Right to Bear Arms
Second Amendment
The Second Amendment protects an individual right to keep and bear arms for self-defense and other lawful purposes, though this right is not unlimited and can be subject to reasonable regulations.
Overview
The Second Amendment is one of the most debated constitutional provisions. For most of American history, courts treated it as protecting only a collective right related to militia service. In 2008, the Supreme Court recognized an individual right to firearm ownership for self-defense, though governments retain authority to regulate firearms.
This breakdown uses the TICRI Constitutional Rights methodology to provide:
- 📜 Constitutional Text
- 💭 Plain English Explanation
- ✅ What IS Protected
- ❌ What is NOT Protected
- ⚖️ Key Supreme Court Cases
- 🔍 Real-World Applications
📜 Constitutional Text
"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."
— Second Amendment, U.S. Constitution (1791)
💭 Plain English Explanation
Individuals have a constitutional right to own and possess firearms for lawful purposes, especially self-defense in the home. The "militia" language explains one purpose of the right but doesn't limit it to militia service.
This is not an unlimited right. Government can prohibit certain dangerous people from having guns (felons, mentally ill), ban certain dangerous weapons, and regulate where guns can be carried. The debate is about where to draw the line.
The Big Change - District of Columbia v. Heller (2008):
Before 2008, Second Amendment was largely interpreted as collective right tied to militia service. Heller recognized individual right to firearm ownership for self-defense, fundamentally changing Second Amendment law.
✅ What IS Protected
✓ Individual Right to Own Firearms
Individuals have right to possess firearms unconnected to militia service. This is personal right, not just collective right of states to maintain militias. Core protection is for self-defense in the home.
✓ Handguns for Self-Defense
Right to possess handguns in the home for self-defense is specifically protected. Government cannot ban entire class of arms (handguns) that are in common use for lawful purposes.
✓ Weapons "In Common Use"
Firearms in common use for lawful purposes receive Second Amendment protection. Test is whether weapon is commonly owned by law-abiding citizens for lawful purposes (hunting, sport, self-defense).
✓ Right Applies to States
Second Amendment applies to state and local governments through Fourteenth Amendment incorporation (McDonald v. Chicago). States cannot ban handgun possession in home.
✓ Carrying Outside the Home (Recent Development)
New York State Rifle & Pistol Assoc. v. Bruen (2022) recognized right to carry handgun outside home for self-defense. States cannot require applicants to show "special need" beyond general self-defense.
📜 What the Second Amendment Does NOT Say
The Text Says "Shall Not Be Infringed"
The Second Amendment contains no exceptions, qualifications, or limitations on the right to keep and bear arms. It does not say "except felons," "except certain weapons," "except in sensitive places," or "subject to reasonable regulations."
The Bruen Standard (2022)
New York State Rifle & Pistol Association v. Bruen (2022) established that any firearm regulation must have a historical analogue from 1791 (when the Second Amendment was ratified). Modern gun control measures—background checks, licensing schemes, permit requirements, weapon type restrictions—generally have no basis in the 1791 historical tradition.
No Federal Power to Regulate Types of Weapons
The Amendment protects "Arms" without qualification. There is no constitutional basis for federal laws banning specific weapon types, restricting magazine capacity, or regulating features. The "dangerous and unusual" language from Heller was dicta (non-binding commentary), not constitutional text.
No Federal Power to Regulate Carrying Weapons
The text protects the right to bear (carry) arms. Federal laws restricting how, when, or where arms may be carried have no constitutional foundation. Bruen struck down New York's requirement for "proper cause" to carry and requires historical support for any carry restrictions.
No Federal Power to Regulate Manner of Carrying
Laws prohibiting concealed carry, open carry, or prescribing specific manners of carrying are not supported by the constitutional text. Any such regulation would need to show a 1791 historical analogue under Bruen.
Category-Based Prohibitions Lack Textual Support
Blanket prohibitions on firearm possession by felons, those adjudicated mentally ill, or other categories are not enumerated in the Amendment's text. While such laws exist, they must satisfy Bruen's requirement of historical analogue from 1791. The Amendment says "the people," not "some people."
