Fanning the Flames: The Freedom Project Blog


From My Cold, Dead Hands...

By Shawn Healy
The words of former National Rifle Association President Charlton Heston.

This spring the U.S. Supreme Court will consider the utility of the argument that non-state militias members have an individual right to keep and bear arms. At issue is a District of Columbia ordinance that prohibits private handgun ownership. The D.C. Court of Appeals ruled in March that the 31-year old ordinance was unconstitutional because it infringed on the individual right to keep and bear arms. The 2-1 ruling did permit less restrictive gun control measures, but the decision stands counter to the age-old collective rights interpretation of the amendment.

Let's parse the prospects of the Supreme Court's ultimate decision due next June. Revisiting the text of the Second Amendment is an ideal starting point. It reads, "A well regulated militia, being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed."

The introductory clause refers to the state militias that existed during the nation's founding period for fear of a permanent standing army. Many states required citizens to own guns for the purposes of national defense as threats emerged. Given the size and strength of today's U.S. Armed Forces, such a notion is indisputably outdated. As a result, some suggest that gun ownership should be permitted only to members of the state national guards.

On the other hand, the second clause does reference the people's right to keep and bear arms, thus the emergence of claims suggesting an individual right. Moreover, gun ownership was and is justified by some as the citizenry's ultimate recourse against a corrupt government. After all, it was guns propelled a revolution against the British Crown.

To date, the Supreme Court has only acknowledged a collective right. This precedent is extrapolated from a 1939 case upholding a federal law requiring the registration of sawed-off shotguns. Separate 2001 and the aforementioned 2007 appellate court decisions contest this notion, suggesting an individual right.

The facts of this case are most interesting because the District of Columbia is not a state. The Second Amendment is one of the few provisions of the Bill of Rights to never be incorporated, meaning it does not apply to state laws and local ordinances. A decision to uphold the DC decision thus would not likely result in incorporation, at least not immediately.

The question the Court is considering reads as follows: Does the statute “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.” An affirmative answer would be applied rather narrowly to the District given its governance by Congress, but would seemingly open the door for challenges to similar ordinances like that employed in Chicago since 1983.

If an individual right to keep and bear arms does exist, then why is the Second Amendment not incorporated alongside other individual rights specified and those not enumerated (example: privacy) in the Bill of Rights? If incorporated, Chicago's ordinance would predictably be deemed unconstitutional, along with others enacted by municipalities across the country.

Not one of the existing nine members of the Court has ever considered a Second Amendment case, so I'll stray from predicting the outcome here. That said, I anticipate the conservative bloc (Roberts, Scalia, Thomas and Alito) to side with the DC Circuit, and the liberal bloc (Stevens, Souter, Ginsberg and Breyer) to vote to uphold the local ordinance. The swing vote, as usual on the Roberts Court, is Justice Kennedy. In his hands, far from "cold" or "dead," rests the fate of local ordinances and the individual right to keep and bear arms.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at

Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project

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