The Second Amendment to the United States Constitution is a concise but powerfully debated statement: “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.” This seemingly straightforward sentence has become the center of intense national discussion, legal scholarship, and Supreme Court scrutiny. Understanding What Is The 2nd Amendment requires delving into its historical context, exploring differing interpretations, and examining key legal precedents that have shaped its meaning in modern America.
The Text of the Second Amendment and Initial Interpretations
At its core, the Second Amendment guarantees the right to bear arms, but the scope and nature of this right have been continuously debated since its ratification in 1791. The debate primarily revolves around two competing theories: the “individual right theory” and the “collective rights theory.”
The individual right theory posits that the Second Amendment protects an individual’s right to own firearms for traditionally lawful purposes, such as self-defense. Proponents of this view argue that the phrase “the right of the people” refers to individual rights, and that the Amendment prevents legislative bodies from unduly restricting firearm ownership. They interpret the “well regulated Militia” clause as a prefatory clause that does not limit the scope of the right itself.
Conversely, the collective rights theory emphasizes the “well regulated Militia” clause. This interpretation suggests that the Second Amendment primarily protects the right of states to maintain militias, and that individuals only have a right to bear arms in connection with service in such a militia. According to this view, the Amendment was intended to prevent the federal government from disarming state militias, which were seen as essential for state sovereignty and defense against federal overreach. Therefore, under this theory, the government has broader power to regulate individual gun ownership.
Early Interpretations: United States v. Miller (1939)
For nearly 70 years, the Supreme Court’s most significant engagement with the Second Amendment was the 1939 case of United States v. Miller. In Miller, the Court considered the constitutionality of the National Firearms Act of 1934 as it applied to the possession of a sawed-off shotgun. The Court adopted a collective rights approach, ruling that the Second Amendment did not protect the possession of a sawed-off shotgun because such a weapon did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” The Court reasoned that the historical purpose of the Second Amendment was to ensure the effectiveness of state militias, and therefore, the right to bear arms was tied to militia service. This decision was widely interpreted as supporting the collective rights view and allowing for significant gun control regulations.
The Landmark Shift: District of Columbia v. Heller (2008)
The landscape of Second Amendment jurisprudence dramatically shifted in 2008 with the Supreme Court’s decision in District of Columbia v. Heller. Heller challenged a Washington D.C. law that effectively banned handgun possession in the home. In a 5-4 decision, the Court struck down the D.C. handgun ban, declaring it unconstitutional and establishing for the first time that the Second Amendment protects an individual right to possess firearms for traditionally lawful purposes, most notably self-defense in the home.
The majority opinion in Heller undertook an extensive historical analysis of the Second Amendment’s text and context at the time of its drafting. The Court concluded that “the right of the people” in the Second Amendment, as in other parts of the Constitution, refers to individual rights, not just collective rights related to militia service. While acknowledging the prefatory clause about a “well regulated Militia,” the Court stated that it announced the Amendment’s purpose but did not limit the scope of the operative clause, which guarantees the right to keep and bear arms.
The Heller decision explicitly overturned the collective rights interpretation that had been dominant since Miller. However, the Court clarified that the right to bear arms is not unlimited. It stated that “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court suggested that regulations prohibiting the possession of firearms by felons and the mentally ill, laws forbidding firearms in sensitive places like schools and government buildings, and laws regulating the commercial sale of arms would likely be constitutional. It also specifically carved out sawed-off shotguns and similar weapons as not being protected, reaffirming a narrow reading of Miller on those specific types of arms.
Incorporation to the States: McDonald v. City of Chicago (2010)
Building upon Heller, the Supreme Court in 2010 addressed whether the Second Amendment right applies to state and local governments in McDonald v. City of Chicago. McDonald challenged a Chicago handgun ban that was similar to the D.C. law struck down in Heller. Again in a 5-4 decision, the Court held that the Second Amendment right to bear arms for self-defense is applicable to the states through the Fourteenth Amendment. This process of applying the Bill of Rights to the states is known as incorporation.
While the Court agreed on the outcome in McDonald, there was no majority consensus on which clause of the Fourteenth Amendment was the vehicle for incorporation. Justice Alito, writing for a plurality, argued for incorporation through the Due Process Clause. Justice Thomas, in a concurring opinion, contended that the Privileges and Immunities Clause was the more appropriate basis. Regardless of the specific clause, McDonald solidified the Second Amendment as a fundamental right enforceable against both the federal and state governments.
Further Expansion: Caetano v. Massachusetts (2016) & Stun Guns
In a brief per curiam opinion in Caetano v. Massachusetts (2016), the Supreme Court reinforced Heller by striking down a Massachusetts law that prohibited the possession of stun guns. The Court reasoned that stun guns, like handguns, are arms in common use for self-defense and are therefore protected by the Second Amendment. While Caetano did not break new ground in Second Amendment jurisprudence, it reaffirmed the principle that the right extends to modern weapons commonly used for self-defense.
The Historical Tradition Test: New York State Rifle & Pistol Association v. Bruen (2022)
Most recently, the Supreme Court further clarified the standard for Second Amendment challenges in New York State Rifle & Pistol Association v. Bruen (2022). Bruen addressed a New York law that required individuals to demonstrate “proper cause” to obtain a concealed carry license. The Court struck down this “may-issue” licensing regime, holding that it violated the Second Amendment right to bear arms in public for self-defense.
In Bruen, the Court explicitly rejected the “means-end scrutiny” tests that many lower courts had been using to evaluate Second Amendment challenges. These tests often involved balancing the government’s interest in gun control against the burden on the Second Amendment right. Instead, the Court declared that Second Amendment analysis should be based on historical tradition. To justify a gun regulation, the government must demonstrate that the regulation is consistent with the historical understanding of the Second Amendment right. This means looking to the history of firearm regulation in the United States at the time of the Second Amendment’s ratification and in subsequent periods.
The Bruen decision represents a significant shift in Second Amendment jurisprudence, emphasizing historical analysis over balancing tests. It places a greater burden on the government to justify gun regulations by demonstrating their historical pedigree.
Implications of Bruen and Future Questions
Justice Kavanaugh, joined by Chief Justice Roberts, wrote a concurrence in Bruen to clarify the scope of the decision. They emphasized that Bruen does not invalidate “shall-issue” licensing regimes, where licenses are granted if applicants meet objective criteria like background checks and training requirements. They also suggested that other “commonsense” gun regulations, such as restrictions on firearm possession by felons and the mentally ill, and laws regulating gun sales, remain presumptively lawful.
Despite these clarifications, Bruen raises numerous questions that lower courts are now grappling with. How exactly should the historical tradition test be applied? What level of historical evidence is required to justify a gun regulation? What types of gun regulations are considered consistent with historical tradition? The answers to these questions will be developed through future litigation and will determine the practical impact of Bruen on gun control laws across the United States.
Conclusion
What is the 2nd Amendment? It is a constitutional guarantee of the right to bear arms, a right that has been interpreted and reinterpreted throughout American history. From the collective rights understanding of Miller to the individual rights approach established in Heller and expanded upon in McDonald and Bruen, the Supreme Court has progressively defined and solidified the Second Amendment’s protections. Bruen‘s emphasis on historical tradition marks the latest chapter in this ongoing evolution, promising continued debate and legal challenges as courts and lawmakers grapple with the scope and limits of the right to bear arms in the 21st century.
See also: Constitutional Amendment.
[Last reviewed in June of 2022 by the Wex Definitions Team]
