Second Amendment: Doctrine and Practice

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.

After that decision, Congress placed greater limitations on the receipt, possession, and transportation of firearms,8 Footnote
Enacted measures include the Gun Control Act of 1968. 82 Stat. 226, 18 U.S.C. §§ 921 -928. The Supreme Court’s dealings with these laws have all arisen in the context of prosecutions of persons purchasing or obtaining firearms in violation of prohibitions against such conduct by convicted felons. Lewis v. United States, 445 U.S. 55 (1980) ; Barrett v. United States, 423 U.S. 212 (1976) ; Scarborough v. United States, 431 U.S. 563 (1977) ; United States v. Bass, 404 U.S. 336 (1971) . and proposals for national registration or prohibition of firearms altogether have been made.9 Footnote
E.g., National Commission on Reform of Federal Criminal Laws, Working Papers 1031–1058 (1970) , and Final Report 246–247 (1971) . Miller , however, shed little light on the validity of such proposals. Pointing out that interest in the “character of the Second Amendment right has recently burgeoned,” Justice Thomas, concurring in the Court’s invalidation (on other grounds) of the Brady Handgun Violence Prevention Act, questioned whether the Second Amendment bars federal regulation of gun sales, and suggested that the Court might determine “at some future date . . . whether Justice Story was correct . . . that the right to bear arms has justly been considered, as the palladium of the liberties of a republic.’” 10 Footnote
Printz v. United States, 521 U.S. 898, 937–39 (1997) (quoting 3 Commentaries § 1890, p. 746 (1833)). Justice Scalia, in extra-judicial writing, has sided with the individual rights interpretation of the Amendment. See Antonin Scalia , A Matter of Interpretation, Federal Courts and the Law , 136–37 n.13 (A. Gutmann, ed., 1997) (responding to Professor Tribe’s critique of “my interpretation of the Second Amendment as a guarantee that the Federal Government will not interfere with the individual’s right to bear arms for self-defense” ).

It was not until 2008 that the Supreme Court definitively came down on the side of an “individual rights” theory. Relying on new scholarship regarding the origins of the Amendment,11 Footnote
E. Volokh , The Commonplace Second Amendment , 73 N. Y.U. L. Rev. 793 (1998) ; R. Barnett , Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? , 83 Tex. L. Rev. 237 (2004) ; E. Volokh , “Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1 (2007) ; What Did “Bear Arms” Mean in the Second Amendment? , 6 Georgetown J. L. & Pub. Policy (2008) . the Court in District of Columbia v. Heller 12 Footnote
554 U.S. 570 (2008) . confirmed what had been a growing consensus of legal scholars—that the rights of the Second Amendment adhered to individuals. The Court reached this conclusion after a textual analysis of the Amendment,13 Footnote
The “right of the people,” for instance, was found in other places in the Constitution to speak to individual rights, not to collective rights (those that can only be exercised by participation in a corporate body). Id. at 578–80 . an examination of the historical use of prefatory phrases in statutes, and a detailed exploration of the 18th century meaning of phrases found in the Amendment. Although accepting that the historical and contemporaneous use of the phrase “keep and bear Arms” often arose in connection with military activities, the Court noted that its use was not limited to those contexts.14 Footnote
Id. at 580–91 . In so doing, the Heller Court rejected the argument that “only those weapons useful in warfare are protected” by the Second Amendment, as the “traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense.” Id. at 624–25 (quoting United States v. Miller, 307 U.S. 174, 179 (1939) ) ( “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” ); see also Caetano v. Massachusetts , No. 14-10078, Slip Op. (March 21, 2016) (vacating a ruling by a state court that a ban on stun guns did not violate the Second Amendment because such weapons were not “readily adaptable to use in the military.” ). Further, the Court found that the phrase “well regulated Militia” referred not to formally organized state or federal militias, but to the pool of “able-bodied men” who were available for conscription.15 Footnote
Heller , 554 U.S. at 594–96 . Similarly, the phrase “security of a free state” was found to refer not to the defense of a particular state, but to the protection of the national polity. Id. at 596–98 . Finally, the Court reviewed contemporaneous state constitutions, post-enactment commentary, and subsequent case law to conclude that the purpose of the right to keep and bear arms extended beyond the context of militia service to include self-defense.

