitutional inquiry. That the District law
impacts self-defense merely raises
questions about the
law’s constitutionality. But to answer the questions that are
raised (that is, to see whether the statute is unconstitutional)
requires us to focus on practicalities, the statute’s rationale,
the problems that called it into being, its relation to those
objectives—in a word, the details. There are no purely logical or
conceptual answers to such questions. All of which to say that to
raise a self-defense question is not to answer it.
III
I therefore begin by asking a
process-based question: How is a court to determine whether a
particular firearm regulation (here, the District’s restriction on
handguns) is consistent with the Second Amendment? What kind of
constitutional standard should the court use? How high a protective
hurdle does the Amendment erect?
The question matters. The
majority is wrong when it says that the District’s law is
unconstitutional “[u]nder any of the standards of scrutiny that we
have applied to enumerated constitutional rights.”
Ante,
at 56. How could that be? It certainly would not be
unconstitutional under, for example, a “rational basis” standard,
which requires a court to uphold regulation so long as it bears a
“rational relationship” to a “legitimate governmental purpose.”
Heller v.
Doe,
509 U. S. 312, 320
(1993). The law at issue here, which in part seeks to prevent
gun-related accidents, at least bears a “rational relationship” to
that “legitimate” life-saving objective. And nothing in the three
19th-century state cases to which the majority turns for support
mandates the conclusion that the present District law must fall.
See
Andrews v.
State, 50 Tenn. 165, 177, 186–187,
192 (1871) (striking down, as violating a
state
constitutional provision adopted in 1870, a
statewide ban
on a carrying a broad class of weapons, insofar as it applied to
revolvers);
Nunn v.
State, 1 Ga. 243, 246,
250–251 (1846) (striking down similarly broad ban on openly
carrying weapons, based on erroneous view that the Federal Second
Amendment applied to the States);
State v.
Reid,
1 Ala. 612, 614–615, 622 (1840) (
upholding a
concealed-weapon ban against a
state constitutional
challenge). These cases were decided well (80, 55, and 49 years,
respectively) after the framing; they neither claim nor provide any
special insight into the intent of the Framers; they involve laws
much less narrowly tailored that the one before us; and state cases
in any event are not determinative of federal constitutional
questions, see,
e.g.,
Garcia v.
San Antonio
Metropolitan Transit Authority,
469 U. S. 528, 549 (1985) (citing
Martin v.
Hunter’s Lessee, 1 Wheat. 304
(1816)).
Respondent proposes that the Court adopt a
“strict scrutiny” test, which would require reviewing with care
each gun law to determine whether it is “narrowly tailored to
achieve a compelling governmental interest.”
Abrams v.
Johnson,
521
U. S. 74, 82 (1997); see Brief for Respondent 54–62. But the
majority implicitly, and appropriately, rejects that suggestion by
broadly approving a set of laws—prohibitions on concealed weapons,
forfeiture by criminals of the Second Amendment right, prohibitions
on firearms in certain locales, and governmental regulation of
commercial firearm sales—whose constitutionality under a strict
scrutiny standard would be far from clear. See
ante, at
54.
Indeed, adoption of a true strict-scrutiny
standard for evaluating gun regulations would be impossible. That
is because almost every gun-control regulation will seek to advance
(as the one here does) a “primary concern of every government—a
concern for the safety and indeed the lives of its citizens.”
United States v.
Salerno,
481 U. S. 739, 755
(1987). The Court has deemed that interest, as well as “the
Government’s general interest in preventing crime,” to be
“compelling,” see
id., at 750, 754, and the Court has in a
wide variety of constitutional contexts found such public-safety
concerns sufficiently forceful to justify restrictions on
individual liberties, see
e.g.,
Brandenburg v.
Ohio,
395
U. S. 444, 447 (1969)
(per curiam) (First Amendment
free speech rights);
Sherbert v.
Verner,
374 U. S. 398, 403
(1963) (First Amendment religious rights);
Brigham City v.
Stuart,
547
U. S. 398, 403–404 (2006) (Fourth Amendment protection of the
home);
New York v.
Quarles,
467 U. S. 649, 655
(1984) (Fifth Amendment rights under
Miranda v.
Arizona,
384 U. S. 436 (1966));
Salerno,
supra, at 755 (Eighth Amendment bail
rights). Thus, any attempt
in theory to apply strict
scrutiny to gun regulations will
in practice turn into an
interest-balancing inquiry, with the interests protected by the
Second Amendment on one side and the governmental public-safety
concerns on the other, the only question being whether the
regulation at issue impermissibly burdens the former in the course
of advancing the latter.
I would simply adopt such an
interest-balancing inquiry explicitly. The fact that important
interests lie on both sides of the constitutional equation suggests
that review of gun-control regulation is not a context in which a
court should effectively presume either constitutionality (as in
rational-basis review) or unconstitutionality (as in strict
scrutiny). Rather, “where a law significantly implicates competing
constitutionally protected interests in complex ways,” the Court
generally asks whether the statute burdens a protected interest in
a way or to an extent that is out of proportion to the statute’s
salutary effects upon other important governmental interests. See
Nixon v.
Shrink Missouri Government PAC,
528 U. S. 377, 402
(2000) (Breyer, J., concurring). Any answer would take account both
of the statute’s effects upon the competing interests and the
existence of any clearly superior less restrictive alternative. See
ibid. Contrary to the majority’s unsupported suggestion
that this sort of “proportionality” approach is unprecedented, see
ante, at 62, the Court has applied it in various
constitutional contexts, including election-law cases, speech
cases, and due process cases. See 528 U. S., at 403 (citing
examples where the Court has taken such an approach); see also,
e.g.,
Thompson v.
Western States Medical
Center,
535 U.
S. 357, 388 (2002) (Breyer, J., dissenting) (commercial
speech);
Burdick v.
Takushi,
504 U. S. 428, 433
(1992) (election regulation);
Mathews v.
Eldridge,
424 U. S. 319, 339–349
(1976) (procedural due process);
Pickering v.
Board of
Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563, 568
(1968) (government employee speech).
In applying this kind of standard the Court
normally defers to a legislature’s empirical judgment in matters
where a legislature is likely to have greater expertise and greater
institutional factfinding capacity. See
Turner Broadcasting
System, Inc. v.
FCC,
520 U. S. 180, 195–196
(1997); see also
Nixon,
supra, at 403 (Breyer,
J., concurring). Nonetheless, a court, not a legislature, must make
the ultimate constitutional conclusion, exercising its “independent
judicial judgment” in light of the whole record to determine
whether a law exceeds constitutional boundaries.
Randall
v.
Sorrell,
548 U. S. 230, 249
(2006) (opinion of Breyer, J.) (citing
Bose Corp. v.
Consumers Union of United States, Inc.,
466 U. S. 485, 499
(1984)).
The above-described approach seems preferable
to a more rigid approach here for a further reason. Experience as
much as logic has led the Court to decide that in one area of
constitutional law or another the interests are likely to prove
stronger on one side of a typical constitutional case than on the
other. See,
e.g.,
United States v.
Virginia,
518 U. S. 515, 531–534
(1996) (applying heightened scrutiny to gender-based
classifications, based upon experience with prior cases);
Williamson v.
Lee Optical of Okla., Inc.,
348 U. S. 483,
488 (1955) (applying rational-basis scrutiny to economic
legislation, based upon experience with prior cases). Here, we have
little prior experience. Courts that
do have experience in
these matters have uniformly taken an approach that treats
empirically-based legislative judgment with a degree of deference.
See Winkler, Scrutinizing the Second Amendment, 105 Mich.
L. Rev. 683, 687, 716–718 (2007) (describing hundreds of
gun-law decisions issued in the last half-century by Supreme Courts
in 42 States, which courts with “surprisingly little variation,”
have adopted a standard more deferential than strict scrutiny).
While these state cases obviously are not controlling, they are
instructive. Cf.,
e.g.,
Bartkus v.
