District of Columbia v. Heller and the Making of an Individual Right

Dick Heller spent his working days carrying a gun. He was a special police officer in Washington, D.C., licensed to be armed on duty as a security guard at a federal building, the Thurgood Marshall Federal Judiciary Building near Union Station. When his shift ended, he had to leave the weapon behind. The District of Columbia, under a law that took effect in 1976, effectively banned residents from keeping handguns at home, and required any other firearm kept there to be unloaded and disassembled or locked. Heller applied for a permit to register a handgun for his home, and the District turned him down. That denial was the reason his name ended up on one of the most consequential Supreme Court decisions of the century. But Heller was not the first plaintiff in line, and he did not find the lawyers. The lawyers found him, as part of a case that had been designed, carefully and deliberately, to reach the justices.

In short: In 2008, District of Columbia v. Heller held for the first time that the Second Amendment protects an individual's right to keep a handgun at home for self-defense, unconnected to service in a militia. Justice Antonin Scalia's five-to-four majority read the amendment's opening clause about a "well regulated Militia" as a preface, not a limit; the dissents by Justices John Paul Stevens and Stephen Breyer read the same text and history very differently. The decision also said many gun laws remain lawful, a promise still being tested in 2026.

A lawsuit built from the ground up

The case began with a lawyer named Robert Levy, a senior fellow at the libertarian Cato Institute, who had become convinced that the Second Amendment protected an individual right and that the courts had never squarely said so. Levy and two other lawyers, Alan Gura and Clark Neily, set out to find the right case. They chose Washington, D.C., because as a federal district its law raised no question of whether the amendment applied to states, and because its gun law was among the strictest in the country.

They then looked for plaintiffs: ordinary, sympathetic residents, from different backgrounds, who wanted to keep a gun at home for protection. Levy paid for the litigation himself. They filed in 2003, with six plaintiffs. The lead plaintiff was a woman named Shelly Parker, who had been threatened by drug dealers in her neighborhood after complaining about their activity.

In 2007, the U.S. Court of Appeals for the D.C. Circuit ruled in their favor. But the court found that only one of the six had standing to sue, because only one had actually applied for a permit and been denied. That was Dick Heller. The case that reached the Supreme Court bore his name.

There is a lesson in that detail. Landmark Supreme Court cases are rarely accidents. The civil rights lawyers who brought Brown v. Board of Education spent decades building toward it. The conservative and libertarian lawyers who brought Heller followed a similar playbook. Some gun rights organizations even worried, at the time, that the case was moving too fast and might produce a bad ruling. Levy's group pressed ahead.

What the Court had said before

For most of the twentieth century, the Supreme Court said little about the Second Amendment. Its main decision came in United States v. Miller, in 1939, involving two men charged with transporting an unregistered short-barreled shotgun across state lines in violation of the National Firearms Act of 1934. The Court upheld the law, reasoning that it had no evidence that such a shotgun had any reasonable relationship to the preservation or efficiency of a well-regulated militia.

Most lower federal courts read Miller as supporting what was called the collective rights view: the amendment protected the ability of states to maintain militias, not a right of individuals to own guns for private purposes. For decades, that was the mainstream view in the courts and in much of the legal academy. Warren Burger, the former chief justice appointed by President Richard Nixon, publicly criticized the individual-rights reading in sharp terms after he retired.

But in the 1980s and 1990s, a growing body of legal scholarship, including work by some liberal law professors, argued that the individual-rights reading had stronger historical support than courts had acknowledged. By the time Heller reached the Supreme Court, the question was genuinely open in the minds of many scholars, even if lower courts had largely settled it the other way.

Scalia's reading

The Court decided the case on June 26, 2008. Justice Antonin Scalia wrote for the five-justice majority, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito.

The Second Amendment reads: "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." Scalia divided it into two parts. The opening, about the militia, was what he called a prefatory clause. It announced a purpose but did not limit the operative clause that followed, about the right of the people.

He then examined the operative clause word by word. "The right of the people," he noted, appears elsewhere in the Bill of Rights, in the First and Fourth Amendments, and in each place it refers to individual rights. "Keep and bear arms," he argued, did not refer only to military service in the usage of the time. The amendment, in his view, codified a pre-existing right, inherited from English law, of individuals to possess and carry weapons for confrontation, including self-defense.

The prefatory clause, Scalia wrote, explained why the right was written down: the founders feared that the federal government would disarm the people in order to destroy the citizen militia. Protecting the individual right protected the militia. But the right itself was not limited to militia service.

Applying that reading, the Court held that the District's ban on handguns in the home was unconstitutional. Handguns, the opinion said, were the weapon Americans most commonly chose for self-defense at home, and a complete ban on them in the place where the need for defense is most acute could not stand under any level of scrutiny. The requirement that other firearms be kept disassembled or locked was struck down as well, because it made self-defense impossible.

What Heller said remained lawful

The opinion also contained a passage that has mattered almost as much as its holding. Scalia wrote that, like most rights, the Second Amendment right is not unlimited, and that nothing in the opinion should be taken to cast doubt on longstanding prohibitions on possession of firearms by felons and the mentally ill, laws forbidding firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms. He called these presumptively lawful measures, and noted the list was not exhaustive. The opinion also said that the right protected weapons in common use at the time, consistent with a historical tradition of prohibiting dangerous and unusual weapons.