Using this “individual rights theory,” the Court struck down a District of Columbia law that banned virtually all handguns, and required that any other type of firearm in a home be dissembled or bound by a trigger lock at all times. The Court rejected the argument that handguns could be banned as long as other guns (such as long-guns) were available, noting that, for a variety of reasons, handguns are the “most popular weapon chosen by Americans for self-defense in the home.” 16 Footnote
Id. at 628–29 . Subsequently, in Caetano v. Massachusetts , the Court emphasized that, under Heller , the protections of the Second Amendment extend to firearms that were not in existence at the time of the Framers. See Caetano , No. 07-290, Slip Op. at 1028 (per curiam) (vacating and remanding a Massachusetts state court ruling upholding a state law that prohibited the possession of stun guns, in part, on the grounds that stun guns were not in common use when the Second Amendment was adopted). Similarly, the requirement that all firearms be rendered inoperable at all times was found to limit the “core lawful purpose of self-defense.” 17 Footnote
Heller , No. 07-290, Slip Op. at 630 . However, the Court specifically stated (albeit in dicta ) that the Second Amendment did not limit prohibitions on the possession of firearms by felons and the mentally ill, penalties for carrying firearms in schools and government buildings, or laws regulating the sales of guns.18 Footnote
Id. at 626 . The Court also noted that there was a historical tradition of prohibiting the carrying of “dangerous and unusual weapons” that would not be affected by its decision.19 Footnote
Id. at 627 . But see Caetano , No. 14-10078, Slip Op. at 1028 (rejecting, as inconsistent with Heller , the view that a weapon may be deemed “unusual” if it was not in common use at the time when the Second Amendment was adopted, as well as the view that the Second Amendment only protects weapons that are “useful in warfare” ). The Court, however, declined to establish the standard by which future gun regulations would be evaluated.20 Footnote
Heller , No. 07-290, Slip Op. at 629 n.27 (discussing the non-application of rational basis review). And, more importantly, because the District of Columbia is a federal enclave, the Court did not have occasion to address whether it would reconsider its prior decisions that the Second Amendment does not apply to the states.

The latter issue was addressed in McDonald v. Chicago ,21 Footnote
561 U.S. 742 (2010) . where a plurality of the Court, overturning prior precedent, found that the Second Amendment is incorporated through the Fourteenth Amendment and is thus enforceable against the states.22 Footnote
The portion of the opinion finding incorporation was authored by Justice Alito, and joined by Chief Justice Roberts, Justice Scalia and Justice Kennedy. Justice Thomas declined to join the plurality's opinion as regards incorporation under the Due Process Clause. Instead, Justice Thomas, alone among the Justices, would have found that the Second Amendment is applicable to the states under the Privileges or Immunities Clause. For a more detailed discussion of incorporation and the Privileges or Immunities Clause, see supra Bill of Rights, Fourteenth Amendment and Fourteenth Amendment, Privileges or Immunities. Relevant to this question, the Court examined whether the right to keep and bear arms is “fundamental to our scheme of ordered liberty” 23 Footnote
Duncan v. Louisiana, 391 U.S. 145, 149 (1968) . or “deeply rooted in this Nation’s history and tradition” .24 Footnote
Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted). The Court, relying on historical analysis set forth previously in Heller , noted the English common law roots of the right to keep arms for self-defense25 Footnote
McDonald , 561 U.S. at 742, 768 (2010) (noting that Blackstone had asserted that the right to keep and bear arms was “one of the fundamental rights of Englishmen” ). and the importance of the right to the American colonies, the drafters of the Constitution, and the states as a bulwark against over-reaching federal authority.26 Footnote
561 U.S. 742, 768–70 (2010) . Noting that by the 1850s the perceived threat that the National Government would disarm the citizens had largely faded, the Court suggested that the right to keep and bear arms became valued principally for purposes of self-defense, so that the passage of Fourteenth Amendment, in part, was intended to protect the right of ex-slaves to keep and bear arms. While it was argued by the dissent that this protection would most logically be provided by the Equal Protection Clause, not by the Due Process Clause,27 Footnote
561 U.S. 742, 878–80 (2010) (Breyer, J., dissenting). the plurality also found enough evidence of then-existent concerns regarding the treatment of black citizens by the state militia to conclude that the right to bear arms was also intended to protect against generally-applicable state regulation.