Illinois,
359 U. S. 121, 134
(1959) (looking to the “experience of state courts” as informative
of a constitutional question). And they thus provide some comfort
regarding the practical wisdom of following the approach that I
believe our constitutional precedent would in any event
suggest.
IV
The present suit involves
challenges to three separate District firearm restrictions. The
first requires a license from the District’s Chief of Police in
order to carry a “pistol,”
i.e., a handgun, anywhere in
the District. See D. C. Code §22–4504(a) (2001); see also
§§22–4501(a), 22–4506. Because the District assures us that
respondent could obtain such a license so long as he meets the
statutory eligibility criteria, and because respondent concedes
that those criteria are facially constitutional, I, like the
majority, see no need to address the constitutionality of the
licensing requirement. See
ante, at 58–59.
The second District restriction
requires that the lawful owner of a firearm keep his weapon
“unloaded and disassembled or bound by a trigger lock or similar
device” unless it is kept at his place of business or being used
for lawful recreational purposes. See §7–2507.02. The only dispute
regarding this provision appears to be whether the Constitution
requires an exception that would allow someone to render a firearm
operational when necessary for self-defense (
i.e., that
the firearm may be operated under circumstances where the common
law would normally permit a self-defense justification in defense
against a criminal charge). See
Parker v.
District of
Columbia, 478 F. 3d 370, 401 (2007) (case below);
ante, at 57–58 (opinion of the Court); Brief for
Respondent 52–54. The District concedes that such an exception
exists. See Brief for Petitioners 56–57. This Court has final
authority (albeit not often used) to definitively interpret
District law, which is, after all, simply a species of federal law.
See,
e.g.,
Whalen v.
United States,
445 U. S. 684,
687–688 (1980); see also
Griffin v.
United
States,
336 U.
S. 704, 716–718 (1949). And because I see nothing in the
District law that would
preclude the existence of a
background common-law self-defense exception, I would avoid the
constitutional question by interpreting the statute to include it.
See
Ashwander v.
TVA,
297 U. S. 288, 348
(1936) (Brandeis, J., concurring).
I am puzzled by the majority’s unwillingness
to adopt a similar approach. It readily reads unspoken self-defense
exceptions into every colonial law, but it refuses to accept the
District’s concession that this law has one. Compare
ante,
at 59–61, with
ante, at 57–58. The one District case it
cites to support that refusal,
McIntosh v.
Washington, 395 A. 2d 744, 755–756 (1978), merely
concludes that the District Legislature had a rational basis for
applying the trigger-lock law in homes but not in places of
business. Nowhere does that case say that the statute precludes a
self-defense exception of the sort that I have just described. And
even if it did, we are not bound by a lower court’s interpretation
of federal law.
The third District restriction prohibits (in
most cases) the registration of a handgun within the District. See
§7–2502.02(a)(4). Because registration is a prerequisite to firearm
possession, see §7–2502.01(a), the effect of this provision is
generally to prevent people in the District from possessing
handguns. In determining whether this regulation violates the
Second Amendment, I shall ask how the statute seeks to further the
governmental interests that it serves, how the statute burdens the
interests that the Second Amendment seeks to protect, and whether
there are practical less burdensome ways of furthering those
interests. The ultimate question is whether the statute imposes
burdens that, when viewed in light of the statute’s legitimate
objectives, are disproportionate. See
Nixon, 528 U. S., at
402 (Breyer, J., concurring).
A
No one doubts the constitutional
importance of the statute’s basic objective, saving lives. See,
e.g.,
Salerno, 481 U. S., at 755. But there is
considerable debate about whether the District’s statute helps to
achieve that objective. I begin by reviewing the statute’s tendency
to secure that objective from the perspective of (1) the
legislature (namely, the Council of the District of Columbia) that
enacted the statute in 1976, and (2) a court that seeks to evaluate
the Council’s decision today.
1
First, consider the facts as the
legislature saw them when it adopted the District statute. As
stated by the local council committee that recommended its
adoption, the major substantive goal of the District’s handgun
restriction is “to reduce the potentiality for gun-related crimes
and gun-related deaths from occurring within the District of
Columbia.” Hearing and Disposition before the House Committee on
the District of Columbia, 94th Cong., 2d Sess., on H. Con. Res.
694, Ser. No. 94–24, p. 25 (1976) (herinafter DC Rep.)
(reproducing,
inter alia, the Council committee report).
The committee concluded, on the basis of “extensive public
hearings” and “lengthy research,” that “[t]he easy availability of
firearms in the United States has been a major factor contributing
to the drastic increase in gun-related violence and crime over the
past 40 years.”
Id., at 24, 25. It reported to the Council
“startling statistics,”
id., at 26, regarding gun-related
crime, accidents, and deaths, focusing particularly on the relation
between handguns and crime and the proliferation of handguns within
the District. See
id., at 25–26.
The committee informed the
Council that guns were “responsible for 69 deaths in this country
each day,” for a total of “[a]pproximately 25,000 gun-deaths … each
year,” along with an additional 200,000 gun-related injuries.
Id., at 25. Three thousand of these deaths, the report
stated, were accidental.
Ibid. A quarter of the victims in
those accidental deaths were children under the age of 14.
Ibid. And according to the committee, “[f]or every
intruder stopped by a homeowner with a firearm, there are 4
gun-related accidents within the home.”
Ibid.
In respect to local crime, the committee
observed that there were 285 murders in the District during 1974—a
record number.
Id., at 26. The committee also stated that,
“[c]ontrary to popular opinion on the subject, firearms are more
frequently involved in deaths and violence among relatives and
friends than in premeditated criminal activities.”
Ibid.
Citing an article from the American Journal of Psychiatry, the
committee reported that “[m]ost murders are committed by previously
law-abiding citizens, in situations where spontaneous violence is
generated by anger, passion or intoxication, and where the killer
and victim are acquainted.”
Ibid. “Twenty-five percent of
these murders,” the committee informed the Council, “occur within
families.”
Ibid.
The committee report furthermore presented
statistics strongly correlating handguns with crime. Of the 285
murders in the District in 1974, 155 were committed with handguns.
Ibid. This did not appear to be an aberration, as the
report revealed that “handguns [had been] used in roughly 54% of
all murders” (and 87% of murders of law enforcement officers)
nationwide over the preceding several years.
Ibid. Nor
were handguns only linked to murders, as statistics showed that
they were used in roughly 60% of robberies and 26% of assaults.
Ibid. “A crime committed with a pistol,” the committee
reported, “is 7 times more likely to be lethal than a crime
committed with any other weapon.”
Id., at 25. The
committee furthermore presented statistics regarding the
availability of handguns in the United States,
ibid., and
noted that they had “become easy for juveniles to obtain,” even
despite then-current District laws prohibiting juveniles from
possessing them,
id., at 26.
In the committee’s view, the current District
firearms laws were unable “to reduce the potentiality for
gun-related violence,” or to “cope with the problems of gun control
in the District” more generally.
Ibid. In the absence of
adequate federal gun legislation, the committee concluded, it
“becomes necessary for local governments to act to protect their
citizens, and certainly the District of Columbia as the only
totally urban statelike jurisdiction should be strong in its
approach.”
Id., at 27. It recommended that the Council
adopt a restriction on handgun registration to reflect “a
legislative decision that, at this point in time and due to the
gun-control tragedies and horrors enumerated previously” in the
committee report, “pistols … are no longer justified in this
jurisdiction.”
Id., at 31; see also
ibid.
(handgun restriction “denotes a policy decision that handguns …
have no legitimate use in the purely urban environment of the
District”).
The District’s special focus on handguns thus
reflects the fact that the committee report found them to have a
particularly strong link to undesirable activities in the
District’s exclusively urban environment. See
id., at
25–26. The District did not seek to prohibit possession of other
sorts of weapons deemed more suitable for an “urban area.” See
id., at 25. Indeed, an original draft of the bill, and the
original committee recommendations, had sought to prohibit
registration of shotguns as well as handguns, but the Council as a
whole decided to narrow the prohibition. Compare
id., at
30 (describing early version of the bill), with D. C. Code
§7–2502.02).
