Introduction Miller was subject to two possible interpretations. One, that the Second Amendment is an individual right, but that the right only extends to weapons commonly used in militias (the defendants in Miller were transporting sawed-off shotguns). The second--broader--view of Miller is that the Amendment guarantees no rights to individuals at all, and the defendants lost the case as soon as it was obvious that they were not members of a state militia. In
2008, the U. S. Supreme Court, in District of Columbia
vs. Heller,
struck down a Washington, D.C. ban on individuals
having handguns in their homes. Writing for
a 5 to 4 majority, Justice Scalia found the right
to bear arms to be an individual right consistent
with the overriding purpose of the 2nd Amendment,
to maintain strong state militias. Scalia
wrote that it was essential that the operative
clause be consistent with the prefatory clause,
but that the prefatory clause did not limit the
operative clause. The Court easily found the
D. C. law to violate the 2nd Amendment's command,
but refused to announce a standard of review to
apply in future challenges to gun
regulations. The Court did say that its
decision should not "cast doubt" on laws
restricting gun ownership of felons or the
mentally ill, and that bands on especially
dangerous or unusual weapons would most likely
also be upheld. In the 2008 presidential
campaign, both major candidates said that they
approved of the Court's decision. Heller left
open the question of whether the right to bear
arms was enforceable against state regulation as
well as against federal regulation? In 1876,
the Supreme Court said the right--if it
existed--was enforceable only against the federal
government, but there was a wholesale
incorporation of Bill of Rights provisions into
the 14th Amendment since then. In 2010, in
the case of McDonald
v Chicago, the U. S. Supreme Court held
(5 to 4) that the 2nd Amendment right has been
incorporated through the 14th Amendment's Due
Process Clause and is fully enforceable against
the states. The Court, in an opinion written
by Justice Alito, proceeded to strike down
Chicago's gun regulation insofar as it prohibited
the private possession in the home of handguns for
self-defense. Justice Thomas, concurring,
would have held the right to bear arms to be a
right protected by the Privileges and Immunities
Clause of the 14th Amendment, an approach to
applying Bill of Rights protections against the
states first rejected in the 19th-century
Slaughter-House Cases and never used since. In
2022, in New York Rifle Ass'n v Bruen,
the Court considered a New York law that made it a
crime to carry a handgun in public without a
license that could only be obtained by showing "a
special need" (living or working in a high crime
area did not suffice). By a 6 to 3 vote, the
Court ruled that New York's law violated the
Second Amendment. Justice Thomas, in his
opinion for the Court, said that when a law seems
to violated the plain text of the Second
Amendment, the law is unconstitutional unless the
government can show historical practices regulated
the use of arms that were analogous to the
regulation in question. In this case, the
Court found little support (though, it conceded,
there was some) for bans on the carrying of guns
in public in the history of the United States,
either at the time of the Amendment's adoption or
the decades that followed. Cases
|
Questions 2. If the Second Amendment does create an individual right, how broad is the right? Does it include the right to possess arms that would be useful to a militia today--hand grenades, rocket launchers, etc.? Or does it create only a right to possess arms that would have been used by a militia in 1791--muskets? Or is the right answer somewhere between these extremes? 3. The Second Amendment speaks of the right to bear arms. Does this suggest, for example, that there is no right to possess weapons that could not be carried, such as cannons? 4. If the underlying concern that inspired the Second Amendment--fear of an abusive federal government oppressing states and their citizens--no longer exists, should that affect how we interpret the Amendment? 5. What is the argument for choosing what provisions of the Bill of Rights we will give full effect? 6. Which of the following regulations of firearms is constitutional?: (1) an age restriction, (2) a four-day waiting period for purchase of a firearm, (3) a ban on the carrying of concealed weapons. 7. The Court in District of Columbia v Heller announces that there is an individual right to keep and bear arms for self-defense, but says that this right extends only to weapons in "common use" for such purposes. If many people began using machine guns for self-defense, will the weapons covered by the 2nd Amendment extend to include them? 8. The Court in D. C. v Heller suggests that concealed carry laws and laws prohibiting guns in public buildings are constitutional. Why is that so? What test should the court use to evaluate future gun regulations--strict scrutiny? intermediate scrutiny? an "undue burden" test? 9. In 2011, the Seventh Circuit struck down a Chicago ordinance that required range training before getting a gun permit. Noting that the city also bans all firing ranges in the city, the court found the range-training requirement to violate the Second Amendment. The court applied heightened scrutiny to the regulations, saying that laws that substantially burden the core right of gun ownership "will require an extremely strong public interest justification and a close fit between the government's means and its ends." Do you think the Seventh Circuit was right to apply strict scrutiny to the Chicago ordinance? (See Ezell v Chicago 7/6/11). Otis McDonald, the Chicago resident who sued for his right to possess a handgun--and won. (CNN photo) Links Second Amendment Foundation Citizen's Committee for the Right to Keep Arms National Rifle Association Handgun Control, Inc. |