Constitution 101: Right to Bear Arms

Are gun control laws constitutional?  The Second Amendment guarantees a right “to keep and bear arms,” but some argue that the right applies only to soldiers.  Find out in part 7 of Legal Lad’s series on the U.S. Constitution.

Adam Freedman
November 2, 2012

Constitution 101: Right to Bear Arms


Today’s Topic: Constitution 101 – The Right to Keep and Bear Arms

And now, your daily dose of legalese:  This article does not create an attorney-client relationship with any reader.  In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Constitution 101

This is the seventh installment of my new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.

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The Second Amendment

Like the First Amendment, the Second Amendment is part of the Bill of Rights – a package of liberties that was ratified a couple years after the Constitution itself.  Here’s what the Amendment says: “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.” 

For decades, scholars have argued about the real meaning of this sentence.  If you just focus on the latter part of that sentence, it appears to recognize an absolute right of individual citizens; that is, “the people.”  But then there is that somewhat unusual introductory clause about the necessity of “a well regulated militia.” 

Competing Interpretations of the Text

Some claim that the militia reference proves that the Second Amendment applies only to those who serve in the organized militia (which is now known as the National Guard).  This is called the “collective right” theory of the Second Amendment.

But others argue that the maintenance of state militias was simply one justification for the right to keep and bear arms – and, thus, the fact that the framers included this “selling point” in the preface to the amendment should not limit the scope of the right guaranteed to “the people.” This is known as the “individual right” theory of the Second Amendment. 

An Individual Right

The Supreme Court finally waded into this scholarly dispute in 2008, in a case known as Heller v. District of Columbia in which a security guard named Dick Heller sued the District of Columbia after it rejected his application to keep a handgun at his Capitol Hill home. The D.C. handgun law prohibited most citizens from having handguns in their homes, and required that all firearms be equipped with trigger locks, or be kept disassembled. In a 5-4 decision penned by Justice Scalia, the court declared that the Second Amendment establishes an individual right to keep and bear arms – and struck down D.C.’s handgun ban because it denied that individual right. 

In a later case called McDonald v. Chicago, the Court went on to hold that the right to keep and bear arms applies against the states, and not just the federal enclave of DC.  The Court held that the Second Amendment had been “incorporated” into the Fourteenth Amendment’s Due Process clause, a concept I will discuss in a later episode. 

But a Right Subject to Regulation

The Heller and McDonald decisions do not mean that all gun control laws are unconstitutional   To the contrary, as I discussed in an earlier episode, these rulings do not affect the vast majority of federal, state, and local gun laws that seek to regulate gun ownership.  That’s because the Supreme Court made it clear that the right to keep and bear arms can be subject to reasonable regulations.  The big question is: what is reasonable?  Clearly, the D.C. gun ban went too far.  But in Heller, the Supreme Court said that many gun regulations would remain “presumptively lawful,” including licensing laws, and laws prohibiting “the possession of firearms by felons and the mentally ill” and “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

To this day, therefore, gun ownership is subject to a complex web of regulations.  Be sure to check the relevant laws before purchasing any firearm.

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