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.
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.
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.