A Right to Bear Arms?
The Issue:  Does the Second Amendment Give Individuals a Right to Bear Arms?
The Second Amendment 
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.

LINK: Questions about meaning of text

Introduction
The meaning of the Second Amendment depends upon who you talk to.  The National Rifle Association, which has the Second Amendment (minus the militia clause) engraved on its headquarters building in Washington, insists that the Amendment guarantees the right of individuals to possess and carry a wide variety of firearms.  Advocates of gun control contend that the Amendment was only meant to guarantee to States the right to operate militias.  For almost seventy years following its cryptic decision of U. S. vs. Miller in 1939, the Court ducked the issue, finally to resolve the question in its much anticipated 2008 decision, District of Columbia v Heller

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.

Cases
United States vs. Miller (U.S. 1939)

District of Columbia vs Heller (U.S. 2008)
McDonald v Chicago (U.S. 2010)


District of Columbia officials hold a press conference to denounce the Court of Appeals decision in Parker v D. C.

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Justice Antonin Scalia, for the majority in District of Columbia v Heller (U. S. Supreme Court 2008)
Supreme Court Decides Second
Amendment Case

The Supreme Court votes 5 to 4 to strike down a
Washington, D. C. ban on the private possession of handguns.
 Justice Scalia authors majority opinion.


In District of Columbia v. Heller (2008) the Court considered the following question: Do D.C. Code Section 7-2502.02(a)(4), which generally bars the registration of handguns; Section 22-4504(a), which bars carrying a pistol without a license; and Section 7-2507.02, which requires that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? 
The Court concluded that the Second Amendment does establish an individual right to keep and bear arms for self-defense and hunting.  The Court concluded that the D.C. gun ban could not stand.  At the same time, the Court recognized that the government can regulate gun rights.  The Court said its decision should not be interpreted to question the right of government to: prohibit felons and the mentally ill from owning weapons, prohibit guns in schools or public buildings, ban certain categories of guns not commonly used for self-defense, and to establish certain other conditions on gun ownership.


Opinion of the Court (edited version)
District of Columbia v Heller (2008)

Full Opinion

Opinion below of the D. C Circuit:
Parker v District of Columbia (2007)



Questions
1. Does the historical evidence support the conclusion that the Second Amendment guarantees the right of individuals to possess firearms?
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
Sources on the Second Amendment (UCLA Law)
Second Amendment Foundation
Citizen's Committee for the Right to Keep Arms
National Rifle Association
Handgun Control, Inc.
 Exploring Constitutional Conflicts Homepage