The 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.
Few sentences in the Constitution are as confusingly constructed—or as hotly debated—as the two-clause sentence that makes up the Second Amendment. Discuss gun laws long enough, and the text of the Amendment will likely make an appearance. Proponents of regulation may draw attention to “well regulated” and “Militia,” arguing that state regulation of firearms is constitutional and proper. Opponents may cite “the right of the people” and “shall not be infringed,” stating that owning firearms is an individual right no different than speech or free exercise in terms of deserving protection from state interference.
The Supreme Court did not take the Second Amendment seriously until the 21st century. Before the 1970s, there was no real constituency for gun rights, and the amendment got little attention. United States v. Miller (1939) presents a cursory and ultimately unhelpful treatment of the right, showing us an example of this period of neglect.
By contrast, recent decades have seen the growth of a powerful constituency for gun rights, leading to both polarization over gun laws and the development of substantive protections for firearms. Our discussion here focuses on two landmark cases. The first, District of Columbia v. Heller (2008), established that the Second Amendment grants an individual right to own firearms. After over a decade of uncertainty, the third case, New York State Rifle & Pistol Association Inc. v. Bruen (2022), established a new legal test for assessing firearm regulations. Rejecting the interest-means tests employed by lower courts after Heller, the Court held that when regulating firearms, only regulations consistent with our “historical tradition[s]” are constitutional. In other words, gun regulations must be similar or analogous to regulations the Framers or the authors of the Fourteenth Amendment would have found acceptable.
Take note of the following key points as we begin this section:
1. The Second Amendment was written to protect militias. While today’s debates over guns normally center on the tension between self-defense and harm to oneself or others, the Amendment was initially designed to protect militias from Congressional interference. What was not clear—and remained unclear until the Supreme Court took a side in 2008—was whether the means of such protection was through a guarantee to states that Congress could not disarm, defund, or regulate their militia out of existence, or through an individual right to own guns that potential militia members would similarly hold against Congressional interference.
In Heller (2008), Justice Scalia weaves self-defense into the narrative of the right, a consequential move that helps him make more politically acceptable interpretations of which types of arms the Amendment protects.
2. The Second Amendment was ignored until recently. In the 18th, 19th, and most of the 20th centuries, the Second Amendment had almost no impact on policy or law. Political support for a robust Second Amendment took off in the 1970s, as illustrated by the transformation of the National Rifle Association in 1978 (which before had been a moderate and rather bland interest group focused on safety and marksmanship) into an advocacy group.
3. The Supreme Court has held the Second Amendment creates an individual right, and has recently made it more difficult for states to regulate guns. As we will see below, prior to Heller the foremost scholarly and legal debate on the Second Amendment was whether it was a federalism guarantee for states (awkwardly referred to as the collective rights model) against the federal government, or an individual right similar to speech or free exercise (referred to as the individual rights model). In Heller, the Court’s majority clearly backed the individual rights model.
Heller did not weigh in on how lower courts should assess gun regulations, instead only holding that government could not flatly ban firearm ownership. Beyond that, though, the legal landscape was unclear. Did states have to offer concealed carry permits for qualified applicants? Could public universities ban gun possession on campus? To what extent could states limit the type of gun and or its ammunition capacity? And so on.
In 2022, now with a strong conservative majority, the Court again weighed in on the Second Amendment. As we shall see below, the Court’s “history and tradition test” (a phrase which finds echos in other landmark decisions in 2022, such as Kennedy v. Bremerton School District and Dobbs v. Jackson Women’s Health Organization) departs from the standard interest-means balancing tests applied in many areas of civil liberties law, such as for content discrimination. Rather than ask, for example, whether state regulation is narrowly tailored to advance an important interest (such as safety), the Court instead limits states to regulating weapons in a manner that would have been acceptable at the time when either the Constitution or the Fourteenth Amendment was written. Though future cases will clarify the scope of this test, it clearly limits gun laws far more than other potential standards would have done and makes plain the post-Trump Court’s desire to move constitutional law in a conservative direction.
