CHAPTER 3
GUN RIGHTS AND DISTRICT OF COLUMBIA V. HELLER
The First Amendment is first in our Bill of Rights, but it is not complicated arithmetic to observe that the Second Amendment comes second. The Framers of our Constitution created a Bill of Rights to protect the most important individual liberties we enjoy as Americans. And the right of the people to keep and bear arms was, and is, as former Supreme Court Justice Joseph Story once put it, the “palladium of the liberties of a republic.”
Much that can be said about the natural right to religious liberty can also be said about the natural right to self-defense. Just as there can be no true political liberty without a robust protection of religious liberty under the rule of law, so too can there be no true political liberty without a robust protection of the right to self-defense under the rule of law. Social stability and human flourishing require the right to bear arms just as they require the right to worship.
Importantly, the Second Amendment is not about hunting. Nor is it about skeet shooting, target shooting, or other leisure activities. Rather, the Framers of the Second Amendment put that provision in the Bill of Rights to protect our lives, to protect our homes, and to protect our families. It is about the right we have, if somebody comes into our home at night to harm our children, to defend our children and to defend our lives. It is about the right we have, as God-fearing, law-abiding, conscientious, armed citizens, to hold government accountable to “We the People of the United States”—who, in our system of governance, are the ultimate sovereigns.
From time immemorial, tyrants have sought to consolidate power by robbing a free people of their ability to properly defend themselves and their families. America’s Founding Fathers were well aware of this sad and sorry history. As a result, they sought to preclude the citizens of the country they were birthing from ever having to worry about their right to self-defense—whether that right applies against a petty thief or a tyrannical government.
“No free man, shall ever be debarred the use of arms,” Thomas Jefferson wrote in an early draft of the Virginia Constitution. “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them,” Richard Henry Lee wrote at the time. Perhaps most direct and to the point was Jefferson and Lee’s Liberty-loving fellow Virginian, George Mason, who said around the time of the Constitution’s ratification debates that “to disarm the people… is the most effectual way to enslave them.”
The Constitution’s Framers, prescient as they were, were meticulous in trying to ensure that Americans would forever remain a free people. They were adamant that Americans would always prize their Liberty. And they were passionate about securing Americans’ right to self-defense so that we would never find ourselves subjugated by the rise of a would-be despot.
Ultimately, the Framers of the Bill of Rights chose to codify the natural right to self-defense in clear and unmistakable constitutional language: “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.”
Or at least most readers would normally find that to be clear and unmistakable language. By its express terms, it protects your and my right “to keep and bear Arms,” which it demands “shall not be infringed.”
Yet for over two centuries after the Bill of Rights was ratified, the Supreme Court never affirmed that the Second Amendment means what it so plainly says. Amazingly, it wasn’t until just twelve years ago that the Supreme Court did precisely that in the landmark case of District of Columbia v. Heller. It was a case that I helped litigate, and it is a case that highlights just how far the radical left would go to destroy the Second Amendment if it were to regain control of the Supreme Court ever again.
It is now time to tell that tale.
As a political matter, not too long ago there was remarkable bipartisan agreement on at least the stated importance of protecting the Second Amendment. Outside of court rulings, both Democrats and Republicans routinely pledged to defend the Second Amendment as a matter of principle. Not everybody meant it, but they at least paid lip service to the Second Amendment, even if they strongly disagreed on specific legislative proposals and whether those proposals were consistent or inconsistent with the right protected in the Bill of Rights.
In the past two decades, that has changed. Today, the position of elected Democrats (and most of their judicial nominees) is much more radical.
Reasonable minds can differ on whether gun control measures are good policy. Many believe passionately that they are, and many others believe just as passionately that they are not. Likewise, reasonable minds could differ as to which measures are permissible under the Second Amendment. But today’s elected Democrats maintain that every conceivable restriction—including total and complete prohibition—is permissible under the Second Amendment. Heller powerfully illustrated the breadth and audacity of the modern Democratic position.
Dick Anthony Heller was a federal police officer who lived in Washington, D.C. He carried a firearm at work, but D.C. laws, among the most draconian in the country, made it functionally illegal for him to carry a gun at his home. The D.C. laws prohibited the private possession of any and all handguns, and they required that all long guns (shotguns and rifles) be kept “unloaded and disassembled or bound by a trigger lock or similar device” at all times, with no exceptions (even to defend against imminent threat of violence). In practice, this meant that neither handguns nor long guns could ever be used for home protection or self-defense in the nation’s capital.
Dick Heller brought a challenge against