That passage was a promise to the public and to lower courts that the decision did not upend the ordinary framework of American gun laws. Critics noted at the time that the opinion did not explain how those exceptions followed from its historical method. That gap would grow more important later, after the Court's 2022 decision in Bruen made history the exclusive test, and lower courts began asking whether each presumptively lawful measure actually had historical support.

Two dissents, two theories

There were two dissents, and they made different arguments, which is itself instructive.

Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, wrote the dissent on text and history. He argued that the amendment's opening clause was not a mere preface but the key to its meaning. The phrase "keep and bear Arms," in his reading, was a common term for military service, and the amendment was written to protect the states' militias from being disarmed by the new federal government, a concern rooted in debates over ratification of the Constitution. He pointed out that the founders' drafts and state proposals focused on militias, and that the amendment conspicuously did not mention self-defense or hunting, though some state constitutions did. He also argued that the majority was overturning a settled understanding that courts and legislatures had relied on for decades, since Miller.

Justice Breyer, joined by the same three, wrote a second dissent that assumed for argument's sake that the amendment protected an individual right and asked whether the District's law was nonetheless permissible. He proposed an interest-balancing approach: courts should weigh the law's burden on the right against its public safety benefits, considering the evidence on handgun violence in a dense urban area. On that analysis, he concluded, the law was a reasonable response to a serious problem and should be upheld.

The two dissents together show the two directions in which the debate has continued. One questions the individual-right reading at its root. The other accepts some version of the right but argues for a framework in which legislatures can respond to gun violence with evidence. The second has proved more politically durable, because public opinion polls have long shown that most Americans believe both that individuals have a right to own guns and that reasonable regulations are justified.

The aftermath, and an argument about it

In 2010, in McDonald v. Chicago, the Court applied the Heller right to state and local governments. In 2022, in Bruen, it held that the right extended outside the home and required that gun laws be judged by their consistency with historical tradition, rather than by the interest balancing Breyer had proposed.

Stevens never stopped arguing about the case. After retiring, he wrote that he regarded Heller as the most clearly wrong decision the Court announced while he served on it, and he proposed amending the Second Amendment to make clear that it protects the right to bear arms only in connection with militia service. That is a view far outside what any foreseeable Congress would pass.

Here is the argument this history supports. Progressives are unlikely to win, and should not spend their energy trying to win, a campaign to overturn Heller's core holding that law-abiding people may keep a handgun at home. Most gun owners in the United States are responsible people, many in rural areas and small towns, who see gun ownership as part of their way of life and security. Treating them as adversaries has helped make gun policy one of the most divisive questions in American politics, and it has cost progressives votes in places where they need them.

The better fight is over the promise Heller made: that ordinary regulations remain lawful. Background checks, keeping guns away from people who are a danger to others, rules for sensitive places and safe storage laws are popular across party lines, and Heller itself said many such measures are presumptively lawful. Holding the Court to that promise is both a stronger legal argument and a better political one.

Otis McDonald and the right that crossed into the states

Heller decided a case about the District of Columbia, which is governed by federal law. It left open whether the same right restricted states and cities. The answer came two years later, from Chicago, and from a plaintiff whose story was in some ways the most compelling of all.

Otis McDonald was a retired maintenance engineer in his seventies who lived in the Morgan Park neighborhood on the city's South Side. He had worked for decades, become active in his community and seen his neighborhood troubled by drug dealing. He wanted a handgun at home for protection, and Chicago, like Washington, banned them. Alan Gura, one of the lawyers who had won Heller, represented him.

In McDonald v. Chicago, decided on June 28, 2010, the Court ruled five to four that the Second Amendment right recognized in Heller applies to state and local governments. Justice Samuel Alito wrote the main opinion, applying the right through the Fourteenth Amendment's due process clause. Justice Clarence Thomas provided the fifth vote but argued that the better route was the privileges or immunities clause, the provision the Court had largely sidelined in the nineteenth century.

The McDonald opinions also engaged with history that progressives sometimes overlook. After the Civil War, Southern states and local authorities tried to disarm freed Black people, leaving them defenseless against violence from groups like the Ku Klux Klan. Members of Congress who wrote the Fourteenth Amendment were aware of that, and the right to keep arms appears in debates of the period as one of the rights they meant to secure. That history does not decide what modern gun laws are permissible. It is a reason for progressives to take the individual right seriously rather than treat it as a conservative invention.

What you can do

The Second Amendment debate runs through courts and legislatures at the same time, and the space Heller left for reasonable regulation is worth defending.

1. Watch the Court's gun cases. The court watch page lists this term's Supreme Court opinions with the Court's summaries, the emergency docket and Senate votes on judges.
2. Stay current. The gun violence prevention topic page gathers reporting on state laws, court challenges and the research on what reduces gun deaths.
3. Back measures most people agree on. Background checks and safe storage laws have support from many gun owners. Use the representatives lookup to find your state legislators and members of Congress and their latest votes, and ask where they stand on those two specifically.
4. Find local prevention work. The organizations directory lists health, justice reform and legal aid nonprofits in every state, including violence interruption programs that work directly in neighborhoods.

Dick Heller wanted to keep at home the kind of weapon he carried at work. The argument about what else his case allows is far from over.