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BookStudyVol.II: I. Incorporation and Interpretation of the Bill of Rights
Gideon v. Wainwright (1963)
http://www.oyez.org/cases/1960-1969/1962/1962_155
Mapp v. Ohio (1961)
http://www.oyez.org/cases/1960-1969/1960/1960_236
Griswold v. Connecticut (1965)
http://www.oyez.org/cases/1960-1969/1964/1964_496
Contemporary Interpretations of the Bill of Rights
District of Columbia v. Heller (2008)
http://www.oyez.org/cases/2000-2009/2007/2007_07_290
Gideon v. Wainwright (1963)
Facts of the case
Clarence Earl Gideon was charged in Florida state court with felony breaking and entering. When he appeared in court without a lawyer, Gideon requested that the court appoint one for him. According to Florida state law, however, an attorney may only be appointed to an indigent defendant in capital cases, so the trial court did not appoint one. Gideon represented himself in trial. He was found guilty and sentenced to five years in prison. Gideon filed a habeas corpus petition in the Florida Supreme Court, arguing that the trial court's decision violated his constitutional right to be represented by counsel. The Florida Supreme Court denied habeas corpus relief.
Question
Does the Sixth Amendment's right to counsel in criminal cases extend to felony defendants in state courts?
Conclusion
The Sixth Amendment's guarantee of a right to assistance of counsel applies to criminal defendants in state court by way of the Fourteenth Amendment.
In a unanimous opinion authored by Justice Hugo L. Black, the Court held that it was consistent with the Constitution to require state courts to appoint attorneys for defendants who could not afford to retain counsel on their own. The Court reasoned that the Sixth Amendment's guarantee of counsel is a fundamental and essential right made obligatory upon the states by the Fourteenth Amendment. The Sixth Amendment guarantees the accused the right to the assistance of counsel in all criminal prosecutions and requires courts to provide counsel for defendants unable to hire counsel unless the right was competently and intelligently waived.
Justice Douglas, while joining the Court's opinion, elaborated, in a separate opinion, the relation between the Bill of Rights and the first section of the Fourteenth Amendment.
Justices Clark and Harlan concurred in separate decisions.
사건의 사실 Clarence Earl Gideon은 플로리다 주 법원에서 중범죄 침입 및 침입 혐의로 기소되었습니다. 기드온은 변호사 없이 법정에 출두했을 때 법정에 변호사를 선임해 달라고 요청했습니다. 그러나 플로리다 주법에 따르면 변호사는 자본 사건에서 가난한 피고인에게만 선임될 수 있으므로 재판 법원은 변호사를 선임하지 않았습니다. 기드온은 재판에서 자신을 변호했습니다. 그는 유죄 판결을 받고 5 년 형을 선고 받았다. 기드온은 플로리다 대법원에 인신 보호 영장 청원서를 제출하여 재판 법원의 결정이 변호인이 대변할 수 있는 헌법상의 권리를 침해했다고 주장했습니다. 플로리다 대법원은 인신 보호 영장 구제를 거부했습니다.
질문 형사 사건에서 변호인에 대한 제 6 차 수정안의 권리는 주 법원의 중범 죄 피고인에게까지 확대됩니까?
결론 변호인의 조력에 대한 권리에 대한 제 6 차 수정안의 보장은 제 14 차 수정안을 통해 주 법원의 형사 피고인에게 적용됩니다. 휴고 L. 블랙 판사가 작성한 만장일치 의견서에서 대법원은 스스로 변호인을 선임할 여유가 없는 피고인을 위해 주 법원이 변호인을 선임하도록 요구하는 것이 헌법에 부합한다고 판결했습니다. 법원은 제 6 차 수정안의 변호인 보장이 제 14 차 수정안에 의해 주에 의무화 된 기본적이고 필수적인 권리라고 추론했습니다. 제6차 헌법 수정안은 피고인에게 모든 형사 기소에서 변호인의 조력을 받을 권리를 보장하고, 법원은 변호인을 선임할 수 없는 피고인에게 변호인을 제공할 것을 요구하고 있다. 더글라스 대법관은 대법원의 의견에 동참하면서 권리장전과 제14차 헌법 수정안의 제1절 사이의 관계를 별도의 의견으로 자세히 설명했다. 클라크 대법관과 할런 대법관은 별도의 결정에 동의했다.
