Interpretation & Debate

The Second Amendment

Matters of Debate

Common Interpretation

Nelson Lund Headshot
by Nelson Lund

University Professor at George Mason University University Antonin Scalia School of Law

Adam Winkler Headshot
by Adam Winkler

Professor of Law at University of California Los Angeles Law School

Modern debates about the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard. This question, however, was not even raised until long after the Bill of Rights was adopted.

Many in the Founding generation believed that governments are prone to use soldiers to oppress the people. English history suggested that this risk could be controlled by permitting the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or other emergencies, the government could rely on a militia that consisted of ordinary civilians who supplied their own weapons and received some part-time, unpaid military training.

The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

Much has changed since 1791. The traditional militia fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nation’s military establishment has become enormously more powerful than eighteenth century armies. We still hear political rhetoric about federal tyranny, but most Americans do not fear the nation’s armed forces and virtually no one thinks that an armed populace could defeat those forces in battle. Furthermore, eighteenth century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those generally thought appropriate for civilian uses. Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).

The law has also changed. While states in the Founding era regulated guns—blacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rolls—gun laws today are more extensive and controversial. Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. Although there is substantial evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to protect the right of individuals to keep and bear arms from infringement by the states, the Supreme Court rejected this interpretation in United States v. Cruikshank (1876).

Until recently, the judiciary treated the Second Amendment almost as a dead letter. In District of Columbia v. Heller (2008), however, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nation’s capital. A 5–4 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.

The dissenters disagreed. They concluded that the Second Amendment protects a nominally individual right, though one that protects only “the right of the people of each of the several States to maintain a well-regulated militia.” They also argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.

Two years later, in McDonald v. City of Chicago (2010), the Court struck down a similar handgun ban at the state level, again by a 5–4 vote. Four Justices relied on judicial precedents under the Fourteenth Amendment’s Due Process Clause. Justice Thomas rejected those precedents in favor of reliance on the Privileges or Immunities Clause, but all five members of the majority concluded that the Fourteenth Amendment protects against state infringement of the same individual right that is protected from federal infringement by the Second Amendment.

Notwithstanding the lengthy opinions in Heller and McDonald, they technically ruled only that government may not ban the possession of handguns by civilians in their homes. Heller also gave non-binding approval to a list of “presumptively lawful” regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in “sensitive places” such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.” In the years after these decisions, lower federal courts upheld most of the gun regulations they reviewed, while striking down a handful of others. Some were sustained because of Heller’s favorable comments. Many other regulations were upheld on the ground that an individual’s interest in exercising the right to arms must give way to restrictions that are substantially related to an important government interest.

In New York State Rifle & Pistol Association v. Bruen (2022), a 6-3 majority struck down a New York law that gave government officials wide discretion to reject applications from individuals to carry a handgun in public. The majority rejected the interest-balancing approach that had been adopted by the lower courts, which it thought was excessively deferential to legislative judgments. The Court instead required the government to “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” When a modern regulation addresses a social problem that existed at the founding, like interpersonal violence, Bruen requires the government to prove that the problem was addressed by a historical regulation with a comparable burden and justification.

The dissenters argued that the Second Amendment leaves the states with wide discretion to balance the costs and benefits of restrictions on the public carry of firearms. They also predicted that the majority’s nearly exclusive reliance on history would prove impractical given changes in society and firearms technology. They also observed, quite correctly, that the absence of a particular type of regulation in the past did not necessarily reflect an original public understanding that legislatures lacked such regulatory authority.

In the wake of Bruen, federal courts struck down a number of laws that had previously been accepted as constitutional, such as bans on firearms with obliterated serial numbers, firearms in youth summer camps, and firearms in the hands of domestic abusers. The Supreme Court responded in United States v. Rahimi (2024) where, by a vote of 8-1, the majority upheld a federal law forbidding a person subject to certain domestic-violence restraining orders to possess a firearm. The Court relied on founding-era laws that forbade people to terrorize the public by going about with dangerous and unusual weapons, as well as historical laws that allowed courts to require an individual to post a surety, or bond, for a short period of time when there was probable cause to suspect future misbehavior by that individual. The Court concluded that these two kinds of laws confirm a principle suggested by common sense: the government may disarm anyone who poses a clear threat of physical violence to another person.

