Amdt2.5 Post-Heller Issues and Application of Second Amendment to States

Second Amendment:

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.

The Supreme Court’s decision in Heller left several questions regarding the scope and application of the Second Amendment unanswered, including what methodology or level of scrutiny should ordinarily apply to laws implicating the Second Amendment right to keep and bear arms and how far Second Amendment protections extend, if at all, beyond keeping firearms for self defense in the home. Additionally, because Heller involved a challenge to a D.C. law, which is generally not treated as a state for purposes of constitutional law,1 a question beyond the scope of Heller was whether the Second Amendment applies to the states. Several Supreme Court cases near the end of the nineteenth century established the Second Amendment as a constraint only on federal government action.2 However, as the Supreme Court noted in Heller, those decisions “did not engage in the sort of Fourteenth Amendment inquiry required by” later Supreme Court cases3 —specifically, cases establishing the doctrine of “selective incorporation” through which particular provisions in the Bill of Rights that are “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition” are considered to be incorporated in the Due Process Clause of the Fourteenth Amendment such that they apply to the states.4

The Supreme Court revisited the issue of whether the Second Amendment applies to the states in the 2010 case McDonald v. City of Chicago,5 concluding that it does. McDonald involved Second Amendment challenges to ordinances banning handgun possession in the City of Chicago and its neighboring suburb of Oak Park, Illinois.6 The lower courts held that they were bound by the Supreme Court precedent establishing that the Second Amendment does not apply to the states, but the Supreme Court reversed in a 4-1-4 ruling.7 The Court, in an opinion authored by Justice Alito, concluded that “the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” 8 Thus, a plurality of the Court held that the Second Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment.9 The plurality first noted that Heller makes “unmistakabl[e]” that the basic right to self-defense is a “central component” of the Second Amendment and “deeply rooted in this Nation’s history and tradition.” 10 The Court reiterated much of the information recited in Heller about the founders’ relationship to arms, including the fear many held—based on King George III’s attempts to disarm the colonists—that the newly created federal government, too, would disarm the people to impose its will.11 The Court explained that, even though the initial perceived threat of disarmament had dissipated by the 1850s, “the right to keep and bear arms was highly valued for purposes of self-defense.” 12 The Court also pointed to congressional debate in 1868 of the Fourteenth Amendment, during which Senators had referred to the right to keep and bear arms as a “fundamental right deserving of protection.” 13

In his concurring opinion, Justice Thomas said that he would have construed the Second Amendment to be applicable to the states via the Privileges or Immunities Clause of the Fourteenth Amendment because, in his view, “the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.” 14 Justice Thomas’s opinion nevertheless provided the crucial fifth vote to hold that the Second Amendment applies to the states.

Justice Breyer dissented (joined by Justices Ginsburg and Sotomayor), contending that “nothing in the Second Amendment’s text, history, or underlying rationale . . . warrant[s] characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.” 15 Additionally, he asserted that the Constitution provides no authority for “transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislators to courts or from the States to the Federal Government.” 16

Justice Stevens authored another dissenting opinion, arguing that the question before the Court was not whether the Second Amendment, as a whole, applies to the states, but rather whether the Fourteenth Amendment requires that the liberty interest asserted— “the right to possess a functional, personal firearm, including a handgun, within the home” —be enforceable against the states.17 In his view, the Second Amendment is not enforceable against the states, particularly because the Amendment is a “federalism provision” that is “directed at preserving the autonomy of the sovereign States, and its logic therefore resists incorporation by a federal court against the states.” 18

Between McDonald in 2010 and New York State Rifle & Pistol Association v. Bruen in 2022, the Supreme Court issued only one other decision substantively addressing the Second Amendment.19 In Caetano v. Massachusetts,20 the Court issued a brief, per curiam opinion vacating a Massachusetts Supreme Court decision that upheld a law prohibiting the possession of stun guns. The Supreme Court reiterated in Caetano that the Second Amendment applies to the states and extends to “bearable arms” that “were not in existence at the time of the founding.” 21

The plethora of Second Amendment challenges to federal, state, and local gun laws in the years following Heller and McDonald, coupled with the lack of guidance from the Supreme Court on questions such as what standard of review governs and whether the Second Amendment applies outside the home, led the lower federal courts to develop their own rules and frameworks for analyzing Second Amendment cases. With respect to the question of how to evaluate the constitutionality of gun laws under the Second Amendment, the lower federal courts in post-Heller cases generally applied a two-step framework.22 At step one, a court would ask whether the law at issue burdened conduct protected by the Second Amendment, which typically involved an inquiry into the historical meaning of the right.23 If the law did not burden protected conduct, it was upheld.24 If the challenged law did burden protected conduct, a court would next apply either strict scrutiny—an exacting form of constitutional review requiring the government to show that the law is narrowly tailored to achieve a compelling government interest25 —or a somewhat lower standard of “intermediate scrutiny” to determine whether the law was nevertheless constitutional.26 Whether a court applied intermediate or strict scrutiny would ordinarily depend on whether the law severely burdened the “core” protection of the Second Amendment.27 What precisely constituted the “core” of the Second Amendment, however, produced some disagreement among the U.S. Courts of Appeals, particularly with respect to whether it extended beyond the home.28 Nonetheless, using the two-step framework, the U.S. Courts of Appeals after Heller upheld many firearms regulations, often after concluding that the “core” of the Second Amendment was not severely burdened and thus intermediate scrutiny should be applied.29

See Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445 (1805). back
See supra Amdt2.3 Early Second Amendment Jurisprudence. back
District of Columbia v. Heller, 554 U.S. 570, 620 n.23 (2008). back
See infra Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights. back
561 U.S. 742 (2010). back
Nat’l Rifle Ass’n of Am., Inc. v. City of Chicago, 567 F.3d 856, 857 (7th Cir. 2009). back
McDonald, 561 U.S. at 749. back
Id. at 778. back
Id. at 791. Although Justice Thomas was part of the five-Justice majority of the McDonald Court who agreed that the Second Amendment was applicable to the states via the Fourteenth Amendment, he disagreed with his colleagues’ view that the Due Process Clause served as the proper basis for this incorporation. Id. at 805–58 (Thomas, J., concurring). In Justice Thomas’s view, the Fourteenth Amendment’s Privileges or Immunities Clause provided the source for incorporation. Id. at 805–06, 855. back
Id. at 767–68 (internal emphasis, citations, and quotation marks omitted) (plurality op.). back
Id. at 768. back
Id. at 770. back
Id. at 775–76 (internal citations and quotation marks omitted). back
Id. at 778 (Thomas, J., concurring). back
Id. at 913 (Breyer, J., dissenting). back
Id. back
Id. at 858, 884, 890 (Stevens, J., dissenting). back
Id. at 897 (internal citations and quotation marks omitted). back
In 2019, the Court granted review in a case challenging portions of New York City’s handgun licensing regime that limited the transportation of firearms to shooting ranges and second homes outside the city, but changes to the laws at issue prompted the Court to effectively dismiss the case as moot in April 2020 without ruling on the merits. See N.Y. State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525, 1526 (2020). Several Justices wrote or joined separate opinions in the case signaling concern that the Second Amendment was not being properly applied by some courts. E.g., id. at 1527 (Kavanaugh, J., concurring) ( “[I] share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald.” ). back
577 U.S. 411 (2016). back
Id. at 412. back
See, e.g., Powell v. Tompkins, 783 F.3d 332, 347 n.9 (1st Cir. 2015) (collecting cases). back
E.g., Silvester v. Harris, 843 F.3d 816, 820–21 (9th Cir. 2016); Ezell v. City of Chicago, 651 F.3d 684, 701 (7th Cir. 2011). Courts at step one sometimes recognized a safe harbor for the kinds of “longstanding” and “presumptively lawful” regulations that the Supreme Court in Heller appeared to insulate from doubt. E.g., United States v. Bena, 664 F.3d 1180, 1183 (8th Cir. 2011) ( “It seems most likely that the Supreme Court viewed the regulatory measures listed in Heller as presumptively lawful because they do not infringe on the Second Amendment right.” ). In a variation, some courts treated such regulations not as per se constitutional but merely as being entitled to a presumption of constitutionality. See, e.g., Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 686 (6th Cir. 2016) ( “Heller only established a presumption that such bans were lawful; it did not invite courts onto an analytical off-ramp to avoid constitutional analysis.” ) back
E.g., Medina v. Whitaker, 913 F.3d 152, 160 (D.C. Cir. 2019) (concluding that, based on historical evidence, “a felony conviction removes one from the scope of the Second Amendment” ). back
E.g., NIFLA v. Becerra, 138 S. Ct. 2361, 2371 (2018) (describing strict scrutiny standard in the context of the First Amendment). back
Courts sometimes would go on to step two in an “abundance of caution” even if it was doubtful that a challenged law burdened conduct protected by the Second Amendment. Nat’l Rifle Ass’n of Am., Inc. v. ATF, 700 F.3d 185, 204 (5th Cir. 2012); see Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 2013) ( “[W]e and other courts of appeals have sometimes deemed it prudent to instead resolve post-Heller challenges to firearm prohibitions at the second step[.]” ). back
E.g., Nat’l Rifle Ass’n, 700 F.3d at 195. back
Compare Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 94 (2d Cir. 2012) ( “The state’s ability to regulate firearms . . . is qualitatively different in public than in the home.” ); Gould v. Morgan, 907 F.3d 659, 672 (1st Cir. 2018) (stating that the right “is at its zenith inside the home” and “is plainly more circumscribed outside the home” ); and Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) ( “If Second Amendment rights apply outside the home, we believe they would be measured by the traditional test of intermediate scrutiny.” ), with Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017) (recognizing that the right of law-abiding citizens to carry a concealed firearm is a core component of the Second Amendment); and Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012) ( “The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.” ). back
E.g., Gould, 907 F.3d at 676–77; Bonidy, 790 F.3d at 1128–29; Kanter v. Barr, 919 F.3d 437, 450–51 (7th Cir. 2019). Not all firearms regulations were upheld, however. See, e.g., N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 264 (2d Cir. 2015) (concluding that a law limiting the number of rounds that could be loaded into a firearm did not survive intermediate scrutiny on the record before the court); Wrenn, 864 F.3d at 667 (holding that restrictions on obtaining concealed carry license effectively banned exercise of core Second Amendment right and were thus unconstitutional); but see Kachalsky, 701 F.3d at 94 (applying intermediate scrutiny and upholding similar restrictions after concluding that possession of firearms outside the home is outside core of Second Amendment). back