With respect to Petitioners’ handgun ban, answering the threshold question resolves the case. If the possession of handguns is protected by the Second Amendment, handguns cannot be completely banned, however else the government may regulate their possession and use.13 The fact that a type of arm is protected by the Second Amendment defeats Petitioners’ attempt to position this case as a “standard of review” question, such that the government may ban any arms it deems too dangerous even if such arms are traditionally used for lawful civilian purposes. After all, Petitioners can conjure a rationale for banning any “arm.”14 Certainly the government may ban arms that are not protected by the Second Amendment and regulate those that are, but the threshold question of whether an arm falls into the former or latter category cannot be avoided.I don't see that the Constitution states that "certain guns" are not protected by the 2nd Amendment....seeing as how the government has taken itself to BAN particular firearms, and thereby through governmental interference and fiat, removing them from "common usage" should not stand. The King attempted to do the same to the colonists, and for that very reason, the Founding Fathers wanted to ensure that the people were not limited by the government from obtaining weapons.....Nor may the government justify a ban on a particular firearm simply by claiming to allow the possession of others. While it is a dubious proposition that Petitioners allow individuals any firearms for private home use, the government’s compliance with the Constitution by allowing rifles would not permit the government to violate the Constitution by banning handguns—any more than the government could prohibit books because it permits newspapers and considers them an “adequate substitute.”
III. WASHINGTON, D.C.’S FUNCTIONAL FIREARMS BAN IS UNCONSTITUTIONAL.Petitioners concede that if the Second Amendment protects an individual right, “a law that purported to eliminate that right—for instance, by banning all gun possession, or allowing only a firearm that was so ineffective that the law effected functional disarmament,” would be unconstitutional. Pet.Br. 43-44.21 The only dispute is whether D.C. Code section 7-2507.02 “effects functional disarmament.”
Determining whether section 7-2507.02 effects functional disarmament requires no fact-finding. And as Petitioners concede, a functional firearms ban would be unconstitutional “whatever [a Legislature’s] reasons” might be for enacting it. Pet. Br. 43. Making matters easier, Petitioners agree that section 7-2507.02 “would be unreasonable” if it offered no provision for home self-defense. Pet. Br. 56.
The statutory language is unequivocal: without exception, individuals may never possess a functional firearm at home....
IV. THE STANDARD OF REVIEW IN SECOND AMENDMENT CASES IS STRICT SCRUTINY.
* * * Today the Court is told that private gun ownership is too dangerous to be counted among first-tier enumerated rights. Americans who suffered British rule might disagree.
Agreed. “Arms” is used without limitation. “...shall not be infringed” makes it clear: no limitation. The prefatory clause, insofar as it helps one understand the breadth of the operative clause (which Heller makes clear is not to be limited) clarifies that yes, indeed, military-specific arms are included.
As wonderful as Heller’s petition is, to survive it is setting up some boundaries that we will later have to overcome with non-trivial difficulty.