2
Next, consider the facts as a
court must consider them looking at the matter as of today. See,
e.g.,
Turner, 520 U. S., at 195 (discussing role
of court as factfinder in a constitutional case). Petitioners, and
their
amici, have presented us with more recent statistics
that tell much the same story that the committee report told 30
years ago. At the least, they present nothing that would permit us
to second-guess the Council in respect to the numbers of gun
crimes, injuries, and deaths, or the role of handguns.
From 1993 to 1997, there were
180,533 firearm-related deaths in the United States, an average of
over 36,000 per year. Dept. of Justice, Bureau of Justice
Statistics, M. Zawitz & K. Strom, Firearm Injury and Death from
Crime, 1993–97, p. 2 (Oct. 2000), online at http://
www.ojp.usdoj.gov/bjs/pub/pdf/fidc9397.pdf (hereinafter Firearm
Injury and Death from Crime). Fifty-one percent were suicides, 44%
were homicides, 1% were legal interventions, 3% were unintentional
accidents, and 1% were of undetermined causes. See
ibid.
Over that same period there were an additional 411,800 nonfatal
firearm-related injuries treated in U. S. hospitals, an average of
over 82,000 per year.
Ibid. Of these, 62% resulted from
assaults, 17% were unintentional, 6% were suicide attempts, 1% were
legal interventions, and 13% were of unknown causes.
Ibid.
The statistics are particularly striking in
respect to children and adolescents. In over one in every eight
firearm-related deaths in 1997, the victim was someone under the
age of 20. American Academy of Pediatrics, Firearm-Related Injuries
Affecting the Pediatric Population, 105 Pediatrics 888 (2000)
(hereinafter Firearm-Related Injuries). Firearm-related deaths
account for 22.5% of all injury deaths between the ages of 1 and
19.
Ibid. More male teenagers die from firearms than from
all natural causes combined. Dresang, Gun Deaths in Rural and Urban
Settings, 14 J. Am. Bd. Family Practice 107 (2001). Persons under
25 accounted for 47% of hospital-treated firearm injuries between
June 1, 1992 and May 31, 1993. Firearm-Related Injuries 891.
Handguns are involved in a majority of firearm
deaths and injuries in the United States.
Id., at 888.
From 1993 to 1997, 81% of firearm-homicide victims were killed by
handgun. Firearm Injury and Death from Crime 4; see also Dept. of
Justice, Bureau of Justice Statistics, C. Perkins, Weapon Use and
Violent Crime, p. 8 (Sept. 2003), (Table 10),
http://www.ojp.usdoj.gov/bjs/pub/pdf/wuvc01. pdf (hereinafter
Weapon Use and Violent Crime) (statistics indicating roughly the
same rate for 1993–2001). In the same period, for the 41% of
firearm injuries for which the weapon type is known, 82% of them
were from handguns. Firearm Injury and Death From Crime 4. And
among children under the age of 20, handguns account for
approximately 70% of all unintentional firearm-related injuries and
deaths. Firearm-Related Injuries 890. In particular, 70% of all
firearm-related teenage suicides in 1996 involved a handgun.
Id., at 889; see also Zwerling, Lynch, Burmeister, &
Goertz, The Choice of Weapons in Firearm Suicides in Iowa, 83 Am.
J. Public Health 1630, 1631 (1993) (Table 1) (handguns used in
36.6% of all firearm suicides in Iowa from 1980–1984 and 43.8% from
1990–1991).
Handguns also appear to be a very popular
weapon among criminals. In a 1997 survey of inmates who were armed
during the crime for which they were incarcerated, 83.2% of state
inmates and 86.7% of federal inmates said that they were armed with
a handgun. See Dept. of Justice, Bureau of Justice Statistics, C.
Harlow, Firearm Use by Offenders, p. 3 (Nov. 2001), online at
http:// www.ojp.usdoj.gov/bjs/pub/pdf/fuo.pdf; see also Weapon Use
and Violent Crime 2 (Table 2) (statistics indicating that handguns
were used in over 84% of nonlethal violent crimes involving
firearms from 1993 to 2001). And handguns are not only popular
tools for crime, but popular objects of it as well: the FBI
received on average over 274,000 reports of stolen guns for each
year between 1985 and 1994, and almost 60% of stolen guns are
handguns. Dept. of Justice, Bureau of Justice Statistics, M.
Zawitz, Guns Used in Crime, p. 3 (July 1995), online at
http://www.ojp.usdoj.gov/bjs/pub/pdf/guic.pdf. Department of
Justice studies have concluded that stolen handguns in particular
are an important source of weapons for both adult and juvenile
offenders.
Ibid.
Statistics further suggest that urban
areas, such as the District, have different experiences with
gun-related death, injury, and crime, than do less densely
populated rural areas. A disproportionate amount of violent and
property crimes occur in urban areas, and urban criminals are more
likely than other offenders to use a firearm during the commission
of a violent crime. See Dept. of Justice, Bureau of Justice
Statistics, D. Duhart, Urban, Suburban, and Rural Victimization,
1993–98, pp. 1, 9 (Oct. 2000), online at
http://www.ojp.usdoj.gov/bjs/pub/pdf/ usrv98.pdf. Homicide appears
to be a much greater issue in urban areas; from 1985 to 1993, for
example, “half of all homicides occurred in 63 cities with 16% of
the nation’s population.” Wintemute, The Future of Firearm Violence
Prevention, 282 JAMA 475 (1999). One study concluded that although
the overall rate of gun death between 1989 and 1999 was roughly the
same in urban than rural areas, the urban homicide rate was three
times as high; even after adjusting for other variables, it was
still twice as high. Branas, Nance, Elliott, Richmond, &
Schwab, Urban-Rural Shifts in Intentional Firearm Death, 94 Am. J.
Public Health 1750, 1752 (2004); see also
ibid. (noting
that rural areas appear to have a higher rate of firearm suicide).
And a study of firearm injuries to children and adolescents in
Pennsylvania between 1987 and 2000 showed an injury rate in urban
counties 10 times higher than in nonurban counties. Nance &
Branas, The Rural-Urban Continuum, 156 Archives of Pediatrics &
Adolescent Medicine 781, 782 (2002).
Finally, the linkage of handguns to firearms
deaths and injuries appears to be much stronger in urban than in
rural areas. “[S]tudies to date generally support the hypothesis
that the greater number of rural gun deaths are from rifles or
shotguns, whereas the greater number of urban gun deaths are from
handguns.” Dresang,
supra, at 108. And the Pennsylvania
study reached a similar conclusion with respect to firearm
injuries—they are much more likely to be caused by handguns in
urban areas than in rural areas. See Nance & Branas,
supra, at 784.
3
Respondent and his many
amici for the most part do not disagree about the
figures set forth in the preceding subsection, but they do
disagree strongly with the District’s
predictive judgment
that a ban on handguns will help solve the crime and accident
problems that those figures disclose. In particular, they disagree
with the District Council’s assessment that “freezing the pistol …
population within the District,” DC Rep., at 26, will reduce crime,
accidents, and deaths related to guns. And they provide facts and
figures designed to show that it has not done so in the past, and
hence will not do so in the future.
First, they point out that, since
the ban took effect, violent crime in the District has increased,
not decreased. See Brief for Criminologists et al. as
Amici Curiae 4–8, 3a (hereinafter Criminologists’ Brief);
Brief for Congress of Racial Equality as
Amicus Curiae
35–36; Brief for National Rifle Assn. et al. as
Amici
Curiae 28–30 (hereinafter NRA Brief). Indeed, a comparison
with 49 other major cities reveals that the District’s homicide
rate is actually substantially
higher relative to these
other cities than it was before the handgun restriction went into
effect. See Brief for Academics as
Amici Curiae 7–10
(hereinafter Academics’ Brief); see also Criminologists’ Brief 6–9,
3a–4a, 7a. Respondent’s
amici report similar results in
comparing the District’s homicide rates during that period to that
of the neighboring States of Maryland and Virginia (neither of
which restricts handguns to the same degree), and to the homicide
rate of the Nation as a whole. See Academics’ Brief 11–17;
Criminologists’ Brief 6a, 8a.
