3.5 - Second Amendment: Right to Bear Arms
The Text and Historical Interpretation
The Second Amendment 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."
- The debate: the confusing wording sparked a long-running argument over whether the right is collective, tied to militia service, or individual.
- The old interpretation (until 2008): for roughly 220 years, courts treated the right to bear arms as tied only to militia service. That meant the government could restrict gun ownership for things like hunting, sport, or personal self-defense, since those weren't seen as constitutionally protected.
D.C. v. Heller (2008)
Established the current interpretation. Washington, D.C. had banned handguns and required other guns in the home to be kept unloaded and locked or taken apart. In a 5-4 ruling, the Court struck down the ban.
- New interpretation: individuals have a right to keep and bear arms for self-defense, no longer tied to militia service.
- Justice Scalia's caveat: the majority opinion made clear the federal government can still restrict and regulate that right. It's an individual right, but not an unlimited one.
- Scalia listed examples of rules that are still allowed: banning felons and the mentally ill from having guns, banning guns in sensitive places like schools and government buildings, and setting conditions on gun sales.
McDonald v. Chicago (2010)
Heller only applied to the federal government, since D.C. is a federal district and not a state. Chicago had banned almost all handguns since 1982.
- The ruling: in a 5-4 decision, the Court held that the Second Amendment right to keep and bear arms for self-defense applies to the states through the 14th Amendment's Due Process Clause, striking down Chicago's ban.
- Why it matters: it made the individual right from Heller binding on every state and city, a key example of selective incorporation (Topic 3.7).
U.S. v. Lopez (1995)
Not a Second Amendment case, but it's about guns. The Court ruled 5-4 that Congress went beyond its Commerce Clause power when it made having a gun near a school a federal crime, so many gun rules are left to the states (more in Topic 1.8).
Big picture
The Second Amendment's vague wording fueled a 220 year debate over collective versus individual rights. D.C. v. Heller settled it in 2008, establishing an individual right to bear arms for self-defense, while explicitly leaving room for the government to regulate that right. McDonald v. Chicago (2010) applied that right to the states, and U.S. v. Lopez (1995) showed that Congress's power over guns has limits too.