Mapp v. Ohio (1961)
Facts of the case
Dollree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression.
Question
Were the confiscated materials protected from seizure by the Fourth Amendment?
Conclusion
In an opinion authored by Justice Tom C. Clark, the majority brushed aside First Amendment issues and declared that all evidence obtained by searches and seizures in violation of the Fourth Amendment is inadmissible in a state court. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule.
Justices Black and Douglas concurred.
Justice Stewart concurred in the judgment but agreed fully with Part I of Justice Harlan's dissent and expressed no view as to the merits of the constitutional issue.
Justice Harlan, joined by Justices Frankfurter and Whittaker, wrote a dissenting opinion.
사건의 사실 Dollree Mapp은 도망자를 찾기 위해 경찰이 그녀의 집을 불법적으로 수색한 후 음란물을 소지한 혐의로 유죄 판결을 받았습니다. 그녀는 표현의 자유를 근거로 유죄 판결에 항소했습니다.
질문 압수 된 자료는 제 4 차 수정안에 의해 압수로부터 보호 되었습니까?
결론 톰 C. 클라크 (Tom C. Clark) 판사가 작성한 의견서에서 대다수는 제 1 차 수정안 문제를 무시하고 제 4 차 수정안을 위반하여 수색 및 압수로 얻은 모든 증거는 주 법원에서 받아 들일 수 없다고 선언했습니다. 이 결정으로 법원은 배제 규칙을 언제 어떻게 적용할지 결정하는 데 어려움을 겪었습니다. 블랙 대법관과 더글라스 대법관도 이에 동의했다. 스튜어트 대법관은 판결에 동의했지만 할런 대법관의 반대 의견 중 제1부에 전적으로 동의했으며 헌법 문제의 장점에 대해서는 아무런 견해도 표명하지 않았습니다. 할런 대법관은 프랑크푸르터 대법관과 휘태커 대법관과 함께 반대 의견을 냈다.
Griswold v. Connecticut (1965)
Facts of the case
In 1879, Connecticut passed a law that banned the use of any drug, medical device, or other instrument in furthering contraception. A gynecologist at the Yale School of Medicine, C. Lee Buxton, opened a birth control clinic in New Haven in conjunction with Estelle Griswold, who was the head of Planned Parenthood in Connecticut. They were arrested and convicted of violating the law, and their convictions were affirmed by higher state courts. Their plan was to use the clinic to challenge the constitutionality of the statute under the Fourteenth Amendment before the Supreme Court.
Question
Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?
사건의 사실 1879년 코네티컷은 피임을 촉진하는 데 약물, 의료 기기 또는 기타 도구의 사용을 금지하는 법률을 통과시켰습니다. 예일 의과 대학의 산부인과 의사 인 C. Lee Buxton은 코네티컷의 Planned Parenthood 책임자 인 Estelle Griswold와 함께 뉴 헤이븐에 피임 클리닉을 열었습니다. 그들은 체포되어 법을 위반한 혐의로 유죄 판결을 받았으며, 그들의 유죄 판결은 고등 주 법원에서 확인되었습니다. 그들의 계획은 대법원에서 제 14 차 수정안에 따른 법령의 합헌성에 이의를 제기하기 위해 클리닉을 사용하는 것이 었습니다.
질문 헌법은 피임약 사용에 대한 상담을 받을 수 있는 부부의 능력에 대한 주정부의 제한으로부터 부부의 사생활의 권리를 보호합니까?
Conclusion
A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal.
In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception. While the Court explained that the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments create the right to privacy in marital relations. The Connecticut statute conflicted with the exercise of this right and was therefore held null and void.
Justice Goldberg, joined by Justices Warren and Brennan, concurred. Rather than finding that the right to privacy was contained in imaginary penumbras, Goldberg located it in the Ninth and Fourteenth Amendments.
Justice Harlan concurred, arguing that the Due Process Clause of the Fourteenth Amendment protects the right to privacy.
Justice White concurred, arguing that the Fourteenth Amendment was the proper basis for the decision.
