What does the Second Amendment guarantee?
The Second Amendment to the U.S. 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.”
There are two significant competing interpretations of the Second Amendment. The first is that it provides a collective right to states, not individuals, to bear arms as part of a well regulated militia. In the 18th century, at the time of ratification, American states did not have standing armies, so when a military force was needed the state would call up the militia, which would be able-bodied local men bringing their weapons to an assembly point. Without individual ownership of a firearm, there could be no militia.
The U.S. Supreme Court lent support to this interpretation in United States v. Miller (1939). In Miller, the Court considered the case of an unlawful transport of a sawed-off shotgun under the National Firearms Act (1934). The unanimous Supreme Court noted that because there was no evidence that the weapon in question had “some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” The Court also comments that the weapon is not part “of the ordinary military equipment” and that it would not “contribute to the common defense.”
The alternative viewpoint is that the Second Amendment provides an individual right that is not limited by the requirement there be a well regulated militia. This view became the contemporary understanding of the Second Amendment after the Supreme Court reconsidered the issue in D.C. v. Heller (2008). In Heller, the Court held a handgun ban in Washington, D.C. unconstitutional and declared for the first time that the “Second Amendment conferred an individual right to keep and bear arms.” Interestingly, the Court in Heller did not reverse Miller, they simply distinguished it by noting that it was permissible to ban firearms that did not have a lawful purpose.
As the Bill of Rights limits the powers of the Federal Government, there was some question about whether the Second Amendment limited the ability of states to regulate firearms. In McDonald v. City of Chicago, the Court decided that in the affirmative, with Justice Samuel Alito asserting that the fundamental right to keep and bear arms is incorporated against states as an element of the Due Process Clause of the Fourteenth Amendment.
However, the Court has recognized that this is not an unlimited right. In Heller, Justice Antonin Scalia writes that, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Justice Scalia also wrote in support of the ability of the government to prohibit “dangerous or unusual weapons.”
While it is clear some restrictions are still possible, the extent they are permissible is less clear. To date, lower courts have upheld restrictions on juvenile possession of firearms, and concealed carry permits. Other restrictions such as certain types of licensing are currently being litigated.
There are two significant competing interpretations of the Second Amendment. The first is that it provides a collective right to states, not individuals, to bear arms as part of a well regulated militia. In the 18th century, at the time of ratification, American states did not have standing armies, so when a military force was needed the state would call up the militia, which would be able-bodied local men bringing their weapons to an assembly point. Without individual ownership of a firearm, there could be no militia.
The U.S. Supreme Court lent support to this interpretation in United States v. Miller (1939). In Miller, the Court considered the case of an unlawful transport of a sawed-off shotgun under the National Firearms Act (1934). The unanimous Supreme Court noted that because there was no evidence that the weapon in question had “some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” The Court also comments that the weapon is not part “of the ordinary military equipment” and that it would not “contribute to the common defense.”
The alternative viewpoint is that the Second Amendment provides an individual right that is not limited by the requirement there be a well regulated militia. This view became the contemporary understanding of the Second Amendment after the Supreme Court reconsidered the issue in D.C. v. Heller (2008). In Heller, the Court held a handgun ban in Washington, D.C. unconstitutional and declared for the first time that the “Second Amendment conferred an individual right to keep and bear arms.” Interestingly, the Court in Heller did not reverse Miller, they simply distinguished it by noting that it was permissible to ban firearms that did not have a lawful purpose.
As the Bill of Rights limits the powers of the Federal Government, there was some question about whether the Second Amendment limited the ability of states to regulate firearms. In McDonald v. City of Chicago, the Court decided that in the affirmative, with Justice Samuel Alito asserting that the fundamental right to keep and bear arms is incorporated against states as an element of the Due Process Clause of the Fourteenth Amendment.
However, the Court has recognized that this is not an unlimited right. In Heller, Justice Antonin Scalia writes that, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Justice Scalia also wrote in support of the ability of the government to prohibit “dangerous or unusual weapons.”
While it is clear some restrictions are still possible, the extent they are permissible is less clear. To date, lower courts have upheld restrictions on juvenile possession of firearms, and concealed carry permits. Other restrictions such as certain types of licensing are currently being litigated.