Footnotes 1 A sampling of the diverse literature in which the same historical, linguistic, and case law background shows the basis for strikingly different conclusions includes: Staff of Subcomm. on the Constitution, Senate Committee on the Judiciary , 97th Congress, 2d Sess., The Right to Keep and Bear Arms (Comm. Print 1982) ; Don B. Kates , Handgun Prohibition and the Original Meaning of the Second Amendment (1984) ; Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol ed., 1993) ; Stephen P. Halbrook , That Every Man Be Armed: The Evolution of a Constitutional Right (1984) ; Symposium, Gun Control , 49 Law & Contemp. Probs. 1 (1986) ; Sanford Levinson , The Embarrassing Second Amendment , 99 Yale L.J. 637 (1989) ; Joyce Lee Malcolm , To Keep and Bear Arms: The Origins of an Anglo-American Right (1994) ; Glenn Harlan Reynolds , A Critical Guide to the Second Amendment , 62 Tenn. L. Rev. 461 (1995) ; William Van Alystyne , The Second Amendment and the Personal Right to Bear Arms , 43 Duke L.J. 1236 (1994) ; Symposium, Symposium on the Second Amendment: Fresh Looks , 76 Chi.-Kent L. Rev. 3 (2000) . 2 Presser v. Illinois, 116 U.S. 252, 265 (1886) . See also Miller v. Texas, 153 U.S. 535 (1894) ; Robertson v. Baldwin, 165 U.S. 275, 281–82 (1897) . The non-application of the Second Amendment to the states was reaffirmed in Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982) , cert. denied, 464 U.S. 863 (1983) . 3 United States v. Cruikshank, 92 U.S. 542 (1876) . 4 307 U.S. 174 (1939) . The defendants had been released on the basis of the trial court determination that prosecution would violate the Second Amendment and no briefs or other appearances were filed on their behalf; the Court acted on the basis of the government’s representations. 5 307 U.S. at 178 . 6 307 U.S. at 179 . 7 307 U.S. at 178 . In Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942) , cert. denied, 319 U.S. 770 (1943) , the court, upholding a similar provision of the Federal Firearms Act, said, “Apparently, then, under the Second Amendment, the Federal Government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia.” See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (dictum: Miller holds that the “ Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’” ). See also Hickman v. Block , 81 F.3d 98 (9th Cir.) (plaintiff lacked standing to challenge denial of permit to carry concealed weapon, because Second Amendment is a right held by states, not by private citizens), cert. denied, 519 U.S. 912 (1996) ; United States v. Gomez, 92 F.3d 770, 775 n.7 (9th Cir. 1996) (interpreting federal prohibition on possession of firearm by a felon as having a justification defense “ensures that [the provision] does not collide with the Second Amendment” ). United States v. Wright , 117 F.3d 1265 (11th Cir. 1997) , cert. denied, 522 U.S. 1007 (1997) (member of Georgia unorganized militia unable to establish that his possession of machine guns and pipe bombs bore any connection to the preservation or efficiency of a well regulated militia). 8 Enacted measures include the Gun Control Act of 1968. 82 Stat. 226, 18 U.S.C. §§ 921 -928. The Supreme Court’s dealings with these laws have all arisen in the context of prosecutions of persons purchasing or obtaining firearms in violation of prohibitions against such conduct by convicted felons. Lewis v. United States, 445 U.S. 55 (1980) ; Barrett v. United States, 423 U.S. 212 (1976) ; Scarborough v. United States, 431 U.S. 563 (1977) ; United States v. Bass, 404 U.S. 336 (1971) . 9 E.g., National Commission on Reform of Federal Criminal Laws, Working Papers 1031–1058 (1970) , and Final Report 246–247 (1971) . 