Second, respondent’s
amici point to a
statistical analysis that regresses murder rates against the
presence or absence of strict gun laws in 20 European nations. See
Criminologists’ Brief 23 (citing Kates & Mauser, Would Banning
Firearms Reduce Murder and Suicide? 30 Harv. J. L. & Pub.
Pol’y 649, 651–694 (2007)). That analysis concludes that strict gun
laws are correlated with
more murders, not fewer. See
Criminologists’ Brief 23; see also
id., at 25–28. They
also cite domestic studies, based on data from various cities,
States, and the Nation as a whole, suggesting that a reduction in
the number of guns does not lead to a reduction in the amount of
violent crime. See
id., at 17–20. They further argue that
handgun bans do not reduce suicide rates, see
id., at
28–31, 9a, or rates of accidents, even those involving children,
see Brief for International Law Enforcement Educators and Trainers
Assn. et al. as
Amici Curiae App. 7–15 (hereinafter
ILEETA Brief).
Third, they point to evidence indicating that
firearm ownership does have a beneficial self-defense effect. Based
on a 1993 survey, the authors of one study estimated that there
were 2.2-to-2.5 million defensive uses of guns (mostly brandishing,
about a quarter involving the actual firing of a gun) annually. See
Kleck & Gertz, Armed Resistance to Crime, 86 J. Crim. L. &
C. 150, 164 (1995); see also ILEETA Brief App. 1–6 (summarizing
studies regarding defensive uses of guns). Another study estimated
that for a period of 12 months ending in 1994, there were 503,481
incidents in which a burglar found himself confronted by an armed
homeowner, and that in 497,646 (98.8%) of them, the intruder was
successfully scared away. See Ikida, Dahlberg, Sacks, Mercy, &
Powell, Estimating Intruder-Related Firearms Retrievals in U. S.
Households, 12 Violence & Victims 363 (1997). A third study
suggests that gun-armed victims are substantially less likely than
non-gun-armed victims to be injured in resisting robbery or
assault. Barnett & Kates, Under Fire, 45 Emory L. J. 1139,
1243–1244, n. 478 (1996). And additional evidence suggests that
criminals are likely to be deterred from burglary and other crimes
if they know the victim is likely to have a gun. See Kleck, Crime
Control Through the Private Use of Armed Force, 35 Social Problems
1, 15 (1988) (reporting a substantial drop in the burglary rate in
an Atlanta suburb that required heads of households to own guns);
see also ILEETA Brief 17–18 (describing decrease in sexual assaults
in Orlando when women were trained in the use of guns).
Fourth, respondent’s
amici argue that
laws criminalizing gun possession are self-defeating, as evidence
suggests that they will have the effect only of restricting
law-abiding citizens, but not criminals, from acquiring guns. See,
e.g., Brief for President
Pro Tempore of Senate
of Pennsylvania as
Amicus Curiae 35, 36, and n. 15.
That effect, they argue, will be especially pronounced in the
District, whose proximity to Virginia and Maryland will provide
criminals with a steady supply of guns. See Brief for Heartland
Institute as
Amicus Curiae 20.
In the view of respondent’s
amici,
this evidence shows that other remedies—such as
less
restriction on gun ownership, or liberal authorization of
law-abiding citizens to carry concealed weapons—better fit the
problem. See,
e.g., Criminologists’ Brief 35–37
(advocating easily obtainable gun licenses); Brief for Southeastern
Legal Foundation, Inc. et al. as
Amici Curiae 15
(hereinafter SLF Brief) (advocating “widespread gun ownership” as a
deterrent to crime); see also J. Lott, More Guns, Less Crime (2d
ed. 2000). They further suggest that at a minimum the District
fails to show that its
remedy, the gun ban, bears a
reasonable relation to the crime and accident
problems
that the District seeks to solve. See,
e.g., Brief for
Respondent 59–61.
These empirically based arguments may have
proved strong enough to convince many legislatures, as a matter of
legislative policy, not to adopt total handgun bans. But the
question here is whether they are strong enough to destroy judicial
confidence in the reasonableness of a legislature that rejects
them. And that they are not. For one thing, they can lead us more
deeply into the uncertainties that surround any effort to reduce
crime, but they cannot prove either that handgun possession
diminishes crime or that handgun bans are ineffective. The
statistics do show a soaring District crime rate. And the
District’s crime rate went up after the District adopted its
handgun ban. But, as students of elementary logic know,
after
it does not mean
because of it. What would the
District’s crime rate have looked like without the ban? Higher?
Lower? The same? Experts differ; and we, as judges, cannot say.
What about the fact that foreign nations with
strict gun laws have higher crime rates? Which is the cause and
which the effect? The proposition that strict gun laws
cause crime is harder to accept than the proposition that
strict gun laws in part grow out of the fact that a nation already
has a higher crime rate. And we are then left with the same
question as before: What would have happened to crime without the
gun laws—a question that respondent and his
amici do not
convincingly answer.
Further, suppose that respondent’s
amici are right when they say that householders’
possession of loaded handguns help to frighten away intruders. On
that assumption, one must still ask whether that benefit is worth
the potential death-related cost. And that is a question without a
directly provable answer.
Finally, consider the claim of respondent’s
amici that handgun bans
cannot work; there are
simply too many illegal guns already in existence for a ban on
legal guns to make a difference. In a word, they claim that, given
the urban sea of pre-existing legal guns, criminals can readily
find arms regardless. Nonetheless, a legislature might respond, we
want to make an effort to try to dry up that urban sea, drop by
drop. And none of the studies can show that effort is not
worthwhile.
In a word, the studies to which respondent’s
amici point raise policy-related questions. They succeed
in proving that the District’s predictive judgments are
controversial. But they do not by themselves show that those
judgments are incorrect; nor do they demonstrate a consensus,
academic or otherwise, supporting that conclusion.
Thus, it is not surprising that the District
and its
amici support the District’s handgun restriction
with studies of their own. One in particular suggests that,
statistically speaking, the District’s law has indeed had positive
life-saving effects. See Loftin, McDowall, Weirsema, & Cottey,
Effects of Restrictive Licensing of Handguns on Homicide and
Suicide in the District of Columbia, 325 New England J. Med. 1615
(1991) (hereinafter Loftin study). Others suggest that firearm
restrictions as a general matter reduce homicides, suicides, and
accidents in the home. See,
e.g., Duggan, More Guns, More
Crime, 109 J. Pol. Econ. 1086 (2001); Kellerman, Somes, Rivara,
Lee, & Banton, Injuries and Deaths Due to Firearms in the Home,
45 J. Trauma, Infection & Critical Care 263 (1998); Miller,
Azrael, & Hemenway, Household Firearm Ownership and Suicide
Rates in the United States, 13 Epidemiology 517 (2002). Still
others suggest that the defensive uses of handguns are not as great
in number as respondent’s
amici claim. See,
e.g.,
Brief for American Public Health Assn. et al. as
Amici
Curiae 17–19 (hereinafter APHA Brief) (citing studies).
Respondent and his
amici reply to
these responses; and in doing so, they seek to discredit as
methodologically flawed the studies and evidence relied upon by the
District. See,
e.g., Criminologists’ Brief 9–17, 20–24;
Brief for Assn. Am. Physicians and Surgeons, Inc. as
Amicus
Curiae 12–18; SLF Brief 17–22; Britt, Kleck, & Bordua, A
Reassessment of the D.C. Gun Law, 30 Law & Soc. Rev. 361 (1996)
(criticizing the Loftin study). And, of course, the District’s
amici produce counter-rejoinders, referring to articles
that defend their studies. See,
e.g., APHA Brief 23,
n. 5 (citing McDowall, Loftin, & Wiersema et al.,
Using Quasi-Experiments to Evaluate Firearm Laws, 30 Law & Soc.