Justice Black, joined by Justice Stewart, dissented. Unpersuaded by the loose reasoning of the majority, Black felt that there was no way to infer that the Constitution contained a right to privacy. He also dismissed the views of the concurrences that it could be found in the Ninth and Fourteenth Amendments.
Justice Stewart, joined by Justice Black, filed a separate dissenting opinion. Stewart argued that despite his personal view that the law was "uncommonly silly," he felt that the Court had no choice but to find it constitutional.
결론 사생활에 대한 권리는 권리 장전의 여러 개정안에서 유추 할 수 있으며,이 권리는 주정부가 결혼 한 부부의 피임 사용을 불법으로 만드는 것을 방지합니다.
Douglas 판사가 작성한 7-2 결정에서 법원은 헌법이 실제로 피임에 대한 주 정부의 제한으로부터 결혼 생활의 사생활을 보호할 권리를 보호했다고 판결했습니다. 대법원은 헌법이 사생활에 대한 일반적인 권리를 명시적으로 보호하지 않는다고 설명했지만, 권리장전 내의 다양한 보장은 사생활에 대한 권리를 설정하는 반감기 또는 구역을 만듭니다. 첫 번째, 세 번째, 네 번째 및 아홉 번째 수정안은 결혼 관계에서 사생활에 대한 권리를 창출합니다. 코네티컷 법령은 이 권리의 행사와 충돌하여 무효가 되었습니다. 골드버그 대법관은 워렌 대법관과 브레넌 대법관과 함께 이에 동의했다. 사생활에 대한 권리가 상상의 반감기에 포함되어 있다는 것을 발견하기보다는 Goldberg는 9 차 및 14 차 수정안에 그것을 배치했습니다. Harlan 판사는 제 14 차 수정안의 적법 절차 조항이 사생활에 대한 권리를 보호한다고 주장하면서 동의했습니다. 화이트 대법관은 제14차 헌법 수정안이 그 결정의 적절한 근거라고 주장하면서 이에 동의했다. 블랙 대법관과 스튜어트 대법관은 반대 의견을 냈다. 대다수의 느슨한 추론에 설득되지 않은 블랙은 헌법에 사생활에 대한 권리가 포함되어 있다고 추론할 방법이 없다고 느꼈습니다. 그는 또한 제 9 차 및 제 14 차 수정안에서 발견 될 수있는 동의의 견해를 기각했다. 스튜어트 대법관은 블랙 대법관과 함께 별도의 반대 의견을 제출했다. 스튜어트는 그 법이 "비정상적으로 어리석다"는 개인적인 견해에도 불구하고 법원이 합헌이라고 판결할 수밖에 없다고 느꼈다고 주장했다.
Contemporary Interpretations of the Bill of Rights
District of Columbia v. Heller (2008)
Facts of the case
Provisions of the District of Columbia Code made it illegal to carry an unregistered firearm and prohibited the registration of handguns, though the chief of police could issue one-year licenses for handguns. The Code also contained provisions that required owners of lawfully registered firearms to keep them unloaded and disassembled or bound by a trigger lock or other similar device unless the firearms were located in a place of business or being used for legal recreational activities.
Dick Anthony Heller was a D.C. special police officer who was authorized to carry a handgun while on duty. He applied for a one-year license for a handgun he wished to keep at home, but his application was denied. Heller sued the District of Columbia. He sought an injunction against the enforcement of the relevant parts of the Code and argued that they violated his Second Amendment right to keep a functional firearm in his home without a license. The district court dismissed the complaint. The U.S. Court of Appeals for the District of Columbia Circuit reversed and held that the Second Amendment protects the right to keep firearms in the home for the purpose of self-defense, and the District of Columbia’s requirement that firearms kept in the home be nonfunctional violated that right.
Question
Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms kept in the home to be kept nonfunctional violate the Second Amendment?
