Heller and Self Defense


“Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.”

Thus wrote Justice Scalia in the majority opinion in this case. In Heller, SCOTUS established two important points. First, the Second Amendment is an individual, not a collective right. That settled an argument that has been ongoing for over 100 years. SCOTUS also decided that the primary purpose of the Second Amendment is self defense, and not limited to hunting or sporting use of firearms. There are many other facets of the decision, but I think that these are the two that will have the most effect on the citizens of this country.

“The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,’ would fail constitutional muster.”

Predictably, the anti self defense uh, gun grabbing, er, we know better than you concerned citizens at the Brady Center and other Nanny State organizations decried this decision as the end of civilization as we know it. “Wild West” seems to have been the term used the most, but there are others. Apparently, when SCOTUS interprets the Constitution to mean exactly what the Framers meant, they are activist jurists. What. Ever.

Heller, of course is the first, but won’t be the last case filed on this subject. Already a case McDonald, et al., v. City of Chicago, et al. has been filed to challenge the Windy City’s total ban on handgun ownership. The purpose of this suit is to get SCOTUS to incorporate the Second Amendment as applying to the states, which Heller didn’t do.

This all applies to Self Defense since the court said that DC can NOT ban people from having firearms, especially handguns, in their homes for self defense. Which is an important legal concept. While DC can not have a total ban, they can have reasonable regulations. I have little doubt that someone will end up suing the district to determine what that means.

The reality though, is that this won’t change things in many states. A few, such as New York, Massachusetts, New Jersey, California, and Illinois will be effected if McDonald is eventually decided favorably in light of Heller. Which will take about five years or more.

In states that already recognize the right to bear arms and the right to self defense, this is old news. Self defense is a human right, as Oleg Volk tells us. What it should also be is fairly far down on your list of options. Number 1 would be do everything you can to avoid a situation where you need to use your gun. That includes retreating where possible. Which generally isn’t in your home, but may well be if you are out and about somewhere.

Xavier has some really good information over at his blog. He’s put a lot of thought and research into the subject, so there’s no sense in me reinventing the wheel. James at Hell in a Handbasket
specializes in self defense, especially for extra vulnerable people. He always has good advice on the subject.

Once you’ve read those blogs, read about Joe Horn. Here is a quote from DA Kenneth Magidson,

“Although, by state law, I cannot discuss the actual proceedings in the grand jury, I can tell you that the grand jury conducted a thorough review of the evidence and testimony. They considered the relevant criminal statutes in Texas, including those pertaining to homicide, use of deadly force, self-defense, and defense of property. In short, before making their decision, they were as well-informed on the facts and circumstances of this case as any deliberative body could be.”

There is a lot of controversy in the shooting community about whether this was self defense or something more sinister. Even some hard corps self defense people I know don’t think that he was right. A Grand Jury in Texas evidently did because it refused to hand up an indictment in the case.

To be sure, there is a difference between the legal question and the moral question. It is not, and should not be, up to the legal system to decide if this was morally correct. It was up to the legal system, in the guise of the Grand Jury, to decide if Mr. Horn complied with the laws of the State of Texas. He did and so they returned no true bill of indictment and he is off the hook criminally.

SCOTUS has now said that people living in Washington, DC have a right to keep and bear arms for self defense. They have implicitly said that when those residents are in their homes, they have the right to USE their weapons for self defense. That part of the decision could have far reaching effects if the plaintiffs prevail in McDonald. States that currently impose a “duty to retreat” on their citizens or that refuse to issue licenses for handguns would see their laws invalidated.

“Respondent conceded at oral argument that he does not ‘have a problem with . . . licensing’ and that the District’s law is permissible so long as it is ‘not enforced in an arbitrary and capricious manner.’ We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.”

A law such as that in Massachusetts which allows police chiefs wide discretion if or when to issue concealed handgun licenses and place restrictions on such issuance could find their laws invalidated as well. It could well be argued that such discretion allows issuing decisions to be “arbitrary and capricious”.

Courts have held that the police have only a general right to provide protection, but can not be sued for not providing protection to a specific person or persons. Warren v. District of Columbia, 444 A.2d 1, among others. In Warren, the District argued that they could not be held liable for damages due to the police department’s failure to respond appropriately to a burglary/rape in progress call. The DC Court of Appeals agreed with the District.

That the police can not be everywhere and can not protect everyone is not a criticism of the police. It is just a fact of life. So, if the police can not protect you it really only leaves one alternative, which is that you protect yourself. A firearm is the most efficient and effective means to do that, especially for the elderly, handicapped, and most females.

Heller also affirmed something else that we should have known all along,

“When seconds count, the police are just minutes away”. In other words, you are your own first line of defense.

As always, remember that I am not a lawyer so this is just my opinion. Remember the saying about anuses and opinions.

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After a long career as a field EMS provider, I'm now doing all that back office stuff I used to laugh at. Life is full of ironies, isn't it? I still live in the Northeast corner of the United States, although I hope to change that to another part of the country more in tune with my values and beliefs. I still write about EMS, but I'm adding more and more non EMS subject matter. Thanks for visiting.


  1. Since it is a 5-4 decision, I wouldn’t be surprised if they tried to overturn this as soon as the composition of the court changes.

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