Rev. 381 (1996)).
The upshot is a set of studies and
counterstudies that, at most, could leave a judge uncertain about
the proper policy conclusion. But from respondent’s perspective any
such uncertainty is not good enough. That is because legislators,
not judges, have primary responsibility for drawing policy
conclusions from empirical fact. And, given that constitutional
allocation of decisionmaking responsibility, the empirical evidence
presented here is sufficient to allow a judge to reach a firm
legal conclusion.
In particular this Court, in First Amendment
cases applying intermediate scrutiny, has said that our “sole
obligation” in reviewing a legislature’s “predictive judgments” is
“to assure that, in formulating its judgments,” the legislature
“has drawn reasonable inferences based on substantial evidence.”
Turner, 520 U. S., at 195 (internal quotation marks
omitted). And judges, looking at the evidence before us, should
agree that the District legislature’s predictive judgments satisfy
that legal standard. That is to say, the District’s judgment, while
open to question, is nevertheless supported by “substantial
evidence.”
There is no cause here to depart from the
standard set forth in
Turner, for the District’s decision
represents the kind of empirically based judgment that
legislatures, not courts, are best suited to make. See
Nixon, 528 U. S., at 402 (Breyer, J., concurring). In
fact, deference to legislative judgment seems particularly
appropriate here, where the judgment has been made by a local
legislature, with particular knowledge of local problems and
insight into appropriate local solutions. See
Los Angeles
v.
Alameda Books, Inc.,
535 U. S. 425, 440
(2002) (plurality opinion) (“[W]e must acknowledge that the Los
Angeles City Council is in a better position than the Judiciary to
gather an evaluate data on local problems”); cf. DC Rep., at 67
(statement of Rep. Gude) (describing District’s law as “a decision
made on the local level after extensive debate and deliberations”).
Different localities may seek to solve similar problems
in different ways, and a “city must be allowed a reasonable
opportunity to experiment with solutions to admittedly serious
problems.” Renton v. Playtime Theatres, Inc.,
475 U. S. 41, 52
(1986) (internal quotation marks omitted). “The Framers recognized
that the most effective democracy occurs at local levels of
government, where people with firsthand knowledge of local problems
have more ready access to public officials responsible for dealing
with them.” Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528, 575, n. 18 (1985)
(Powell, J., dissenting) (citing The Federalist No. 17, p. 107 (J.
Cooke ed. 1961) (A. Hamilton)). We owe that democratic process some
substantial weight in the constitutional calculus.
For these reasons, I conclude that
the District’s statute properly seeks to further the sort of
life-preserving and public-safety interests that the Court has
called “compelling.” Salerno, 481 U. S., at 750,
754.
B
I next assess the
extent to which the District’s law burdens the interests that the
Second Amendment seeks to protect. Respondent and his
amici, as well as the majority, suggest that those
interests include: (1) the preservation of a “well regulated
Militia”; (2) safeguarding the use of firearms for sporting
purposes, e.g., hunting and marksmanship; and (3) assuring
the use of firearms for self-defense. For argument’s sake, I shall
consider all three of those interests here.
1
The District’s
statute burdens the Amendment’s first and primary objective hardly
at all. As previously noted, there is general agreement among the
Members of the Court that the principal (if not the only) purpose
of the Second Amendment is found in the Amendment’s text: the
preservation of a “well regulated Militia.” See supra, at
3. What scant Court precedent there is on the Second Amendment
teaches that the Amendment was adopted “[w]ith obvious purpose to
assure the continuation and render possible the effectiveness of
[militia] forces” and “must be interpreted and applied with that
end in view.” Miller, 307 U. S., at 178. Where that end is
implicated only minimally (or not at all), there is substantially
less reason for constitutional concern. Compare ibid. (“In
the absence of any evidence tending to show that possession or use
of a ‘shotgun having a barrel of less than eighteen inches in
length’ at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot
say that the Second Amendment guarantees the right to keep and bear
such an instrument”).
To begin with, the
present case has nothing to do with actual military
service. The question presented presumes that respondent is
“not affiliated with any state-regulated militia.” 552 U.
S. __ (2007) (emphasis added). I am aware of no indication that the
District either now or in the recent past has called up its
citizenry to serve in a militia, that it has any inkling of doing
so anytime in the foreseeable future, or that this law must be
construed to prevent the use of handguns during legitimate militia
activities. Moreover, even if the District were to call up its
militia, respondent would not be among the citizens whose service
would be requested. The District does not consider him, at 66 years
of age, to be a member of its militia. See D. C. Code §49–401
(2001) (militia includes only male residents ages 18 to 45); App.
to Pet. for Cert. 120a (indicating respondent’s date of
birth).
Nonetheless, as some
amici claim, the statute might interfere with training in
the use of weapons, training useful for military purposes. The
19th-century constitutional scholar, Thomas Cooley, wrote that the
Second Amendment protects “learning to handle and use [arms] in a
way that makes those who keep them ready for their efficient use”
during militia service. General Principles of Constitutional Law
271 (1880); ante, at 45 (opinion of the Court); see also
ante, at 45–46 (citing other scholars agreeing with Cooley
on that point). And former military officers tell us that “private
ownership of firearms makes for a more effective fighting force”
because “[m]ilitary recruits with previous firearms experience and
training are generally better marksmen, and accordingly, better
soldiers.” Brief for Retired Military Officers as Amici
Curiae 1–2 (hereinafter Military Officers’ Brief). An
amicus brief filed by retired Army generals adds that a
“well-regulated militia—whether ad hoc or as part of
our organized military—depends on recruits who have familiarity and
training with firearms—rifles, pistols, and shotguns.” Brief for
Major General John D. Altenburg, Jr., et al. as Amici
Curiae 4 (hereinafter Generals’ Brief). Both briefs point out
the importance of handgun training. Military Officers’ Brief 26–28;
Generals’ Brief 4. Handguns are used in military service, see
id., at 26, and “civilians who are familiar with handgun
marksmanship and safety are much more likely to be able to safely
and accurately fire a rifle or other firearm with minimal training
upon entering military service,” id., at 28.
Regardless, to consider the
military-training objective a modern counterpart to a similar
militia-related colonial objective and to treat that objective as
falling within the Amendment’s primary purposes makes no difference
here. That is because the District’s law does not seriously affect
military training interests. The law permits residents to engage in
activities that will increase their familiarity with firearms. They
may register (and thus possess in their homes) weapons other than
handguns, such as rifles and shotguns. See D. C. Code §§7–2502.01,
7–2502.02(a) (only weapons that cannot be registered are sawed-off
shotguns, machine guns, short-barreled rifles, and pistols not
registered before 1976); compare Generals’ Brief 4 (listing
“rifles, pistols, and shotguns” as useful
military weapons; emphasis added). And they may operate those
weapons within the District “for lawful recreational purposes.”
§7–2507.02; see also §7–2502.01(b)(3) (nonresidents “participating
in any lawful recreational firearm-related activity in the
District, or on his way to or from such activity in another
jurisdiction” may carry even weapons not registered in the
District). These permissible recreations plainly include actually
using and firing the weapons, as evidenced by a specific D. C. Code
provision contemplating the existence of local firing ranges. See
§7–2507.03.
And while the District law
prevents citizens from training with handguns within the
District, the District consists of only 61.4 square miles of
urban area. See Dept. of Commerce, Bureau of Census, United States:
2000 (pt. 1), p. 11 (2002) (Table 8). The adjacent States do permit
the use of handguns for target practice, and those States are only
a brief subway ride away. See Md. Crim. Law Code Ann. §4–203(b)(4)
(Lexis Supp. 2007) (general handgun restriction does not apply to
“the wearing, carrying, or transporting by a person of a handgun
used in connection with,” inter alia, “a target shoot,
formal or informal target practice, sport shooting event, hunting,
[or] a Department of Natural Resources-sponsored firearms and
hunter safety class”); Va. Code Ann. §18.2–287.4 (Lexis Supp. 2007)
(general restriction on carrying certain loaded pistols in certain
public areas does not apply “to any person actually engaged in
lawful hunting or lawful recreational shooting activities at an
established shooting range or shooting contest”); Washington
Metropolitan Area Transit Authority, Metrorail System Map,
http://www.wmata.com/ metrorail/systemmmap.cfm.
