Second Amendment

Description: Amendment that guarantees the right of people to keep and bear arms.

Significance: The Supreme Court’s decisions on the Second Amendment have historically been narrowly drawn, leaving the broad issues of gun control and the intent of the Second Amendment unresolved.

The Second Amendment to the US Constitution states: “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.” In comparison to other constitutional guarantees, such as freedom of speech, the Supreme Court historically had little to say about the Second Amendment. The Court generally upheld criminal laws regarding firearms, but it did so without attempting to establish a guiding interpretation of the amendment. Although the Court overturned two federal gun laws in two decisions during the 1990s, it did not rule on the laws as they pertained to the Second Amendment. Rather, in keeping with the Court’s states’ rights conservatism under Chief Justice William H. Rehnquist, the Court ruled on the laws as they pertained to the limits of the federal government’s power to impose its laws on state and local authorities.

In Printz v. United States (1997), Jay Printz, the sheriff of Ravalli County, Montana, challenged a federal law that required him and other chief law enforcement officers to perform background checks on people who sought to buy guns in their jurisdictions. The Court accepted his argument that the federal government may not compel the state chief law enforcement officers to implement federal regulations, overturning the interim provision of the federal Brady Handgun Violence Prevention Act that required local law enforcement agencies to conduct background checks until the US attorney general could establish a federal system for that purpose. Before that, United States v. Lopez (1995) reached the Court after a student, Alfonso Lopez, was charged with violating the Gun-Free School Zones Act of 1990 when he carried a concealed handgun into a high school. The Court upheld an appellate ruling that the federal act exceeded the authority of Congress to legislate under the interstate commerce clause. To allow the act to stand, the Court wrote, would “require this Court to pile inference upon inference in a manner that would bid fair to convert congressional commerce clause authority to a general police power of the sort held only by the States.” The Court's rulings in Printz and Lopez, which were predicated on the necessary and proper clause and the commerce clause in Article I of the Constitution, respectively, did not address the Second Amendment or rule on how it is to be interpreted.

However, three landmark cases decided by the Supreme Court under Chief Justice John Roberts did directly address the central meaning of the Second Amendment. District of Columbia v. Heller (2008) was the first Supreme Court case in seventy years regarding the Second Amendment's protections for an individual's right to keep and bear arms. The Heller ruling struck down portions of the Firearms Control Regulations Act of 1975, which barred residents of the District of Columbia from owning handguns, automatic firearms, and high-capacity semiautomatic firearms. A group of DC residents filed suit that the law was a violation of their Second Amendment rights, but a federal trial court held that the Second Amendment applied only to militias and therefore did not apply to private gun ownership. In a 5–4 ruling, the Court held that the Second Amendment applies to federal enclaves such as the District of Columbia and that it protects the right to bear arms for individuals even if they do not belong to a militia. In a similar ruling in McDonald v. Chicago (2010), the Court held that the Second Amendment applies to individual states as well as federal enclaves because it is incorporated by the Fourteenth Amendment's due process clause.

New York State Rifle & Pistol Association, Inc. v. Bruen (2022) further strengthened the Second Amendment by declaring an existing New York state law that required a prospective concealed carry license applicant to provide "proper cause," or a special condition as to why the candidate needed a firearm license that separated them from the average citizen, as being unconstitutional. In the decision, which ultimately declared that the carrying of a handgun in public was a constitutional right, the Supreme Court argued in favor of "shall-issue" licensing systems, in which states provide licenses to those who meet objective criteria, while criticizing "may-issue" licensing systems, in which state authorities have some say in whether otherwise qualified candidates can receive a license or not. At the time of the decision, many experts and news outlets argued that this decision allowed for further expansion of the Second Amendment in America by providing a basis on which may-issue systems could be legally challenged.

Early Decisions

In United States v. Cruikshank (1876), William Cruikshank, a member of the Ku Klux Klan, was tried in federal court for violating the federal civil rights laws protecting the African American victims of a murderous riot he led. The trial court found Cruikshank guilty of conspiring to deprive African Americans of their right to bear arms. The Supreme Court, however, ruled in favor of Cruikshank, arguing that the Second Amendment applied only to Congress and that people must look to local governments for protection against violations of their rights. The Cruikshank decision, like the Slaughterhouse Cases (1873), interpreted against use of the Fourteenth Amendment as a means to enforce the Bill of Rights at the state and local level. This interpretation of the Fourteenth Amendment, however, was subsequently abandoned in other decisions not relating to the Second Amendment.

The next major Second Amendment case was Presser v. Illinois (1886). Herman Presser led an armed group called the Lehr und Wehr Verein (Educational and Protective Association) on a march through the streets of Chicago. Presser argued that the Illinois law under which he was convicted was superseded by various provisions of federal law, including the Second Amendment. The Court upheld his conviction, arguing that to accept Presser’s interpretations would amount to denying the rights of states to disperse mobs.

Indications of Ambivalence

The Court in United States v. Miller (1939) upheld the federal regulation against a shotgun’s having a barrel less than eighteen inches long on the basis that the Court had no indication that such a weapon “was . . . ordinary military equipment or . . . could contribute to the common defense.” It may be argued, therefore, that Miller indirectly defends the principle that a firearm that has some reasonable relationship to the efficiency of a well-regulated militia is protected by the Constitution. However, challenges to laws limiting civilian possession of machine guns and assault rifles, which are military weapons, have not met with success. A similar ambivalence can be inferred in Cases v. United States (1943), in which a lower court noted, “apparently . . . 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 . . . 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.” The Court made this observation, however, when declining to review a challenge to a provision of the Federal Firearms Act.

In Quilici v. Village of Morton Grove (1983), a circuit court refused to review a Second Amendment case and let stand a decision upholding an ordinance in Morton Grove, Illinois, banning possession of handguns. This decision was often cited to bolster the argument that the individual ownership of firearms was not a constitutional right, but the Court's rulings in District of Columbia v. Heller and McDonald v. Chicago have made such arguments moot.

Bibliography

Bijlefeld, Marjolijn, ed. The Gun Control Debate: A Documentary History. Westport: Greenwood, 1997. Print.

Carter, Gregg Lee, ed. Guns in American Society: An Encyclopedia of History, Politics, Culture, and the Law. 2nd ed. Santa Barbara: ABC-CLIO, 2012. Print.

Cornell, Saul, and Nathan Kozuskanich, eds. The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller. Amherst: U of Massachusetts P, 2013. Print.

Cottrol, Robert J., ed. Gun Control and the Constitution: Sources and Explorations on the Second Amendment. New York: Garland, 1993. Print.

de Vogue, Ariane, and Tierney Sneed. “Supreme Court Says Constitution Protects Right to Carry a Gun outside the Home.” CNN, 23 Jun. 2022, cnn.com/2022/06/23/politics/supreme-court-guns-second-amendment-new-york-bruen/index.html. Accessed 24 Aug. 2022.

Halbrook, Stephen P. That Every Man Be Armed: The Evolution of a Constitutional Right. Albuquerque: U of New Mexico P, 1984. Print.

Henigan, Dennis A. Guns and the Constitution: The Myth of Second Amendment Protection for Firearms in America. Northampton: Aletheia, 1996. Print.

Malcolm, Joyce Lee. To Keep and Bear Arms: The Evolution of an Anglo-American Right. Cambridge: Harvard UP, 1996. Print.

Waldman, Michael. Second Amendment: A Biography. New York: Simon, 2014. Print.