After Heller: “In case of confrontation”



There has been much debate about the Second Amendment grounded in several significant Supreme Court Decisions:  D.C. v. Heller, McDonald v. City of Chicago, and Caetano v. Massachusetts.  But what do these decisions stand for?  What do they portend for the future?   This may develop from the proposition articulated in Heller: “. . . in case of confrontation.”

More than any other statements in these decisions, these four words convey the expansion of the scope of the Second Amendment for the foreseeable future.

In paragraph “c. Meaning of the Operative Clause” the Court explained:

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

The Heller decision was simple enough:  “We affirm the judgment of the Court of Appeals.”  Dick Heller gets his gun.  That’s all.  The immediate implication is that every other Tom, Dick and Harry living in the District of Columbia may exercise their Second Amendment rights and get their guns, too.

“In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” [author’s emphases]

Dick Heller’s prayer for relief was answered, and that is all the Court was asked to do in his cause.

The Court’s stirring summary caps this conclusion as follows:

“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26.

“But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibi­tion of handguns held and used for self-defense in the home.

“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” [author-supplied paragraph breaks]

Much of the first 63 pages of the Heller opinion serves to explain these conclusions, marking some of the “metes and bounds” of the “right” guaranteed by the Second Amendment.  In so doing, the Court took care (as is typical of majority opinions) to distinguish the elements of the “right” it found from those not relevant to the case before it.

Illustrative of such distinctions, it explained the military scope of “the right” but made clear that this opinion was not to be construed to include machine guns. Dick Heller’s gun was a pistol, not a machine gun.  It wasn’t necessary to resolve questions concerning machine guns, short-barreled shotguns or rifles or “Any Other Weapon” (a type of arm defined by the National Firearms Act of 1934 that is so obscure it didn’t even enjoy an honorable mention in the opinion.)

In fact, the holding doesn’t even tell us much about the “right” it staked out as squarely within the scope of the Second Amendment.  The holding speaks of the “handgun” as protected without defining that term.  Perhaps the Court thought it meant whatever it is that the Bureau of Alcohol Tobacco and Firearms defines a “handgun” to be.  We don’t really know, other than what might be inferred from the fact that Dick Heller’s gun was a pistol.

Likewise, the holding speaks of a “home” without defining that term.  Is it the owner’s singular domicile, or any residence?  Is it a fixed or “floating” place such as a houseboat?  Does it include the “curtilage” (porch, garden, etc.)?  Nor do we have any idea what they meant by “operable for the purpose of immediate” self-defense; notwithstanding that self-defense was the core purpose of the right secured by the Second Amendment.

So, why make so much out of the phrase “in case of confrontation”? Because these four words carry the meat of the Court’s finding in Heller.  Where’s the beef?  It’s right there, in those four words.

There has never been any doubt that an innocent citizen has the right to use lethal force in defense of the life or limb of self or others.  Whatever weapon one might have at one’s disposal, she has a right to use under the doctrine of “the lesser harm”; be that a club, cutlery or a gun.

What has been undetermined for much of the past 200 years is the right to keep and carry some such “arm” wherever she might be or go.  Having found that a “handgun” is an arm, may she keep it in her home?  May she carry it outside the home?  To what degree would any such keeping or carrying be her right?  The Heller opinion certainly did not go so far as to say she may carry a handgun everywhere she might go.

Heller stands for the proposition that she may—at least—carry in her home for purposes of self-defense in case of confrontation.  The Second Amendment enabled citizen may keep and carry in contemplation of a contingency that is not immediately upon her.  And, where may such a contingency arise?  Just about anywhere!  What do these observations portend for the future?  We can’t know with any degree of confidence; yet we can imagine the next steps.

Over-the-road truck drivers typically sleep in the cabs of their trucks.  Safety regulations require that they rest periodically. Drivers routinely “time out” and must stop to rest along roadsides, at rest stops, or industrial parks where there is little in the way of public security.  A truck’s sleeper cab is, in such circumstances, indistinguishable from the typical citizen’s “home”.

Even when a truck is not equipped with a sleeper cab, drivers are compelled to stop and rest, sleeping as well as they may.  Moreover, they are vulnerable to breakdowns on lightly traveled roadways; and, such is the case for any motorist.  It’s not difficult to foresee the next case involving interstate travelers, especially truck drivers, asserting the right to keep/carry a handgun in their vehicles.

Once a traveler reaches a destination, she would expect to dismount from her vehicle and traverse the distance from a parking space to an office, shop, warehouse where she may come under the mantle of protection of the proprietor of that place.  When travel is during business hours, recourse to security resources (public police or private guards) may be available; but such is not always the case.

Truck drivers need to make deliveries at odd hours of the night.  Medical services workers need to travel poorly lit and lightly patrolled parking lots and walkways.  Upon returning home at odd hours, a commuter likewise may need to cross a parking lot or walkway to reach the sanctuary of her home.

One can no more discount the contingency described by “in case of confrontation” in such circumstances than the Court could in the case of Dick Heller’s home.  And so, we may anticipate, future cases in the genre of Heller, McDonald and Caetano, will offer the Court the opportunity to extend the scope of the right to carry beyond one’s home to one’s vehicle, workplace and the walkways between these points.

As it considers such cases in turn, the opportunities for complexity soar far beyond those few the Heller and McDonald cases needed to consider.  The potentially conflicting rights of the proprietor of a workplace are just one example.

In any case, these three cases point in the direction of expanding the scope of the right to carry “in case of confrontation”.


—’MarkPA’ is trained in economics, a life-long gun owner, NRA Instructor and Massad Ayoob graduate. He is inspired by our inalienable rights to “life, liberty and the pursuit of happiness” and holds that having the means to defend oneself and one’s community is vital to securing them.

All DRGO articles by MarkPA.