사건의 사실 컬럼비아 특별구 법의 조항은 등록되지 않은 총기를 휴대하는 것을 불법으로 규정하고 권총 등록을 금지했지만 경찰서장은 권총에 대해 1년 면허를 발급할 수 있었습니다. 이 강령에는 또한 합법적으로 등록된 총기의 소유자가 총기가 사업장에 있거나 합법적인 레크리에이션 활동에 사용되지 않는 한 방아쇠 잠금 장치 또는 기타 유사한 장치로 장전 및 분해 또는 묶인 상태로 유지하도록 요구하는 조항이 포함되어 있습니다. 딕 앤서니 헬러(Dick Anthony Heller)는 근무 중 권총을 휴대할 수 있는 권한이 있는 DC 특수 경찰관이었습니다. 그는 집에 보관하고 싶은 권총에 대해 1년 면허를 신청했지만 신청이 거부되었습니다. 헬러는 컬럼비아 특별구를 고소했다. 그는 강령의 관련 부분의 집행에 대한 금지 명령을 구하고 면허없이 집에 기능성 총기를 보관할 수있는 제 2 차 수정안의 권리를 침해했다고 주장했다. 지방 법원은 고소를 기각했습니다. 컬럼비아 특별구 순회 항소 법원은 제 2 차 수정안이 자기 방어를 목적으로 총기를 집에 보관할 권리를 보호한다고 판결했으며, 집에 보관 된 총기가 작동하지 않아야한다는 컬럼비아 특별구의 요구 사항은 그 권리를 침해했습니다.
질문 권총의 면허를 제한하고 집에 보관 된 허가 된 총기를 작동하지 않는 상태로 유지하도록 요구하는 컬럼비아 특별구 법의 조항이 제 2 차 수정안을 위반합니까?
Conclusion
The ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism violate the Second Amendment. Justice Antonin Scalia delivered the opinion for the 5-4 majority. The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term “militia” should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.” This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.
권총 등록 금지와 방아쇠 잠금 장치로 집에서 총을 분해하거나 작동하지 않는 상태로 유지해야한다는 요구 사항은 제 2 차 수정안을 위반합니다. 안토닌 스칼리아 대법관은 5-4 다수결로 의견을 전달했습니다. 법원은 "민병대"를 언급하는 제 2 차 수정안의 첫 번째 조항이 수정안의 작동 조항을 제한하지 않는 전제 조항이라고 판결했다. 그에 더하여, "민병대"라는 용어는 군 복무를 하는 사람들에게만 국한되어서는 안 되었는데, 그 당시에는 그 용어가 그러한 복무를 할 수 있는 모든 건장한 남자들을 지칭하였기 때문입니다. 수정안을 통치 중인 군대에 속한 사람들에게만 무기를 소지할 수 있는 권리를 제한하는 것으로 읽는 것은 수정안이 사람들을 보호하기 위해 의도한 국가 후원 군대의 유형을 정확히 만드는 것입니다. 수정안의 본문은 작성 당시의 명백한 의미에 가장 큰 영향을 미치는 방식으로 해석되어야 하기 때문에 작동 조항은 "대결 시 무기를 소지하고 휴대할 수 있는 개인의 권리를 보장"하는 것으로 해석되어야 합니다. 이 독서는 또한 당시의 법적 저술 및 후속 학문과 일치합니다. 따라서 보호 목적으로 일반적으로 사용되는 모든 종류의 무기 인 권총을 금지하고 전통적으로 보호가 필요한 지역 인 가정에서 총기가 기능을 유지하는 것을 금지하는 것은 제 2 차 수정안을 위반합니다.
In his dissent, Justice John Paul Stevens wrote that the Second Amendment does not create an unlimited right to possess guns for self-defense purposes. Instead, the most natural reading of the the Amendment is that it protects the right to keep and bear arms for certain military purposes but does not curtail the legislature’s power to regulate nonmilitary use and ownership of weapons. Justice Stevens argued that the Amendment states its purpose specifically in relation to state militias and does not address the right to use firearms in self-defense, which is particularly striking in light of similar state provisions from the same time that do so. Justice Stevens also notes that “the people” does not enlarge the protected group beyond the context of service in a state-regulated militia. This reading is in line with legal writing of the time that contextualizes the Amendment in relation to state militias and post-enactment legislative history. Justices David Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined in the dissent. Justice Breyer also wrote a separate dissent in which he argued that the Second Amendment protects militia-related, not self-defense-related, interests, and it does not provide absolute protection from government intervention in these interests. Historical evidence from the time of ratification indicates that colonial laws regulated the storage and use of firearms in the home. Justice Breyer argued that the Court should adopt an interest-balancing test to determine when the government interests were sufficiently weighty to justify the proposed regulation. In this case, because the interest-balancing turns on the type of analysis that the legislature, not the court, is best positioned to make, the Court should defer to the legislature and uphold the restrictions. Justices Stevens, Souter, and Ginsburg joined in the dissent.