⚖️ Key Supreme Court Cases
District of Columbia v. Heller (2008)
Individual Right Recognized — Second Amendment protects individual right to possess firearms for lawful purposes, especially self-defense in the home. Struck down D.C.'s handgun ban and trigger-lock requirement.
Landmark 5-4 decision fundamentally changing Second Amendment law. Rejected "collective right" interpretation in favor of individual right. But emphasized right is "not unlimited" and many regulations remain valid.
McDonald v. City of Chicago (2010)
Second Amendment Applies to States — Incorporated Second Amendment against states through Fourteenth Amendment Due Process Clause. States and cities must respect individual gun rights same as federal government.
Extended Heller to state and local governments. Chicago's handgun ban unconstitutional. Made Second Amendment enforceable nationwide, not just against federal government.
New York State Rifle & Pistol Assoc. v. Bruen (2022)
Right to Carry Outside Home — Second Amendment protects right to carry handgun in public for self-defense. Struck down New York's requirement to show "proper cause" for concealed carry permit. Established "text, history, and tradition" test for gun regulations.
Major expansion of gun rights. States can still require permits but cannot make applicants prove special need. Rejected "means-end" scrutiny in favor of historical analysis: regulation must be consistent with Nation's historical tradition.
United States v. Miller (1939)
Pre-Heller Case — Upheld federal law prohibiting sawed-off shotguns. Second Amendment protects only weapons with "reasonable relationship" to militia use. This was dominant interpretation until Heller changed the framework.
For decades, Miller was read to support collective-right view of Second Amendment. Heller reinterpreted Miller as supporting "common use" test: weapons in common use for lawful purposes are protected.
United States v. Cruikshank (1876)
Early Limiting Case — Second Amendment only restricts federal government, not private action or states. This limited the Amendment's reach for over a century until McDonald incorporated it against states in 2010.
Part of post-Civil War cases that narrowly interpreted Reconstruction Amendments. Limited Second Amendment to federal action. McDonald overruled this aspect in 2010.
🔍 Real-World Applications
The New Test After Bruen: "Text, History, and Tradition"
Major Change: Bruen rejected interest-balancing tests in favor of historical analysis. To justify gun regulation, government must show it's consistent with Nation's historical tradition of firearm regulation.
This shifts burden to government to find historical analogues to modern regulations. Many gun control laws now face renewed challenges under this framework.
"Assault Weapons" Bans
Highly contested issue. Some states ban AR-15s and similar semi-automatic rifles. Debate centers on whether these are "dangerous and unusual" or "in common use" for lawful purposes. Post-Bruen, these bans face increased legal scrutiny.
Red Flag Laws
Extreme Risk Protection Orders allow temporary firearm removal from persons deemed dangerous. Require due process (hearing, burden of proof). Constitutional questions about due process and Second Amendment rights remain unsettled.
Universal Background Checks
Federal law requires background checks for commercial sales. Some states extend to private sales. Generally considered constitutional under "longstanding" prohibition on felons possessing firearms. Enforcing through commercial sale regulations is presumptively lawful.
Concealed vs. Open Carry
Bruen protects right to carry, but states can regulate manner. Some states allow open carry but restrict concealed carry, or vice versa. Must allow some form of public carry, but can regulate how it's done.
Evolving Area of Law
Second Amendment law is rapidly developing. Heller (2008), McDonald (2010), and Bruen (2022) are recent cases. Many questions remain unanswered: constitutionality of age restrictions, large-capacity magazine bans, assault weapon bans, and other regulations. Expect continued litigation.
Key Takeaways
- ✓Individual right to possess firearms for lawful purposes, especially self-defense in the home
- ✓Right to carry handguns in public for self-defense (Bruen 2022)
- ✓Firearms "in common use" for lawful purposes are protected; "dangerous and unusual" weapons are not
- ✓Many regulations remain constitutional: felon prohibitions, sensitive place restrictions, commercial regulations
- ✓New "text, history, and tradition" test requires government to show historical basis for gun regulations
- ✓Rapidly evolving area of law with many unsettled questions about specific regulations