Of course, a subway rider must buy
a ticket, and the ride takes time. It also costs money to store a
pistol, say, at a target range, outside the District. But given the
costs already associated with gun ownership and firearms training,
I cannot say that a subway ticket and a short subway ride (and
storage costs) create more than a minimal burden. Compare
Crawford v. Marion County Election Bd., 553 U. S.
___, ___ (2008) (slip op., at 3) (Breyer, J., dissenting)
(acknowledging travel burdens on indigent persons in the context of
voting where public transportation options were limited). Indeed,
respondent and two of his coplaintiffs below may well use handguns
outside the District on a regular basis, as their declarations
indicate that they keep such weapons stored there. See App. to Pet.
for Cert. 77a (respondent); see also id., at 78a, 84a
(coplaintiffs). I conclude that the District’s law burdens the
Second Amendment’s primary objective little, or not at
all.
2
The majority briefly
suggests that the “right to keep and bear Arms” might encompass an
interest in hunting. See, e.g., ante, at 26. But
in enacting the present provisions, the District sought “to take
nothing away from sportsmen.” DC Rep., at 33. And any
inability of District residents to hunt near where they live has
much to do with the jurisdiction’s exclusively urban character and
little to do with the District’s firearm laws. For reasons similar
to those I discussed in the preceding subsection—that the
District’s law does not prohibit possession of rifles or shotguns,
and the presence of opportunities for sporting activities in nearby
States—I reach a similar conclusion, namely, that the District’s
law burdens any sports-related or hunting-related objectives that
the Amendment may protect little, or not at all.
3
The District’s law
does prevent a resident from keeping a loaded handgun in his home.
And it consequently makes it more difficult for the householder to
use the handgun for self-defense in the home against intruders,
such as burglars. As the Court of Appeals noted, statistics suggest
that handguns are the most popular weapon for self defense. See 478
F. 3d, at 400 (citing Kleck & Gertz, 86 J. Crim. L. &
C., at 182–183). And there are some legitimate reasons why that
would be the case: Amici suggest (with some empirical
support) that handguns are easier to hold and control (particularly
for persons with physical infirmities), easier to carry, easier to
maneuver in enclosed spaces, and that a person using one will still
have a hand free to dial 911. See ILEETA Brief 37–39; NRA Brief
32–33; see also ante, at 57. But see Brief for Petitioners
54–55 (citing sources preferring shotguns and rifles to handguns
for purposes of self-defense). To that extent the law burdens to
some degree an interest in self-defense that for present purposes I
have assumed the Amendment seeks to further.
C
In weighing needs and
burdens, we must take account of the possibility that there are
reasonable, but less restrictive alternatives. Are there
other potential measures that might similarly promote the
same goals while imposing lesser restrictions? See Nixon,
528 U. S., at 402 (Breyer, J., concurring) (“existence of a clearly
superior, less restrictive alternative” can be a factor in
determining whether a law is constitutionally proportionate). Here
I see none.
The reason there is
no clearly superior, less restrictive alternative to the District’s
handgun ban is that the ban’s very objective is to reduce
significantly the number of handguns in the District, say, for
example, by allowing a law enforcement officer immediately to
assume that any handgun he sees is an illegal
handgun. And there is no plausible way to achieve that objective
other than to ban the guns.
It does not help respondent’s case
to describe the District’s objective more generally as an “effort
to diminish the dangers associated with guns.” That is because the
very attributes that make handguns particularly useful for
self-defense are also what make them particularly dangerous. That
they are easy to hold and control means that they are easier for
children to use. See Brief for American Academy of Pediatrics
et al. as Amici Curiae 19 (“[C]hildren as young as
three are able to pull the trigger of most handguns”). That they
are maneuverable and permit a free hand likely contributes to the
fact that they are by far the firearm of choice for crimes such as
rape and robbery. See Weapon Use and Violent Crime 2 (Table 2).
That they are small and light makes them easy to steal, see
supra, at 19, and concealable, cf. ante, at 54
(opinion of the Court) (suggesting that concealed-weapon bans are
constitutional).
This symmetry suggests that any
measure less restrictive in respect to the use of handguns for
self-defense will, to that same extent, prove less effective in
preventing the use of handguns for illicit purposes. If a resident
has a handgun in the home that he can use for self-defense, then he
has a handgun in the home that he can use to commit suicide or
engage in acts of domestic violence. See supra, at 18
(handguns prevalent in suicides); Brief for National Network to End
Domestic Violence et al. as Amici Curiae 27 (handguns
prevalent in domestic violence). If it is indeed the case, as the
District believes, that the number of guns contributes to the
number of gun-related crimes, accidents, and deaths, then, although
there may be less restrictive, less effective substitutes
for an outright ban, there is no less restrictive
equivalent of an outright ban.
Licensing restrictions would not
similarly reduce the handgun population, and the District may
reasonably fear that even if guns are initially restricted to
law-abiding citizens, they might be stolen and thereby placed in
the hands of criminals. See supra, at 19. Permitting
certain types of handguns, but not others, would affect the
commercial market for handguns, but not their availability. And
requiring safety devices such as trigger locks, or imposing
safe-storage requirements would interfere with any self-defense
interest while simultaneously leaving operable weapons in the hands
of owners (or others capable of acquiring the weapon and disabling
the safety device) who might use them for domestic violence or
other crimes.
The absence of equally effective
alternatives to a complete prohibition finds support in the
empirical fact that other States and urban centers prohibit
particular types of weapons. Chicago has a law very similar to the
District’s, and many of its suburbs also ban handgun possession
under most circumstances. See Chicago, Ill., Municipal Code
§§8–20–030(k), 8–20–40, 8–20–50(c) (2008); Evanston, Ill., City
Code §9–8–2 (2007); Morton Grove, Ill., Village Code §6–2–3(C)
(2008); Oak Park, Ill., Village Code §27–2–1 (2007); Winnetka,
Ill., Village Ordinance §9.12.020(B) (2008); Wilmette, Ill.,
Ordinance §12–24(b) (2008). Toledo bans certain types of handguns.
Toledo, Ohio, Municipal Code, ch. 549.25 (2007). And San Francisco
in 2005 enacted by popular referendum a ban on most handgun
possession by city residents; it has been precluded from enforcing
that prohibition, however, by state-court decisions deeming it
pre-empted by state law. See Fiscal v. City and County
of San Francisco, 158 Cal. App. 4th 895, 900–901, 70 Cal.
Rptr. 3d 324, 326–328 (2008). (Indeed, the fact that as many as 41
States may pre-empt local gun regulation suggests that the absence
of more regulation like the District’s may perhaps have more to do
with state law than with a lack of locally perceived need for them.
See Legal Community Against Violence, Regulating Guns in America 14
(2006), http://www.
lcav.org/Library/reports_analyses/National_Audit_Total_
8.16.06.pdf.
In addition, at least six States
and Puerto Rico impose general bans on certain types of weapons, in
particular assault weapons or semiautomatic weapons. See Cal. Penal
Code §12280(b) (West Supp. 2008); Conn. Gen. Stat. §§53–202c
(2007); Haw. Rev. Stat. §134–8 (1993); Md. Crim. Law Code Ann.
§4–303(a) (Lexis 2002); Mass. Gen. Laws, ch. 140, §131M (West
2006); N. Y. Penal Law Ann. §265.02(7) (West Supp. 2008); 25
Laws P. R. Ann. §456m (Supp. 2006); see also 18 U. S. C.