존 폴 스티븐스 (John Paul Stevens) 판사는 반대 의견에서 제 2 차 수정안이 자기 방어 목적으로 총을 소유 할 수있는 무제한의 권리를 창출하지 않는다고 썼다. 대신, 수정안의 가장 자연스러운 해석은 특정 군사 목적을 위해 무기를 보유하고 소지할 권리를 보호하지만 무기의 비군사적 사용 및 소유를 규제하는 입법부의 권한을 축소하지 않는다는 것입니다. 스티븐스 대법관은 수정안이 주 민병대와 관련하여 그 목적을 구체적으로 명시하고 자기 방어를 위해 총기를 사용할 권리를 다루지 않는다고 주장했는데, 이는 같은 시기의 유사한 주 조항에 비추어 볼 때 특히 두드러집니다. 스티븐스 대법관은 또한 "국민"이 국가가 규제하는 민병대에서 복무하는 맥락을 넘어 보호 집단을 확대하지 않는다고 지적합니다. 이 독서는 주 민병대 및 제정 후 입법 역사와 관련하여 수정안을 맥락화하는 당시의 법적 문서와 일치합니다. 데이비드 수터(David Souter), 루스 베이더 긴즈버그(Ruth Bader Ginsburg), 스티븐 G. 브라이어(Stephen G. Breyer) 대법관도 반대 의견에 동참했다. Breyer 판사는 또한 제 2 차 수정안이 자기 방위와 관련된 것이 아니라 민병대와 관련된 이익을 보호하며 이러한 이익에 대한 정부의 개입으로부터 절대적인 보호를 제공하지 않는다고 주장하는 별도의 반대 의견을 썼습니다. 비준 당시의 역사적 증거에 따르면 식민 법은 가정에서 총기의 보관 및 사용을 규제했습니다. Breyer 판사는 법원이 제안된 규정을 정당화할 만큼 정부의 이익이 충분히 중요한지 결정하기 위해 이익 균형 테스트를 채택해야 한다고 주장했습니다. 이 경우 이익 균형은 법원이 아닌 입법부가 가장 잘 할 수 있는 분석 유형에 영향을 미치기 때문에 법원은 입법부에 맡기고 제한을 유지해야 합니다. 스티븐스(Stevens), 수터(Souter), 긴즈버그(Ginsburg) 대법관도 반대 의견에 동참했다.
District of Columbia v. Heller
Opinion Announcement - June 26, 2008
John G. Roberts, Jr.
Justice Scalia also has our opinion this morning in case 07-290, District of Columbia versus Heller.
Antonin Scalia
If you can bear with me, I -- I can do it.
This case is hereon writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm, prohibiting the registration of handguns and providing separately that no person may carry a handgun not licensed by the chief of police who was authorized to issue one year licenses.
In addition, it requires residents to keep lawfully owned firearms which would include long guns, unloaded and dissembled or bound by a trigger lock or similar device.
Respondent Heller, a D.C. special policeman, applied to register a handgun he wished to keep at home, but the District refused.
He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the ban on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home.
The District Court dismissed the suit, but the United States Court of Appeals for the District of Columbia Circuit reversed, holding that the Second Amendment protects an individual's right to posses firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self defense, violated this right.
The Court of Appeals directed the District Court to enter summary judgment for respondent.
In an opinion filed with the clerk today, we affirm the judgment of the District of Columbia Circuit.
We hold that the Second Amendment guarantees an individual right to have unused arms for self defense in the home and that the District's handgun ban as well as its requirement that firearms in the home be rendered inoperative, violates that right.
Our opinion is very lengthy examining in detail, the text and history of the Second Amendment.
This summary that I'm giving will state little more than the conclusions.
