The Second Amendment to the Constitution of the United States declares, “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.” McDonald v. City of Chicago (2010) held that the due process clause of the Fourteenth Amendment incorporates the Second Amendment. This means that if a federal law violates the Second Amendment, the identical state law violates the due process clause of the Fourteenth Amendment. The federal and state governments are held to the identical standard.
Courts and commentators have offered two distinctive interpretations of the Second Amendment. The first emphasizes the prefactory clause. The Second Amendment, in this view, protects the integrity of state militias. Individuals may have rights to be in the state militia, which was central to citizenship in early American history, but the Second Amendment right does not travel outside of those militias. Persons not in state militias have no right to bear arms. The second emphasizes the individual right to bear arms. While proponents concede that the framers were primarily concerned with preventing the federal government from disbanding state militias, they maintain the Second Amendment codified a right to bear arms that can be exercised both within and without that institution. Individuals not in the state militia may bear arms for self-defense and perhaps even for hunting.
Federal courts rarely interpreted the Second Amendment for most of American history, in large part because most gun regulations were made by states. Most states had similar provisions protecting a right to bear arms in state constitutions. Before the Civil War, most states interpreted those provisions as protecting an individual right to bear arms. After the Civil War, most states interpreted state constitutional rights to bear arms as either limited to the militia or permitting any reasonable weapons control regulation.
The Supreme Court of the United States supported the individual rights interpretation of the Second Amendment in District of Columbia v. Heller (2008). The Second Amendment, Justice Scalia’s majority opinion held, protects an “individual citizen’s right to self-defense.” More specifically, Heller held that persons had a right to keep a hand-gun, a common weapon, in their house for self-defense. Scalia’s opinion also maintained that the Second Amendment rights were not abridged by “longstanding prohibitions,” such as prohibitions on gun ownership by felons or bringing guns on to school property. Beyond that, the implications of Heller were unclear.
Lower federal and state courts during the past decade have struggled with implementing Heller. Controversies have arisen over what constitutes a longstanding prohibition, what weapons are presently in common use and how far Second Amendment rights extent outside the home. Most courts have applied intermediate scrutiny when determining the constitutionality of gun regulations. This test requires states to demonstrate that the state law in question is a substantial means to an important government end. In the vast majority of cases in which courts use the intermediate scrutiny test, most notably in cases involving bans on assault rifles, the state regulation is sustained. A few state courts and lower federal justices insist on applying strict scrutiny. This test requires government officials to demonstrate that a state gun control measure is a necessary means to a compelling government end. Very few state regulations, most notably bans on assault weapons survive, this standard. The most conservative justices on the Supreme Court, most notably Justice Clarence Thomas, have repeatedly called on their brethren to resolve these interpretive differences among state and lower federal court justices. As of 2019, however, the Supreme Court has refused to intervene further in ongoing debates over the Second Amendment other than to hold in McDonald v. City of Chicago (2010) that the due process clause of the Fourteenth Amendment protects the same individual right to bear arms against the state governments that Heller protects against the federal government.
Mark A. Graber
University of Maryland Carey School of Law
Last updated: January 2019