by Colin Darke and David J. Nowaczewski
Colin T. Darke and David J. Nowaczewski are associates in the Debtor-Creditor Rights & Bankruptcy Practice Group at Bodman LLP in Detroit, Michigan. They can be contacted at and
“If you [ain’t] got nothing, you’ve got nothing to lose,” See Bob Dylan, Like A Rolling Stone, on Highway 61 Revisited (Columbia Records 1965). With this quote, U.S. Supreme Court Chief Justice Roberts added some color in a dissent to an otherwise dry case and apparently became the first Justice, let alone a Chief Justice, in the Supreme Court’s history to quote a rock lyric. If you enjoy historical tidbits, the Supreme Court’s 2007–08 term was right up your alley. In historically relevant cases, the Court gave exhaustive history lessons. Below is a summary of the Court’s decision regarding the right to bear arms, and in The Young Lawyer online ( you’ll find a summary of the Court’s decision regarding the right of habeas corpus. In both of these cases, the Court dug deep into the historical underpinnings of these rights. If you like statutory construction, this past term was also right up your alley. TYL online also summarizes two decisions that focus on statutory interpretation of U.S. Bankruptcy Code and the federal Securities and Exchange Act of 1934.
Dueling Guns
One of the more controversial cases decided in the Spring Term was District of Columbia, et al., v. Dick Anthony Heller, 554 U.S. ____ (2008) in which the Court opined on the scope of Second Amendment rights.
The Court held that the Second Amendment’s right “to keep and bear arms” encompasses an individual’s right to possess a firearm outside of service in a militia. The Court further held that the right extends to use of a firearm for traditionally lawful purposes, such as self-defense within the home. Conflicting with this ruling, the District of Columbia laws that prohibited the possession of handguns, forbade their registration, provided that in certain circumstances handguns could be licensed for special purposes, and mandated that such handguns be kept either unloaded or locked while stored in a home were found unconstitutional.
Dick Heller, a special D.C. police officer who was authorized to carry a handgun while on duty, applied for a registration certificate for a handgun that he wished to keep at home. The District refused to issue the certificate, and Mr. Heller filed suit on Second Amendment grounds to enjoin the enforcement of the ban on the registration of handguns and the licensing requirement that prohibited the use of functional firearms within homes.
Justice Scalia, writing for the majority that included Chief Justice Roberts and Justices Kennedy, Thomas, and Alito, held that the original meaning of the Second Amendment incorporated the individual right to keep and bear arms. As that right was understood when codified in the Bill of Rights, its primary meaning was to allow individuals to possess arms in order to protect themselves and their possessions. Thus, the first clause of the Second Amendment—”A well regulated Militia, being necessary to the security of a free State”—gives context to, but does not limit, the individual right enshrined in the Second Amendment. One of the consequences of this individual right was that militias could be assembled in short order. However, the right itself was not dependent upon a militia being in existence already. One of the primary concerns of the drafters of the Second Amendment was that a government, by dispossessing individuals of their right to bear arms, effectively destroyed the possibility of a militia.
Justices Breyer and Stevens (joined by Justices Ginsburg and Souter) each issued dissenting opinions. Justice Stevens, doing his own bit of historical research, concluded that the Second Amendment only protects militia-related interests but not self-defense alone. Justice Breyer’s dissent argued that Second Amendment rights are not absolute and need to be balanced in light of the objectives that the D.C. laws sought to implement.
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