Justice Clarence Thomas, the author of the Bruen majority opinion, dissented. He pointed out that the historical regulations cited by the majority did not stop anyone from possessing or carrying a weapon for self-defense, while the statute at issue in Rahimi strips individuals of their Second Amendment rights without requiring a criminal conviction or a history of misusing firearms. Justice Thomas therefore concluded that the burdens imposed by the regulations are not remotely comparable to the historical analogues cited by the majority.

The result is that Second Amendment doctrine remains profoundly unsettled. The Supreme Court has not offered a consistent approach to Bruen’s history and tradition test, and lower courts continue to struggle with applying it, leading to conflicting and unpredictable rulings. Whether the Court will settle on a coherent jurisprudential approach in the years ahead remains to be seen.

The Reasonable – and Unreasonable – Right to Bear Arms

Adam Winkler Headshot
by Adam Winkler

Professor of Law at University of California Los Angeles Law School

Gun regulation is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a “well regulated Militia” suggests as much. As the Supreme Court correctly noted in District of Columbia v. Heller (2008), the militia of the founding era was the body of ordinary citizens capable of taking up arms to defend the nation. While the founders sought to protect the citizenry from being disarmed entirely, they did not wish to prevent government from adopting reasonable regulations of guns and gun owners to promote public safety.

Although Americans today often think that gun control is a modern invention, the founding era had laws regulating the armed citizenry. There were laws designed to ensure an effective militia, such as laws requiring armed citizens to appear at mandatory musters where their guns would be inspected. Governments also compiled registries of civilian-owned guns appropriate for militia service, sometimes conducting door-to-door surveys. The founders had broad bans on gun possession by people deemed untrustworthy, including slaves and loyalists. The founders even had laws requiring people to have guns appropriate for militia service. The wide range of founding-era laws suggests that the founders understood gun rights quite differently from many people today. The right to keep and bear arms was not a libertarian license for anyone to have any kind of ordinary firearm, anywhere they wanted. Nor did the Second Amendment protect a right to revolt against a tyrannical government. The Second Amendment was about insuring public safety, and nothing in its language was thought to prevent what would be seen today as quite burdensome forms of regulation.   

The founding-era laws indicate why the First Amendment is not a good analogy to the Second. While there have always been laws restricting perjury and fraud by the spoken word, such speech was not thought to be part of the freedom of speech. The Second Amendment, by contrast, unambiguously recognizes that the armed citizenry must be regulated—and regulated “well.” This language most closely aligns with the Fourth Amendment, which protects a right to privacy but also recognizes the authority of the government to conduct reasonable searches and seizures. 

The principle that reasonable regulations are consistent with the Second Amendment has been affirmed throughout American history. Ever since the first cases challenging gun controls for violating the Second Amendment or similar provisions in state constitutions, courts have repeatedly held that “reasonable” gun laws—those that don’t completely deny access to guns by law-abiding people—are constitutionally permissible. For 150 years, this was the settled law of the land until recent decisions of the Supreme Court.

The Court’s first foray into modern Second Amendment jurisprudence, in the Heller case, affirmed that many types of gun control laws were presumptively lawful, including bans on possession of firearms by felons and the mentally ill, bans on concealed carry, bans on dangerous and unusual weapons, restrictions on guns in sensitive places like schools and government buildings, and commercial sale restrictions. In more recent decisions, however, the Court has significantly raised the bar for gun regulations to survive judicial scrutiny and adapted a new approach to the right to keep and bear arms that has upended the historical equilibrium on guns. In New York State Rifle and Pistol Association v. Bruen (2022), decided after the appointment of three new justices to the Court by President Donald Trump, the new majority struck down New York’s discretionary permitting law for concealed carry – despite the fact that nearly every state in the Union once had similar laws on the books. The Bruen Court rejected the traditional way of applying constitutional rights, which involved interest-balancing under tests like strict or intermediate scrutiny, and instead held that the only gun laws that were constitutionally permissible were those that were consistent with the history and tradition of gun regulation in the Eighteenth and Nineteenth Centuries. In other words, modern gun laws had to be similar to the gun laws on the books before 1900. Although society and gun technology have both changed drastically since the 1800s, such dynamics were irrelevant according to the Bruen majority.