If you want to check their validity against the dissents' contrary claims, you will have to read some 154 pages of opinions.
The Second Amendment provides "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.”
The interpretive difficulty and what causes some people to think that it confers only a collective, rather than an individual right, and others including the petitioners here to think that it isn't individual right but only to keep and bear arms for service in a militia.
The interpretive difficulty that produces those positions is of course the prologue, a well regulated militia being necessary to the security of a free State.
It's a standard principle of interpretation and was in 1791 that a prologue cannot limit the scope of the operative text which often goes beyond the narrow purpose set forth in a prologue.
It would be peculiar, however, for the prologue positively to contradict the text.
So, we examine first the operative portion of the amendment, namely, the right of the people to keep and bear arms shall not be infringed.
We conclude after examining many uses of keep arms and bear arms, contemporaneous with and prior to the adoption of the Second Amendment that it means pretty much what it means today to have and carry weapons.
Those old sources refute the notion that bear arms alone or keep in bear arms in combination has an exclusively military connotation.
To be sure when one was a soldier, he bore arms, but one could bear arms without being a soldier.
The same conclusion that the phrase does not refer to military service is demanded by the fact that it was universally understood that the Second Amendment incorporated in to the Federal Constitution, a preexisting right of Englishman set forth in the 1689 English Bill of Rights, that's why it reads shall not be infringed, the right shall not be infringed, referring to a preexisting right and everybody agrees with that.
There is no doubt that the English right was an individual right to have and carry arms.
We then turn to the prologue to see if it is incompatible with the interpretation we have given the operative clause, it is not.
In fact, that interpretation that she is the object of the prologue more effectively than would a mere right to have and bear arms in an organized militia.
The militia consisted of all male citizens capable of military service.
That was thought to be a protection against, not only attack from abroad, but tyranny at home.
In the events that had given rise to the English Bill of Rights, the Stuart Kings had not abolished the people's militia, but had simply taken away the people's arms or the arms of their opponents, leaving in place only a standing army and a select militia dominated by their own supporters.
The lesson learned, if the people cannot have arms, there will be no people's militia.
That perception is what joins the two part of -- the two parts of the Second Amendment.
The mere right to keep and bear arms in a State organized militia does not solve the problem because of the state court like the Stuart Kings limit the organized militia to its own people.
So, what the Second Amendment means is since we need a people's militia, the people will not be deprived of the right to keep and bear arms.
This interpretation is confirmed by analogous arms bearing rights in state constitutions that preceeded and immediately followed the adoption of the Second Amendment.
Of the four States that had analogues to the Federal Second Amendment before the Constitution was ratified, two clearly conferred individual rights unconnected to militia service specifying the people's right to bear arms for their own defense and the most likely reading is that the other two also secured an individual right to bear arms for defensive purposes.
Similarly of the nine States -- of the nine State analogues to the Second Amendment that were adopted between 1789 and 1820, seven referred to the people's right to bear arms in defense of themselves and the State or to the citizens right to bear arms in defense of himself and the State.
The final two of those nine -- of those nine were ambiguous but were interpreted by the state courts to confer an individual right to bear arms for lawful purposes.
Our opinion then looks at legal interpretations of the Second Amendment from immediately after its ratification through the 19th Century.
We find that that scholars, including the most famous ones, Tucker, Rolls, Storey and Cooley, the adjudicated cases, congressional legislation and the statements of congressional legislators, universally, took the right to be a personal one unconnected to militia service.
The one exception is a minor scholar who acknowledged that his view had been rejected.
As one might expect, after the civil war, the right of the former slaves, a new freemen to bear arms was a significant issue.
Let me read from a joint congressional report dated 1866.
In some parts of South Carolina, armed parties are without proper authority, engaged in seizing all firearms found in the hands of freemen.
Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States which declares that the right of the people to keep and bear arms shall not be infringed.
The congressional act creating the Freedmen's Bureau on July 16, 1866 stated the right to have full and equal benefit of all laws in proceedings concerning personal liberty and personal security including the constitutional right to bear arms shall be secured to and enjoyed by all the citizens without respect to race or color or previous condition of slavery.
It was good to have a gun when -- when the clansmen came.