§922(o) (federal machinegun ban). And at least 14 municipalities do
the same. See Albany, N. Y., Municipal Code §193–16(A) (2005);
Aurora, Ill., Ordinance §29–49(a) (2007); Buffalo, N. Y., City
Code §180–1(F) (2000); Chicago, Ill., Municipal Code §8–24–025(a),
8–20–030(h); Cincinnati, Ohio, Admin. Code §708–37(a) (Supp. 2008);
Cleveland, Ohio, Ordinance §628.03(a) (2008); Columbus, Ohio, City
Code §2323.31 (2007); Denver, Colo., Municipal Code §38–130(e)
(2008); Morton Grove, Ill., Village Code §6–2–3(B);
N. Y. C. Admin. Code §10–303.1 (2007); Oak Park, Ill.,
Village Code §27–2-1; Rochester, N. Y., Code §47–5(f) (2008);
South Bend, Ind., Ordinance §§13–97(b), 13–98 (2008); Toledo, Ohio,
Municipal Code §549.23(a). These bans, too, suggest that there may
be no substitute to an outright prohibition in cases where a
governmental body has deemed a particular type of weapon especially
dangerous.
D
The upshot is that
the District’s objectives are compelling; its predictive judgments
as to its law’s tendency to achieve those objectives are adequately
supported; the law does impose a burden upon any self-defense
interest that the Amendment seeks to secure; and there is no clear
less restrictive alternative. I turn now to the final portion of
the “permissible regulation” question: Does the District’s law
disproportionately burden Amendment-protected interests?
Several considerations, taken together, convince me that it does
not.
First, the District
law is tailored to the life-threatening problems it attempts to
address. The law concerns one class of weapons, handguns, leaving
residents free to possess shotguns and rifles, along with
ammunition. The area that falls within its scope is totally urban.
Cf. Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 563
(2001) (varied effect of statewide speech restriction in “rural,
urban, or suburban” locales “demonstrates a lack of narrow
tailoring”). That urban area suffers from a serious
handgun-fatality problem. The District’s law directly aims at that
compelling problem. And there is no less restrictive way to achieve
the problem-related benefits that it seeks.
Second, the self-defense interest
in maintaining loaded handguns in the home to shoot intruders is
not the primary interest, but at most a subsidiary
interest, that the Second Amendment seeks to serve. The Second
Amendment’s language, while speaking of a “Militia,” says nothing
of “self-defense.” As Justice Stevens points out, the Second
Amendment’s drafting history shows that the language reflects the
Framers’ primary, if not exclusive, objective. See ante,
at 17–28 (dissenting opinion). And the majority itself says that
“the threat that the new Federal Government would destroy the
citizens’ militia by taking away their arms was the reason
that right . . . was codified in a written Constitution.”
Ante, at 26 (emphasis added). The way in which
the Amendment’s operative clause seeks to promote that interest—by
protecting a right “to keep and bear Arms”—may in fact
help further an interest in self-defense. But a factual connection
falls far short of a primary objective. The Amendment itself tells
us that militia preservation was first and foremost in the Framers’
minds. See Miller, 307 U. S., at 178 (“With obvious
purpose to assure the continuation and render possible the
effectiveness of [militia] forces the declaration and guarantee of
the Second Amendment were made,” and the amendment “must be
interpreted and applied with that end in view”).
Further, any self-defense interest
at the time of the Framing could not have focused exclusively upon
urban-crime related dangers. Two hundred years ago, most Americans,
many living on the frontier, would likely have thought of
self-defense primarily in terms of outbreaks of fighting with
Indian tribes, rebellions such as Shays’ Rebellion, marauders, and
crime-related dangers to travelers on the roads, on footpaths, or
along waterways. See Dept. of Commerce, Bureau of Census,
Population: 1790 to 1990 (1998) (Table 4), online at
http://www.census.gov/ population/censusdata/table-4.pdf (of the
3,929,214 Americans in 1790, only 201,655—about 5%—lived in urban
areas). Insofar as the Framers focused at all on the tiny fraction
of the population living in large cities, they would have been
aware that these city dwellers were subject to firearm restrictions
that their rural counterparts were not. See supra, at 4–7.
They are unlikely then to have thought of a right to keep loaded
handguns in homes to confront intruders in urban settings as
central. And the subsequent development of modern urban
police departments, by diminishing the need to keep loaded guns
nearby in case of intruders, would have moved any such right even
further away from the heart of the amendment’s more basic
protective ends. See, e.g., Sklansky, The Private Police,
46 UCLA L. Rev. 1165, 1206–1207 (1999) (professional urban
police departments did not develop until roughly the mid-19th
century).
Nor, for that matter, am I aware
of any evidence that handguns in particular were central
to the Framers’ conception of the Second Amendment. The lists of
militia-related weapons in the late 18th-century state statutes
appear primarily to refer to other sorts of weapons, muskets in
particular. See Miller, 307 U. S., at 180–182 (reproducing
colonial militia laws). Respondent points out in his brief that the
Federal Government and two States at the time of the founding had
enacted statutes that listed handguns as “acceptable” militia
weapons. Brief for Respondent 47. But these statutes apparently
found them “acceptable” only for certain special militiamen
(generally, certain soldiers on horseback), while requiring muskets
or rifles for the general infantry. See Act of May 8, 1792, ch.
XXXIII, 1 Stat. 271; Laws of the State of North Carolina 592
(1791); First Laws of the State of Connecticut 150 (1784); see also
25 Journals of the Continental Congress, pp. 1774–1789 741–742
(1922).
Third, irrespective of
what the Framers could have thought, we know what they
did think. Samuel Adams, who lived in Boston, advocated a
constitutional amendment that would have precluded the Constitution
from ever being “construed” to “prevent the people of the United
States, who are peaceable citizens, from keeping their own arms.” 6
Documentary History of the Ratification of the Constitution 1453
(J. Kaminski & G. Saladino eds. 2000). Samuel Adams doubtless
knew that the Massachusetts Constitution contained somewhat similar
protection. And he doubtless knew that Massachusetts law prohibited
Bostonians from keeping loaded guns in the house. So how could
Samuel Adams have advocated such protection unless he
thought that the protection was consistent with local
regulation that seriously impeded urban residents from using their
arms against intruders? It seems unlikely that he meant to deprive
the Federal Government of power (to enact Boston-type weapons
regulation) that he know Boston had and (as far as we know) he
would have thought constitutional under the Massachusetts
Constitution. Indeed, since the District of Columbia (the subject
of the Seat of Government Clause, U. S. Const., Art. I, §8,
cl. 17) was the only urban area under direct federal
control, it seems unlikely that the Framers thought about
urban gun control at all. Cf. Palmore v.
United States, 411 U. S. 389, 397–398
(1973) (Congress can “legislate for the District in a manner with
respect to subjects that would exceed its powers, or at least would
be very unusual, in the context of national legislation enacted
under other powers delegated to it”).
Of course the District’s law and
the colonial Boston law are not identical. But the Boston law
disabled an even wider class of weapons (indeed, all firearms). And
its existence shows at the least that local legislatures could
impose (as here) serious restrictions on the right to use firearms.
Moreover, as I have said, Boston’s law, though highly analogous to
the District’s, was not the only colonial law that could
have impeded a homeowner’s ability to shoot a burglar.
Pennsylvania’s and New York’s laws could well have had a similar
effect. See supra, at 6–7. And the Massachusetts and
Pennsylvania laws were not only thought consistent with an
unwritten common-law gun-possession right, but also
consistent with written state constitutional provisions
providing protections similar to those provided by the Federal
Second Amendment. See supra, at 6–7. I cannot agree with
the majority that these laws are largely uninformative because the
penalty for violating them was civil, rather than criminal.
Ante, at 61–62. The Court has long recognized that the
exercise of a constitutional right can be burdened by penalties far
short of jail time. See, e.g., Murdock v.
Pennsylvania, 319 U. S. 105 (1943)
(invalidating $7 per week solicitation fee as applied to religious
group); see also Forsyth County v. Nationalist
Movement, 505
U. S. 123, 136 (1992) (“A tax based on the content of speech
does not become more constitutional because it is a small
tax”).