Bruen’s history and tradition test was based on false premises. The Court suggested that the absence of similar gun regulation in the 1700s and 1800s meant that the public that adopted the Second Amendment and the Fourteenth Amendment (incorporating the Second to apply to the states) understood legislatures to lack the authority to adopt such regulation. The lack of regulation, however, may be due to any number of reasons: the underlying problem was not thought to require this type of regulation; the political will for regulation was lacking; the government lacked the resources or administrative apparatus to make such regulation effective; or no one thought even to propose such regulation. For instance, universal background checks for gun purchasers were simply not feasible prior to 1900 and their absence in the statutory codes tells us nothing about the original public understanding of legislative authority over gun purchasing. Moreover, the history and tradition test put forward by Bruen assumes that legislatures of yore were devoted to careful application of the original public understanding of the Second and Fourteenth Amendments, while today’s legislatures cannot be trusted to do the same. Besides the logical inconsistency (for which there is no historical evidence), this approach privileges legislative judgments reached at a time when those bodies were embarrassingly unrepresentative – lacking input from racial minorities and women, more than half the American population. Prior to the twentieth century, it was also thought that the Second Amendment did not apply to the states, so there was no reason for legislatures back then to consider the scope of Second Amendment protections in regulating guns.

The Bruen Court justified the turn to history and tradition as necessary to cabin judicial discretion and make judicial decision making more predictable. But the early results suggest the opposite to be true. Prior to Bruen, courts tended to apply a form of intermediate scrutiny to gun laws challenged under the Second Amendment. Under that test, the federal courts of appeals agreed on the constitutionality of most forms of gun regulation. Applying Bruen’s history and tradition test, however, has led to disagreement in the courts on the constitutionality of a wide variety of gun regulations, including age-based restrictions on firearms, regulation of ghost guns, bans on assault weapons, and prohibitions on guns in sensitive places. And there is disconcerting evidence that judicial votes in gun cases under Bruen are associated with the political party of the president who appointed the judges, at a statistically significant rate. Whatever the merit of a history and tradition approach to the Second Amendment, consistency, predictability, and limiting judicial discretion are not among them.

The Supreme Court’s decision in United States v. Rahimi (2024) may indicate that at least some of the justices in the Bruen majority are aware of these challenges. In upholding a federal law prohibiting gun possession by individuals subject to a domestic violence restraining order, the Court by an 8-1 margin affirmed the constitutionality of a law with little historical analogue in the gun regimes of pre-1900s America. While purporting to apply the same history and tradition test of Bruen, the majority’s analysis was starkly different. Instead of searching the historical record for very similar laws, as Bruen had done, Rahimi insists that the proper inquiry is to look for the “principles that underpin our regulatory tradition.” One of those principles, according to the Court, was that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” However, no laws prior to 1900 completely disarmed “threatening individuals,” nor was the problem of domestic abuse remedied by gun bans. Although the Court referenced two types of historical laws – surety laws, which required dangerous individuals to post a bond, and affray laws, that criminalized going armed in ways that terrorized the public – neither prohibited anyone from possessing and using firearms in self-defense. Moreover, the problem of domestic violence is hardly new, yet no legislature of the eighteenth or nineteenth centuries banned domestic abusers from possessing guns like the law at issue in Rahimi.