Our opinion next turns to whether any prior decisions of this Court preclude the interpretation we have just described.
We conclude that none does.
I will only describe one of those cases on which the dissent places its principle reliance and that is our decision in United States versus Miller rendered in 1939.
The judgment in that case upheld against a Second Amendment challenge, two men's federal convictions for transporting an unregistered sawed off shut gun in interstate commerce in violation of the National Firearms Act.
It is entirely clear that the Court's basis for saying that the Second Amendment did not prevent the conviction was not that the defendants were bearing arms privately rather than in a militia, rather it was that the type of weapon that issued was not illegible for Second Amendment protection.
"In the absence of any evidence tending to show that the possession or use of a short barreled shotgun 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."
Certainly, the Court continued, “It is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."
Beyond that, the opinion provided no explanation of the content of the right to keep and bear arms.
This holding is not only consistent with but positively suggests that the Second Amendment confers a right to keep and bear arms for lawful private purposes.
Had the Court believed that the Second Amendment protects only those service -- those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militia men.
Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.
It is particularly wrong headed to read Miller for more than what it said because the case did not even purport to be a thorough examination of the Second Amendment.
The respondent made no appearance in the case, neither filing a brief nor appearing at oral argument, the Court heard from no one but the Government, reason enough, one would think not to make that case the beginning and the end of this Court's consideration of the Second Amendment.
The Government's Miller brief provided scant discussion of the history of the Second Amendment and the Court was presented with no counter discussion.
As for the text of the Court's opinion, that -- as for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment.
It assumes from the prologue that the amendment was designed to preserve the militia which we do not dispute and then we view some historical materials dealing with the nature of the militia and in particular with the nature of the arms their members were expected to posses, not a word, not a word about the history of the Second Amendment.
The next section of our opinion points out that like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever, in any manner whatsoever, and for whatever purpose.
For example, concealed weapons prohibitions have been upheld under the amendment or state analogues.
Our opinion should not be taken to cast doubt on long standing prohibitions on the possession of firearms by felons and the mentally ill or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Miller is holding that the sorts of weapons protected are those "in common use of the time," finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
We make no attempt to provide and no excuse for not providing extensive historical justification for those regulations of the right that we describe as permissible since this case represents the Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.
There will be time enough to expound upon the historical justifications for these exceptions we have mentioned if and when those exceptions come before us.
Finally, we come to our disposition of the case, the District's handgun ban and the trigger lock requirement, at least as applied to immediate self defense which is all that the respondent asked for, violates the Second Amendment.
The District's total ban on handgun possession in the home amounts to prohibition all of -- of an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self defense.
Under any of the standards of scrutiny, the Court has applied to enumerated constitutional rights, this prohibition in the place where the need for lawful defense of self, family and property is most acute would fail constitutional muster.
Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self defense and is hence unconstitutional, because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for reliefs -- for relief and so we do not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment rights by being a felon or mentally ill for example, the District must permit Heller to register his handgun and must issue him a license to carry it at home.
We are aware of the problem of handgun violence in this country and we take seriously the concerns raised by the many Amici who believe that prohibition of handgun ownership is a solution.
The Constitution leaves the District of Columbia a variety of tools for combating that problem including some measures regulating handguns, but the Second Amendment necessarily takes certain policy choices off the table.
These include the absolute prohibition of handguns held and used for self defense in the home.
Undoubtedly, some think that the Second Amendment is outmoded in a society where our standing armies in pride of our nation where a well-trained police forces provide personal security and where a gun violence is a serious problem, that is perhaps debatable.
But what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
The judgment of the Court of Appeals is affirmed.
Justice Stevens has filed the dissenting opinion in which Justices Souter, Ginsberg and Breyer have joined.
Justice Breyer has filed a dissenting opinion in which Justices Stevens, Souter and Ginsberg have joined.
John Paul Stevens
The two dissenting opinions that Justice Breyer and I have filed set forth independent reasons for concluding that the Court is quite wrong today.
The fact that individuals may enforce the right protected by the Second Amendment tells us nothing about the scope of the right.
Guns are used to hunt, for self defense, to commit crimes, for sporting activities and to perform military duties.
The Second Amendment plainly does not protect the right to use a gun to rob a bank.
