BEARING ARMS
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.
It was not until 2008 that the Supreme Court definitively came down on the side of an “individual rights” theory.1 Relying on new scholarship regarding the origins of the Amendment, the Court in District of Columbia v. Heller2 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,3 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.4 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.5 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.”6 Similarly, the requirement that all firearms be rendered inoperable at all times was found to limit the “core lawful purpose of self-defense.” 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. 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. The Court, however, declined to establish the standard by which future gun regulations would be evaluated.7 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,8 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.9 Relevant to this question, the Court examined whether the right to keep and bear arms is “fundamental to our scheme of ordered liberty”10 or “deeply rooted in this Nation’s history and tradition.”11 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-defense12 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.13 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,14 the plurality also found enough evidence of then-existent concerns regarding the treatment of blacks by the state militia to conclude that the right to bear arms was also intended to protect against generally-applicable state regulation.
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Supplement Footnotes
1. E. Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (1998); R. 1 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); Note, What Did “Bear Arms” Mean in the Second Amendment?, 6 GEORGETOWN J. L. & PUB. POLICY (2008).
2. 128 S. Ct. 2783 (2008).
3. 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). 128 S. Ct. at 2790-91.
4. 128 S. Ct. at 2791-97.
5. 128 S. Ct. at 2799-2800. 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. 128 S. Ct. at 2800-01.
6. 128 S. Ct. at 2818.
7. 128 S. Ct. at 2817 n.27 (discussing non-application of rational basis review). See 7 id. at 2850-51 (Breyer, J., dissenting).
8. 130 S. Ct. 3020 (2010).
9. The portion of the opinion finding incorporation was authored by Justice Alito, 9 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.
10. Duncan v. Louisiana, 391 U. S. 145, 149 (1968).
11. Washington v. Glucksberg, 521 U. S. 702, 721 (1997)(internal quotation marks omitted).
12. McDonald, 130 S. Ct. At 3036 (noting that Blackstone had asserted that the right to keep and bear arms was “one of the fundamental rights of Englishmen”).
13. 130 S. Ct. at 3037-38.
14. 130 S. Ct. at 3132-3133 (Breyer, J., dissenting).
†CRS Annotated Constitution
The content of the CRS Annotated Constitution was prepared by the Congressional Research Service (CRS) at the Library of Congress, and published electronically in plaintext and PDF by the Government Printing Office. Dating back to 1964, the initial online annotations were published in 1992, and supplements were released in 1994, 1996, 1998, and 2000.
This edition is a hypertext interpretation of the CRS text. It links to Supreme Court opinions, the U.S. Code, and the Code of Federal Regulations, as well as enhancing navigation through linked footnotes and tables of contents.
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