Second Amendment

The Second Amendment of the United States Constitution 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." 

The Second Amendment, most often known as “the right to bear arms,” protects an individual’s right to possess firearms for lawful purposes in the United States. The Second Amendment protects an individual right to keep and bear arms for lawful purposes, subject to constitutionally permissible regulations. However, the Second Amendment allows the government to prevent prohibited people from accessing firearms such as minors or certain convicted criminals. States have their own legislation guiding firearm ownership. Some states are stricter and require permits while other states have broad requirements and allow for more accessible gun ownership. For example, California requires individuals to obtain a license to conceal carry. On the other hand, Texas no longer requires a license to carry a handgun in most public places as of 2021. 

Pre-Bruen

In District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court held that the Second Amendment protects an individual’s right to possess a handgun in the home for self-defense, and the District's handgun ban and functional prohibition on keeping operable firearms in the home, had violated that right. However, the Court stated that the Second Amendment does not prevent certain long-standing regulations prohibiting convicted felons and some individuals experiencing mental illness from possessing a firearm.

In McDonald v. City of Chicago, 561 U.S. 742 (2010), the U.S. Supreme Court ruled that the Second Amendment right as recognized in Heller is incorporated against the states through the Fourteenth Amendment; therefore, state regulations could not violate an individual’s right to bear arms. 

Circuit court opinions following Heller suggested that courts were willing to uphold the following regulations:

Post-Bruen

In 2022, the Supreme Court further expanded upon the precedent set by Heller in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1. In Bruen, the Court struck down a New York law requiring applicants interested in carrying a handgun for the use of self-defense in public to obtain a special license demonstrating “proper cause.” This was because the New York State law issued licenses on a “may-issue” rather than a “shall issue” basis. The Court held that the “may issue” licensing scheme allowed state authorities to deny applicants public-use licenses for firearms based on subjective findings, which violated the Second Amendment. Furthermore, the Court disavowed the use of “means-end tests” for the purposes of interpreting the Second Amendment. Instead, Second Amendment analysis evaluates the historical nature of the right and asks whether a given use of a firearm or other weapon has deep roots in United States history.

The Supreme Court continues to apply the two-step framework from Bruen in Second Amendment analysis, as affirmed in Wolford v. Lopez, 609 U.S.__(2026).

  • First, the challenger has the initial burden of showing that the plain text of the Second Amendment covers their conduct. 
    • Application for step-one frequently requires several sub-step inquiries, including: whether the challenger is part of “the people” referred to in the text of the Second Amendment, whether the weapon at issue is an “arm” within the meaning of the Second Amendment, and whether the individual’s conduct is within the scope of “to keep and bear” arms in the Second Amendment. If the challenger succeeds in demonstrating that the plain text of the Second Amendment covers their conduct, then the burden shifts to the government for step-two. 
  • Step two requires the government to show that the regulation is consistent “with this Nation's historical tradition of firearm regulation.” See: New York State Rifle & Pistol Association v. Bruen. 
    • The degree to which a current regulation must be consistent with the historical tradition was an early source of dispute Post-Bruen. In United States v. Rahimi, 602 U.S. 680, (2024) the U.S. Supreme Court clarified the standard set by Bruen in holding that the Fifth Circuit ‘erred in reading Bruen to require a “historical twin” rather than a “historical analogue.” Rather, Bruen requires a court to ask, “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” See: Rahimi. The goal of this inquiry is to determine whether a law or regulation is “relevantly similar” to historical firearm regulations; a court makes this determination by “applying faithfully the balance struck by the founding generation to modern circumstances.” See: Rahimi (quoting Bruen) and the U.S. Constitution Annotated on Rahimi and Applying the Second Amendment Bruen Standard. 

In Bruen the Supreme Court identified two primary criteria to determine whether a current law is “relevantly similar” to a historical one. A court asks both “how” and “why” a law burdens the Second Amendment right to bear arms. 

  • The “how” inquiry focuses on the mechanism and degree to which the regulation burdens the right. 
  • The “why” inquiry focuses on the purpose of a regulation. 

In Rahimi, the Court explained that “if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.” However, even if a modern regulation shares a similar purpose with historical regulations, it may still fail constitutional scrutiny if the degree to which it burdens the Second Amendment right is substantially greater than the burden imposed by the relevant historical analogues. The Bruen standard does not require a law to be identical to a historical counterpart; even when the “how” and “why” of a law is not precisely the same as a founding era counterpart, it may be similar enough in context to withstand Constitutional scrutiny. 

In 2026, the U.S. Supreme Court applied the Bruen standard to Hawaii's restriction on individuals carrying firearms onto private property open to the public without express authorization in Wolford v. Lopez. Here, the Court emphasized that historical evidence must be examined at the appropriate level, and that the relevant question was why historical laws targeted certain conduct, and not simply whether they superficially resembled the modern law. The Court ultimately determined that Hawaii’s restriction was a violation of the Second Amendment. 

For additional information, see the U.S. Constitution Annotated on the Second Amendment Right to Bear Arms, and Wolford v. Lopez: The Second Amendment and Concealed Carry of Handguns on Private Property Open to the Public.

[Last reviewed in August of 2026 by the Wex Definitions Team]

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