It is equally clear that it does encompass the right to use weapons for certain military purposes, Whether it also protects the right to -- to posses and use guns for non-military purposes like hunting and personal self defense is the question presented by this case.
Rather than attempt to summarize my lengthy opinion, I shall merely identify eight reasons why most judges would endorse the narrower, militia related reading of the amendment.
First, it is the most natural reading of the 27-word text.
That text protects the right to keep and bear arms and makes no mention of any non-military use of a firearm.
It protects the preexisting right to use guns by members of a militia.
The centerpiece of the Court's analysis of the text today is its assumption that the words "the people" describe the same class of persons as those words described in the First and Fourth Amendments, all members of the political community, not in unspecified subset like just the militia.
But it is well established that the people protected by the First Amendment and the Fourth Amendment include convicted felons and mentally incompetent persons and many that are not capable of handling firearms.
The Court assures us, however, that law abiding and responsible citizens are the only subset of people entitled to bear arms.
But that assurance which comes at the end of the opinion totally eviscerates the basis for the Court's elaborate attempt to justify its claim that the text means more than it says and serves a purpose far broader than that identified in its preamble.
Second, if the text were ambiguous and the long discussion of language in the Court's opinion may support its clearer that it is ambiguous at the very least, I don't think it is ambiguous, but if it were, the clear statement of purpose in its preamble would provide the basis for -- for resolving any ambiguity.
The preamble clearly contemplates the use of arms in a militia.
Third, the principle draftsman of the amendment, James Madison, not man who wrote generations later and commentators and so, James Madison and those who participated in the deliberations leading to the enactment of the amendment considered and rejected proposal similar to those contained in some contemporary State Constitutions which the majority opinion quotes at length which would have protected none military uses of weapons.
Thus a fair analysis of the original intent of the framers of the amendment supports a narrower reading.
Fourth, it is the reading that this Court adopted in 1939 in Miller, an unanimous opinion which speaks for itself, do not accept the summary of the opinion you have just heard.
For example, the concern about only one party participating in the argument was also true of Marbury against Madison, a case which should not be ignored just for that reason.
The word stare decisis which do not appear in the majority opinion today would normally compel -- would normally counsel adherence to settled law.
Fifth, no previously unavailable historical evidence has surfaced since the 1939 when Miller was described the decided nor does the Court rely on any such evidence as a basis for distinguishing Miller in making a new law and is making a new law today.
Sixth, not only hundreds of federal judges but also countless legislatures have relied on the view endorsed in Miller, the view was perfectly clear to them.
Seventh, regulation of the civilian use of firearms raises complex and critically important questions of public policy that have heretofore and resolve exclusively by the political branches of our Government, this Court should stay out of that political thicket.
Eighth, the chasm between the Court's rather grandiose and detailed analysis and its narrow holding demonstrates that this is just the first in the series of decisions that the Court will be required to make in order to define the dimensions of its newly discovered right.
The Courts claim that the amendment was a codification of a common law rule, not mentioned any memo is fully consistent with an expectation that its dimensions, the dimensions of the rule must be determined by the process of common law, case-by-case adjudication.
Unlike other common law rules, however, and especially those fashioned in England and particularly the English Bill of Rights Rule, this rule is not subject to amendment by the legislature.
Justice Breyer's separate dissent an opinion explains why at a minimum the District of Columbia's laws amount to reasonable and appropriate regulation consistent with the Second Amendment.
He explains that there is no sound basis -- sound legal basis for launching the Courts on the formidable and perilous mission began today.
In our view, there is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in urban areas.
It was only a few years after the decision in Miller that Justice Frankfurter wrote his famous opinion, warning of the perils of this Court's into a -- entry into a political thicket.
The political thicket that the Court has decided to enter today is different from but no less controversial than the one that concerned Justice Frankfurter, a genuine judicial conservative.
What impact the Court's totally unnecessary entry into this attainable will have on the ongoing debate between the advocates and opponents of gun control and indeed, on this Court's role as a guardian of the rule of law in a matter that will be debated by future historians at length.
It is, however, clear to us that adherence through a policy of judicial restraint would be far wiser than the bold decision announced today.
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