The Second Amendment and Gun Rights
The Second Amendment was the second-last amendment in the Bill of Rights to receive a definitive interpretation by the Supreme Court. Various state and federal laws governed gun possession, but the issue of their constitutionality did not reach the Court until 2008. When a federal security guard–who carried a gun every day while on the job–was denied a permit to have a pistol in his home, the defenders of gun rights knew they had found a sympathetic petitioner to present their claim. Chapter one discusses how the Court established the basic meaning of this amendment. The Court declared in District of Columbia v. Heller that at the very least, the Second Amendment meant that a person had the right to own an operable handgun and keep it in his home. Very quickly, defenders of gun rights rushed to get a challenge to state guns laws before the Court, and in 2010 the Court declared the right incorporated–although it could not muster a majority for how it was incorporated.
Chapter two examines more recent cases that have sought to expand this right. In 2022, the Court held that the Second Amendment protects a person’s right to carry a handgun outside the home, although states do have the power to place limits on where that weapon may be carried. In 2024, th Court held that states may ban gun possession by persons subject to a restraining order for domestic abuse. In deciding these cases, the Court focused on the history of gun regulation, searching for equivalent restrictions in the past. This is similar to how the Court has interpreted the Seventh Amendment to jury trials in civil cases. The difference is that the Seventh Amendment states that this right “shall be preserved,” explicitly indicating that a historical-equivalent test should apply. There is no such language in the Second Amendment, only a preface about the importance of state militias, but since 2008 the Court has basically ignored this preface.
Be warned that the cases in this unit are long and filled with historical details. The full opinions are even longer and filled with even more history. While this is a fascinating subject for some, others might find these cases tedious and difficult to follow.
