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The Bill of Rights, 2nd Edition

Second Amendment

by Eric Howard

Description: Amendment that provided the right of the people to keep and bear arms, in large part because of the need to maintain a well-regulated militia.

Significance: The Supreme Court has held that the Amendment protects a personal right (or liberty) to own and use firearms, but the Court has also recognized that this right, like all provisions in the Bill of Rights, has limits. In order to promote public safety and order, government may institute reasonable regulations and restrictions. In 2008, the Supreme Court ruled that the amendment protects a personal right, and in 2010 the Court determined that the right was fundamental, so that it is binding on the states.

The Second Amendment to the U.S. 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 controversial constitutional guarantees, such as freedom of speech, the Supreme Court has had little to say about the Second Amendment. The Court has generally upheld criminal laws regarding firearms, but it has done so without attempting to establish a guiding interpretation of the amendment. Although the Court overturned two federal gun laws in two decisions during the 1990’s, 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 to perform background checks on people in his jurisdiction who sought to buy guns. The Court accepted his argument that the federal government may not compel the states to implement federal regulations, overturning the portion of the federal act that required local law enforcement agencies to conduct background checks. 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.” Printz and Lopez did not address the Second Amendment or rule on how it is to be interpreted. Nor is the controversy settled by a review of Court decisions touching on the Second Amendment.

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, has since been 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 has been cited to bolster the argument that the individual ownership of firearms is not a constitutional right, but the fact that the Court has done nothing to change the existing laws that allow individual possession of firearms undermines such an argument.

Two Landmark Decisions

Early in the twenty-first century, the Supreme Court clarified two longstanding controversies concerning the interpretations of the Second Amendment. The first case, District of Columbia v. Heller (2008) was about a law in the nation’s capital that made it impossible to legally own handguns and required rifles and shotguns to be kept “unloaded and disassembled or bound by a trigger lock.” Dick Heller and five other resident of the city filed a lawsuit arguing that the restrictions violated their constitutional right to keep and bear arms.

The Supreme Court agreed with their argument, voting 5-4 that the Second Amendment protects a personal right to self-defense in one’s home. This right, moreover, is unconnected with service in the military. Writing for the majority, Justice Antonin Scalia explained that the amendment’s prefatory clause announces a purpose, but that it does not limit the scope of the second clause, which is the operative clause. Chicago’s handgun ban was unconstitutional because it prohibited an entire class of “arms” that Americans overwhelmingly chose for self-defense. Likewise, the trigger-lock requirement made it impossible for a citizen to prepared for an invasion into the home. But Scalia found that the right was not unlimited. The government, therefore, could reasonably prohibit felons and suspected terrorist from possessing firearms, and it could prohibit some dangerous weapons, such as machine guns. The decision did not specify whether lower courts should evaluate restrictions by strict scrutiny or by a lower standard of review.

The city of Chicago had a law similar to the one struck down in Heller, disallowing the registration of handguns. But the Heller decision applied only to laws enacted by the federal government and federal enclaves. Otis McDonald, a 76-year-old retired resident of the city, filed a lawsuit arguing that he should have the same rights as people living in the nation’s capital. In the resulting case, McDonald v. Chicago (2010), the Court ruled 5-4 that the Second Amendment’s protection (as defined in Heller) is incorporated by the Due Process Clause of the Fourteenth Amendment, thereby making it fully applicable to state and local governments. Writing a plurality opinion, Justice Samuel Alito based the ruling on the doctrine of “selective incorporation,” which required the amendment to be either “fundamental” to the nation’s “scheme of ordered liberty” or else “deeply rooted in the nation’s history and tradition.” Justice Clarence Thomas agreed with the outcome, but he wanted to base incorporation on the Privileges or Immunities Clause of the Fourteenth Amendment.

The National Rifle Association and other proponents of Second Amendment rights were delighted with the Heller and McDonald decisions, although they were disappointed that the Supreme Court had not specified that regulations of firearms would be judged according to the strict scrutiny standard. Wayne LaPierre, Vice President of the NRA, cautioned that the organization had “a lot of work ahead” in attempting to overturn gun restrictions that remained in place. As a result of the decisions, a number of cities revised their gun control measures. For example, three Illinois municipalities that had previously banned all handguns rescinded these bans. By 2012, lower federal courts had heard at least 80 different challenges to a large variety of gun control regulations. The courts found that most of these regulations were consistent with the right to keep and bear arms for self-protection and other lawful purposes.

Citation Types

Type

Format

MLA 9th

Howard, Eric. "Second Amendment." The Bill of Rights, 2nd Edition, edited by Thomas Tandy Lewis, Salem Press, 2017. Salem Online, online.salempress.com/articleDetails.do?articleName=BOR2e_0007.

APA 7th

Howard, E. (2017). Second Amendment. In T. T. Lewis (Ed.), The Bill of Rights, 2nd Edition. Salem Press. online.salempress.com.

CMOS 17th

Howard, Eric. "Second Amendment." Edited by Thomas Tandy Lewis. The Bill of Rights, 2nd Edition. Hackensack: Salem Press, 2017. Accessed December 14, 2025. online.salempress.com.

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