Regardless, why would the majority
require a precise colonial regulatory analogue in order to save a
modern gun regulation from constitutional challenge? After all,
insofar as we look to history to discover how we can
constitutionally regulate a right to self-defense, we must look,
not to what 18th-century legislatures actually did enact,
but to what they would have thought they could enact.
There are innumerable policy-related reasons why a legislature
might not act on a particular matter, despite having the power to
do so. This Court has “frequently cautioned that it is at best
treacherous to find in congressional silence alone the adoption of
a controlling rule of law.” United States v.
Wells, 519
U. S. 482, 496 (1997). It is similarly “treacherous” to reason
from the fact that colonial legislatures did not enact
certain kinds of legislation an unalterable constitutional
limitation on the power of a modern legislature cannot do
so. The question should not be whether a modern restriction on a
right to self-defense duplicates a past one, but whether
that restriction, when compared with restrictions originally
thought possible, enjoys a similarly strong justification. At a
minimum that similarly strong justification is what the District’s
modern law, compared with Boston’s colonial law,
reveals.
Fourth, a contrary view, as
embodied in today’s decision, will have unfortunate consequences.
The decision will encourage legal challenges to gun regulation
throughout the Nation. Because it says little about the standards
used to evaluate regulatory decisions, it will leave the Nation
without clear standards for resolving those challenges. See
ante, at 54, and n. 26. And litigation over the course of
many years, or the mere specter of such litigation, threatens to
leave cities without effective protection against gun violence and
accidents during that time.
As important, the majority’s
decision threatens severely to limit the ability of more
knowledgeable, democratically elected officials to deal with
gun-related problems. The majority says that it leaves the District
“a variety of tools for combating” such problems. Ante, at
64. It fails to list even one seemingly adequate replacement for
the law it strikes down. I can understand how reasonable
individuals can disagree about the merits of strict gun control as
a crime-control measure, even in a totally urbanized area. But I
cannot understand how one can take from the elected branches of
government the right to decide whether to insist upon a
handgun-free urban populace in a city now facing a serious crime
problem and which, in the future, could well face environmental or
other emergencies that threaten the breakdown of law and
order.
V
The majority derides
my approach as “judge-empowering.” Ante, at 62. I take
this criticism seriously, but I do not think it accurate. As I have
previously explained, this is an approach that the Court has taken
in other areas of constitutional law. See supra, at 10–11.
Application of such an approach, of course, requires judgment, but
the very nature of the approach—requiring careful identification of
the relevant interests and evaluating the law’s effect upon
them—limits the judge’s choices; and the method’s necessary
transparency lays bare the judge’s reasoning for all to see and to
criticize.
The majority’s
methodology is, in my view, substantially less transparent than
mine. At a minimum, I find it difficult to understand the reasoning
that seems to underlie certain conclusions that it
reaches.
The majority spends the first 54
pages of its opinion attempting to rebut Justice Stevens’ evidence
that the Amendment was enacted with a purely militia-related
purpose. In the majority’s view, the Amendment also protects an
interest in armed personal self-defense, at least to some degree.
But the majority does not tell us precisely what that interest is.
“Putting all of [the Second Amendment’s] textual elements
together,” the majority says, “we find that they guarantee the
individual right to possess and carry weapons in case of
confrontation.” Ante, at 19. Then, three pages later, it
says that “we do not read the Second Amendment to permit citizens
to carry arms for any sort of confrontation.”
Ante, at 22. Yet, with one critical exception, it does not
explain which confrontations count. It simply leaves that question
unanswered.
The majority does, however, point
to one type of confrontation that counts, for it describes the
Amendment as “elevat[ing] above all other interests the right of
law-abiding, responsible citizens to use arms in defense of hearth
and home.” Ante, at 63. What is its basis for finding that
to be the core of the Second Amendment right? The only historical
sources identified by the majority that even appear to touch upon
that specific matter consist of an 1866 newspaper editorial
discussing the Freedmen’s Bureau Act, see ante, at 43, two
quotations from that 1866 Act’s legislative history, see
ante, at 43–44, and a 1980 state court opinion saying that
in colonial times the same were used to defend the home as to
maintain the militia, see ante, at 52. How can citations
such as these support the far-reaching proposition that the Second
Amendment’s primary concern is not its stated concern about the
militia, but rather a right to keep loaded weapons at one’s bedside
to shoot intruders?
Nor is it at all clear to me how
the majority decides which loaded “arms” a homeowner may
keep. The majority says that that Amendment protects those weapons
“typically possessed by law-abiding citizens for lawful purposes.”
Ante, at 53. This definition conveniently excludes
machineguns, but permits handguns, which the majority describes as
“the most popular weapon chosen by Americans for self-defense in
the home.” Ante, at 57; see also ante, at 54–55.
But what sense does this approach make? According to the majority’s
reasoning, if Congress and the States lift restrictions on the
possession and use of machineguns, and people buy machineguns to
protect their homes, the Court will have to reverse course and find
that the Second Amendment does, in fact, protect the
individual self-defense-related right to possess a machinegun. On
the majority’s reasoning, if tomorrow someone invents a
particularly useful, highly dangerous self-defense weapon, Congress
and the States had better ban it immediately, for once it becomes
popular Congress will no longer possess the constitutional
authority to do so. In essence, the majority determines what
regulations are permissible by looking to see what existing
regulations permit. There is no basis for believing that the
Framers intended such circular reasoning.
I am similarly puzzled by the
majority’s list, in Part III of its opinion, of provisions that in
its view would survive Second Amendment scrutiny. These consist of
(1) “prohibitions on carrying concealed weapons”; (2) “prohibitions
on the possession of firearms by felons”; (3) “prohibitions on the
possession of firearms by … the mentally ill”; (4) “laws forbidding
the carrying of firearms in sensitive places such as schools and
government buildings”; and (5) government “conditions and
qualifications” attached “to the commercial sale of arms.”
Ante, at 54. Why these? Is it that similar restrictions
existed in the late 18th century? The majority fails to cite any
colonial analogues. And even were it possible to find analogous
colonial laws in respect to all these restrictions, why should
these colonial laws count, while the Boston loaded-gun restriction
(along with the other laws I have identified) apparently does not
count? See supra, at 5–6, 38–39.
At the same time the majority
ignores a more important question: Given the purposes for which the
Framers enacted the Second Amendment, how should it be applied to
modern-day circumstances that they could not have anticipated?
Assume, for argument’s sake, that the Framers did intend the
Amendment to offer a degree of self-defense protection. Does that
mean that the Framers also intended to guarantee a right to possess
a loaded gun near swimming pools, parks, and playgrounds? That they
would not have cared about the children who might pick up a loaded
gun on their parents’ bedside table? That they (who certainly
showed concern for the risk of fire, see supra, at 5–7)
would have lacked concern for the risk of accidental deaths or
suicides that readily accessible loaded handguns in urban areas
might bring? Unless we believe that they intended future
generations to ignore such matters, answering questions such as the
questions in this case requires judgment—judicial judgment
exercised within a framework for constitutional analysis that
guides that judgment and which makes its exercise transparent. One
cannot answer those questions by combining inconclusive historical
research with judicial ipse dixit.
The argument about method,
however, is by far the less important argument surrounding today’s
decision. Far more important are the unfortunate consequences that
today’s decision is likely to spawn. Not least of these, as I have
said, is the fact that the decision threatens to throw into doubt
the constitutionality of gun laws throughout the United States. I
can find no sound legal basis for launching the courts on so
formidable and potentially dangerous a mission. In my view, there
simply is no untouchable constitutional right guaranteed by the
Second Amendment to keep loaded handguns in the house in
crime-ridden urban areas.
VI
For these reasons, I
conclude that the District’s measure is a proportionate, not a
disproportionate, response to the compelling concerns that led the
District to adopt it. And, for these reasons as well as the
independently sufficient reasons set forth by Justice Stevens, I
would find the District’s measure consistent with the Second
Amendment’s demands.
With respect, I
dissent.
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