Second Amendment

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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." 

Such language has created considerable debate regarding the Amendment's intended scope. On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right to possess firearms. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller, 307 U.S. 174. There, the Court adopted a collective rights approach, determining that Congress could regulate a sawed-off shotgun which moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

This precedent stood for nearly 70 years until 2008, when the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller, 478 F.3d 370. The plaintiff in Heller challenged the constitutionality of a Washington D.C. law which prohibited the possession of handguns. In a 5-4 decision, the Court struck down the D.C. handgun ban as violative of that right. The Court meticulously detailed the history and tradition of the Second Amendment at the time of the Constitutional Convention and proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms. The Court carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purpose. Similarly, the Court in dicta stated that firearm regulations would not implicate the Second Amendment if that weaponry cannot be used for law-abiding purposes. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.

In 2010, the Court further strengthened Second Amendment protections in McDonald v. City of Chicago, 567 F.3d 856. The plaintiff in McDonald challenged the constitutionality of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens. In a 5-4 decision, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine. The Court lacked a majority on which specific clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.

Several questions still remain unanswered, however, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment. Generally, in constitutional law, courts subject statutes and ordinances to three levels of scrutiny, depending on the issue at hand:

  1. strict scrutiny
  2. intermediate scrutiny
  3. rational basis 

Circuit Court opinions following Heller suggests that courts are willing to uphold the following:

  • Regulations prohibiting weapons on government property. US v Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) (upholding defendant’s conviction for bringing a handgun onto post office property).
  • Regulations prohibiting possession of a handgun as a juvenile delinquent.  US v Rene E., 583 F.3d 8 (1st Cir. 2009) (holding that the Juvenile Delinquency Act ban of juvenile possession of handguns did not violate the Second Amendment).
  • Regulations requiring a permit to carry concealed weapon. Kachalsky v County of Westchester, 701 F.3d 81 (2nd Cir. 2012) (holding that a New York law preventing individuals from obtaining a license to possess a concealed firearm in public for general purposes unless the individual showed proper cause did not violate the Second Amendment). 

More recently, the U.S. Supreme Court reinforced its Heller ruling in Caetano v. Massachusetts, 136 S.Ct. 1027 (2016). The Court struck down a Massachusetts statute which prohibited the possession or use of “stun guns” by finding that “stun guns” are protected under the Second Amendment. While ruling largely on the reasoning of Heller, the opinion was per curiam and therefore did not significantly add to Second Amendment jurisprudence. 

In 2022, the Supreme Court further expanded upon the precedent set by Heller in New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court struck down a New York law requiring parties interested in purchasing a handgun for the use of self-defense outside of the home to obtain a license because the law issued licenses on a “may-issue” rather than a “shall issue” basis. This “may issue” licensing method allowed state authorities to deny interested parties public use licenses for firearms if the interested party was unable to show “proper cause” as to why they have a heightened need for self-protection over the general population. 

Furthermore, the Court disavowed the use of “means-end tests” many jurisdictions had adopted for the purposes of interpreting the Second Amendment, instead ruling that a Second Amendment analysis is limited to evaluating the historical nature of the right and whether a given use of a firearm or other weapon is deeply rooted in the history of the United States. Post-Bruen, courts can no longer use a standard scrutiny analysis like the one seen in Kachalsky v. County of Westchester to determine if a gun regulation is constitutional. Instead, a government wishing to place restrictions on firearm ownership must “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

In a concurrence, Justice Kavanaugh joined by Justice Roberts emphasizes that Bruen is not intended to invalidate “shall-issue” licensing structures or other restrictions on firearm ownership including fingerprinting, background checks, mental health evaluations, mandatory training requirements, and potential other requirements. Additionally, this concurrence draws a line between objective gun control measures, where an individual must pass a set of predetermined requirements, which are constitutional, and subjective gun control measures, such as licensing at a state official’s discretion, which are not. 

It remains to be seen how the ruling in Bruen and the sentiments espoused in this concurrence will influence cases going forward.

See also: Constitutional Amendment.

[Last updated in June of 2022 by the Wex Definitions Team]

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Erwin Chemerinsky, Constitutional Law: Principles and Policies 26-28 (2006).

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