For much of its early history, the Second Amendment went largely unscrutinized by the Supreme Court. The few nineteenth century cases implicating the Second Amendment established for a time that the Amendment was a bar to federal, but not state, government action,1 and the Court’s only significant Second Amendment decision in the twentieth century seemed to suggest that the right protected under the Amendment was tied only to state militia use of certain types of firearms.2 In this relative vacuum, the lower federal courts and legal scholars disputed the meaning of the Second Amendment and how it applied, if at all, to an expanding universe of federal, state, and local laws governing the private possession and sale of firearms.3

By the beginning of the twenty-first century, many of the U.S. Courts of Appeals that considered the matter concluded that the Second Amendment protected a collective right tied to militia or military use of firearms,4 while some courts and commentators maintained that the Amendment enshrined an individual right to possess firearms outside the context of militia or military activity.5 In the 2008 case District of Columbia v. Heller,6 the Supreme Court held, after a lengthy historical analysis, that the Second Amendment protects an individual right to possess firearms for historically lawful purposes, including self-defense in the home.7 The Heller majority also provided some guidance on the scope of the right, explaining that it “is not unlimited” and that “nothing in [the] opinion should be taken to cast doubt” on “longstanding prohibitions” like “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” among other “presumptively lawful” regulations.8

Two years after Heller, the Court revisited the question of whether the Second Amendment applies to the states, concluding in McDonald v. City of Chicago9 that the right to keep and bear arms is a “fundamental” right that is incorporated through the Fourteenth Amendment against the states.10 In a subsequent decision in Caetano v. Massachusetts,11 the Court issued a brief, per curiam opinion vacating a Massachusetts Supreme Court decision that had upheld a law prohibiting the possession of stun guns. The Court in Caetano reiterated that the Second Amendment applies to the states and extends to “bearable arms” that “were not in existence at the time of the founding.” 12

In the 2022 case New York State Rifle & Pistol Association v. Bruen,13 the Court considered the constitutionality under the Second Amendment of a portion of New York’s firearms licensing scheme that restricts the carrying of certain licensed firearms outside the home. In a 6-3 decision, the Court struck down New York’s requirement that an applicant for an unrestricted license to carry a handgun outside the home for self-defense must establish “proper cause,” ruling that the requirement is at odds with the Second Amendment.14 In doing so, the Court recognized that the Second Amendment protects a right that extends beyond the home15 and also clarified that the proper test for evaluating Second Amendment challenges to firearms laws is an approach rooted in text and the “historical tradition” of firearms regulation, rejecting a “two-step” methodology employed by many of the lower courts.16

Footnotes

1

United States v. Cruikshank, 92 U.S. 542 (1875); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The Fourteenth Amendment, through which the Second Amendment was later held to be applicable to the states, was ratified following the Civil War, in 1868. See infra Amdt14.1 Overview of Fourteenth Amendment, Equal Protection and Rights of Citizens.

2

United States v. Miller, 307 U.S. 174, 178 (1939) (explaining that the Second Amendment was enacted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces” and “must be interpreted and applied with that end in view” ).

3

See, e.g., Richard A. Allen, What Arms? A Textualist View of the Second Amendment, 18 Geo. Mason U. C.R. L.J. 191, 191–93 (2008) (explaining the views taken by courts and scholars following Miller); Brian L. Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U. J. L. & Liberty 48, 49 & n.4 (2008) (collecting cases on both sides of the debate).

4

E.g., United States v. Nelson, 859 F.2d 1318, 1320 (8th Cir. 1988) (stating that cases after Cruikshank had “analyzed the second amendment purely in terms of protecting state militias, rather than individual rights,” and the defendant had “made no arguments that the [challenged statute] would impair any state militia” ); Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999) ( “[T]he Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia.” ); United States v. Napier, 233 F.3d 394, 403 (6th Cir. 2000) (recognizing that as of the date of decision, the lower federal courts had uniformly held that the Second Amendment protects a collective, rather than an individual, right).

5

See, e.g., United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).

6

554 U.S. 570 (2008).

7

Id. at 595.

8

Id. at 626–27 & n.26.

9

561 U.S. 742 (2010).

10

Id. at 778, 791 (plurality op.); id. at 806 (Thomas, J., concurring in part and concurring in judgment).

11

577 U.S. 411 (2016).

12

Id. at 412.

13

No. 20-843 (U.S. June 23, 2022).

14

Id. at 62–63.

15

Id. at 23–24.

16

Id. at 8–15.