10 Printz v. United States, 521 U.S. 898, 937–39 (1997) (quoting 3 Commentaries § 1890, p. 746 (1833)). Justice Scalia, in extra-judicial writing, has sided with the individual rights interpretation of the Amendment. See Antonin Scalia , A Matter of Interpretation, Federal Courts and the Law , 136–37 n.13 (A. Gutmann, ed., 1997) (responding to Professor Tribe’s critique of “my interpretation of the Second Amendment as a guarantee that the Federal Government will not interfere with the individual’s right to bear arms for self-defense” ). 11 E. Volokh , The Commonplace Second Amendment , 73 N. Y.U. L. Rev. 793 (1998) ; R. Barnett , Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? , 83 Tex. L. Rev. 237 (2004) ; E. Volokh , “Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1 (2007) ; What Did “Bear Arms” Mean in the Second Amendment? , 6 Georgetown J. L. & Pub. Policy (2008) . 12 554 U.S. 570 (2008) . 13 The “right of the people,” for instance, was found in other places in the Constitution to speak to individual rights, not to collective rights (those that can only be exercised by participation in a corporate body). Id. at 578–80 . 14 Id. at 580–91 . In so doing, the Heller Court rejected the argument that “only those weapons useful in warfare are protected” by the Second Amendment, as the “traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense.” Id. at 624–25 (quoting United States v. Miller, 307 U.S. 174, 179 (1939) ) ( “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” ); see also Caetano v. Massachusetts , No. 14-10078, Slip Op. (March 21, 2016) (vacating a ruling by a state court that a ban on stun guns did not violate the Second Amendment because such weapons were not “readily adaptable to use in the military.” ). 15 Heller , 554 U.S. at 594–96 . Similarly, the phrase “security of a free state” was found to refer not to the defense of a particular state, but to the protection of the national polity. Id. at 596–98 . 16 Id. at 628–29 . Subsequently, in Caetano v. Massachusetts , the Court emphasized that, under Heller , the protections of the Second Amendment extend to firearms that were not in existence at the time of the Framers. See Caetano , No. 07-290, Slip Op. at 1028 (per curiam) (vacating and remanding a Massachusetts state court ruling upholding a state law that prohibited the possession of stun guns, in part, on the grounds that stun guns were not in common use when the Second Amendment was adopted). 17 Heller , No. 07-290, Slip Op. at 630 . 18 Id. at 626 . 19 Id. at 627 . But see Caetano , No. 14-10078, Slip Op. at 1028 (rejecting, as inconsistent with Heller , the view that a weapon may be deemed “unusual” if it was not in common use at the time when the Second Amendment was adopted, as well as the view that the Second Amendment only protects weapons that are “useful in warfare” ). 20 Heller , No. 07-290, Slip Op. at 629 n.27 (discussing the non-application of rational basis review). 21 561 U.S. 742 (2010) . 22 The portion of the opinion finding incorporation was authored by Justice Alito, and joined by Chief Justice Roberts, Justice Scalia and Justice Kennedy. Justice Thomas declined to join the plurality's opinion as regards incorporation under the Due Process Clause. Instead, Justice Thomas, alone among the Justices, would have found that the Second Amendment is applicable to the states under the Privileges or Immunities Clause. For a more detailed discussion of incorporation and the Privileges or Immunities Clause, see supra Bill of Rights, Fourteenth Amendment and Fourteenth Amendment, Privileges or Immunities. 23 Duncan v. Louisiana, 391 U.S. 145, 149 (1968) . 24 Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted). 25 McDonald , 561 U.S. at 742, 768 (2010) (noting that Blackstone had asserted that the right to keep and bear arms was “one of the fundamental rights of Englishmen” ). 26 561 U.S. 742, 768–70 (2010) . 27 561 U.S. 742, 878–80 (2010) (Breyer, J., dissenting).

The following state regulations pages link to this page.