Rahimi could stand for the idea that the history and tradition test, like interest-balancing tests, can be more or less deferential to legislative judgments. Bruen’s version was more like strict scrutiny – an exacting form of review distrustful of legislatures – in that the majority seemed to look for any reason to discount historical laws similar to New York’s permitting scheme. For example, the discretionary permitting laws that were in effect throughout most of the country in the mid-twentieth century were dismissed as too new to tell us about the original public meaning of the Constitution. And outright prohibitions on public carry in U.S. territories in the mid- to late-1800s were deemed irrelevant because they applied to too small a population. Rahimi, however, takes a more deferential approach akin, perhaps, to intermediate scrutiny. Even laws that posed much smaller burdens on gun owners were sufficient to justify today’s laws. Despite the fact that the surety and affray laws did not disarm anyone, they were deemed good analogues to a complete ban on possession. And even though domestic abuse is an age-old problem, the modern-day solution of banning abusers from possession of firearms was permissible. This difference in how to think about history and tradition may explain why Justice Clarence Thomas, the author of Bruen, dissented in Rahimi and accused the majority of misapplying his test.

In any case, this much is clear. Although the right to keep and bear arms are among our oldest rights (under either the Second Amendment or similar state constitutional provisions), the judicial branches have rarely imposed significant constraints on the legislative power to regulate guns short of total bans. Now, however, all gun laws are suspect and open to constitutional challenge. Indeed, it is a fair estimation to conclude that more gun laws have been struck down since Bruen than in all of American history prior to 2008. While the Court claims to adhere to history and tradition, the course it has set out on in Second Amendment jurisprudence is without precedent.

Not a Second Class Right: The Importance of the Second Amendment Today

Nelson Lund Headshot
by Nelson Lund

University Professor at George Mason University University Antonin Scalia School of Law

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. But neither right is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have an unrestricted right to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to foster an orderly society without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If that’s enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Court’s specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

The Second Amendment also raises some issues about which reasonable people can disagree. But as with the First Amendment, there are some easy issues as well.

  • District of Columbia v. Heller (2008) provides one example. The “right of the people” protected by the Second Amendment is an individual right, just like the “rights of the people” protected by the First and Fourth Amendments. The Constitution does not say or imply that the Second Amendment protects a right of the states to maintain a militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.
  • McDonald v. City of Chicago (2010) was an easy case under the Court’s precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are “deeply rooted in this Nation’s history and tradition.” The right to keep and bear arms clearly meets this test.
  • The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The regulation struck down in New York State Rifle & Pistol Association v. Bruen (2022) gave government officials virtually unrestricted authority to deny citizens a license to carry a gun in public. It thereby abolished the constitutional right to bear arms and replaced it with an opportunity to beg a bureaucrat for the privilege of protecting oneself in public, where the overwhelming majority of violent crimes occur.
  • United States v. Rahimi (2024) presented a more difficult question. The Court upheld a federal statute that criminalized the possession of a firearm by those subject to certain domestic-violence restraining orders. Such orders can be issued by a state court judge without any evidence that its target has ever misused or even been accused of misusing or threatening to misuse a gun. By the time this case reached the Supreme Court, Rahimi himself had been accused but not convicted of several violent crimes. The Supreme Court presented no evidence that the restraining order had been based on evidence of a proclivity to misuse guns.

Justice Thomas was right that the Court misapplied Bruen’s history-and-tradition test. More importantly, whatever the merits of that legal test, Rahimi made it too easy for the government to infringe on the fundamental right of self defense, and it infringed as well on the right of state governments to decide how to enforce their criminal laws.

In most American states, including many with large urban population centers,  responsible adults have long had easy access to firearms, and been free to carry them in public. Experience has shown that these policies do not lead to increased levels of criminal violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, frequently put a stop to crimes, and they have a deterrent effect that protects countless others besides themselves. What’s more, the most vulnerable people—including women, the elderly, and those who live in high crime neighborhoods—are among the greatest beneficiaries of the Second Amendment.

Protecting the fundamental right of self-defense also serves a broader civic purpose. An armed citizenry exemplifies the spirit of courage and self-reliance that makes genuine self-government possible. Two centuries ago, Alexis de Tocqueville warned that modern democracies are prone to drift toward a soft despotism produced by dependence on government. Those who are anxious to surrender responsibility for their own safety, and to force others to do the same, are hastening this process. The Second Amendment can help produce resistance to this social pathology, and we have no good reason to promote its progress by weakening the Second Amendment.

Matters of Debate