One of the most controversial civil liberties guaranteed in the Constitution is the right to bear arms. For most of U.S. history, the government has regulated the kinds of firearms that can be owned and who can own them. More recently, a series of court decisions as well as state legislative actions have sought to tighten requirements for firearms purchase and ownership, and in some cases, loosen firearms regulations. How extensive is the right to bear arms?
What does the Second Amendment say about the right to bear arms?
The Second Amendment to the Constitution states that “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 language within the Amendment has been debated – is the right to bear arms intended for militias or all people? Do these rights pertain to all firearms, or only certain kinds? Can firearm ownership be restricted, as other civil liberties are, or are guns a unique situation in American constitutional law?
Have interpretations of the Second Amendment changed over time?
Yes. During the 1800s and 1900s, the Second Amendment was interpreted according to the ‘collective right’ model of gun ownership. In this model, the Supreme Court interpreted the 2nd Amendment as protecting an individual’s right to serve in a collective militia and to own a gun for that purpose, but not for the purpose of individual protection only.
This interpretation began to change in the 1960s, with some legal scholarship suggesting the individual right interpretation, and maybe responding to high-visibility gun-related events like the assassination of JFK. Beginning in the 1970s, some legal scholars began to interpret the amendment as a protection against the potential for U.S. federal government overreach itself, sometimes called the ‘insurrectionist’ model. At the same time, individuals and groups supporting broad gun rights brought lawsuits against state and local regulations.
The Supreme Court has ruled only five times on the Second Amendment – once in 1886, and four times since 2008. In 2008, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to own a gun even when unconnected to a militia. In this ruling, the Court also held that these rights are not absolute, confirming that there is room for laws that restrict gun ownership.
In 2010, the Supreme Court ruled in McDonald v. City of Chicago that the Second Amendment applies to state and local governments as well as the federal government. The City of Chicago had passed a law limiting the possession and carry of a handgun within city limits. The Supreme Court ruled that this ban limited individuals’ constitutional right to self-protection under the Second Amendment as interpreted in the Heller decision.
In 2016, the Supreme Court ruled unanimously in Caetano v. Massachusetts that individuals have a constitutional right to forms of “bearable arms” beyond just those that would have been available at the time of the writing of the Second Amendment. This case related to the possession of a stun gun.
Finally, in 2022, the New York State Rifle and Pistol Association, Inc. v. Bruen Supreme Court decision changed the test of whether state and local laws violate the Second Amendment. The ruling found that New York’s gun control laws requiring a person to show proper cause to obtain a license to buy a firearm was in violation of the 14th Amendment, which in part makes the 2nd Amendment applicable to the states. The Court held that a citizen need not demonstrate cause to exercise their right to self defense by purchasing a firearm, and that open carry of a firearm cannot be restricted except in instances where it incites fear and intimidation.
What gun ownership restrictions exist in the U.S. today?
Congress has passed a handful of laws to tax the sale of firearms and to establish regulations for the ownership and use of firearms. The National Firearms Act (NFA) of 1934 requires the sale of certain types of firearms (including sawed-off shotguns, machine guns, and silencers) be registered with the Secretary of the Treasury. The Gun Control Act of 1968 narrowed the definition of who could own, manufacture, or sell a gun.
States and local governments can also create ownership restrictions. For example, states can determine whether background checks or permits are required for handgun purchase, who can or cannot buy a gun based on the person’s past, age restrictions, and what will be required for licenses and training. Since 2008, many state and local gun laws have been upheld as constitutional, including laws restricting the concealed and open carry of loaded guns in public; bans on assault weapons, large capacity magazines, and silencers; prohibitions on dangerous people possessing guns; firearm design safety standards; safe storage requirements; waiting period laws; and private-sale background checks and licensing laws.
In some states, local governments have jurisdiction to regulate gun carriage and usage. For example, the City of New York issues its own handgun, rifle, and shotgun permits separately from the New York State government. To own or carry a firearm in the City, these municipal permits are required in addition to state permits.
The chart below shows state regulations of handgun carry. Twenty-six states, in black, do not have permit requirements for carrying handguns in public, and twenty-four states, in gray, require permits to open- or conceal-carry a gun.
What are current proposals for changing gun rights?
States have widely varying approaches to gun control legislation. In 2021, a trend of enacting so-called “constitutional carry” laws picked up across the U.S., mostly but not exclusively in more conservative jurisdictions. In these states, no permit is required for a person of legal age (usually 18 or 21) to purchase a handgun or openly carry it in public. In some instances, additional restrictions apply, such as a permit requirement for concealed carry or purchasing restrictions based on criminal history. Currently, 26 states have no permit requirement for concealed carry, and an additional 13 require a permit for concealed carry.
Some states, such as New Jersey, require residents to file for a permit and complete additional steps in order to carry a concealed handgun. This process typically takes between 30 to 120 days. An individual must undergo a national background check, a firearms safety class, pass a field safety test including safe handling, loading and unloading, unholstering, and minimum marksmanship skills, and not possess certain disabilities. In the case of New Jersey, state law also restricts such possession in certain places, including zoos, public parks, public libraries, museums, bars, healthcare facilities, schools, and childcare facilities.
The federal Bipartisan Safer Communities Act, signed into law on June 25, 2022, narrows some definitions of who is allowed to purchase, own, or sell a firearm, including minors with histories of mental health issues, and dating partners with histories of domestic violence.
Further Reading
Constitution Annotated. (n.d.). Second Amendment to the United States Constitution. https://constitution.congress.gov/constitution/amendment-2/, accessed 06/20/2023.
Cress, L. D. (1984) An Armed Community: The Origins and Meaning of the Right to Bear Arms. The Journal of American History, 71(1), 22–42. https://doi.org/10.2307/1899832.
Foster, M. A. and Krouse, W. J. (2022). US Gun Policy: Framework and Major Issues. Congressional Research Service. https://crsreports.congress.gov/product/pdf/IF/IF11038.
Sources
What does the Second Amendment say about the right to bear arms?
Constitution Annotated. (n.d.). Second Amendment to the United States Constitution. https://constitution.congress.gov/constitution/amendment-2/, accessed 06/20/2023.
Levinson, S. (1989). The embarrassing second amendment. The Yale Law Journal 99.3, 637-659. https://doi.org/10.2307/796759.
Have interpretations of the Second Amendment changed over time?
District of Columbia v. Heller (No. 07-290). https://www.law.cornell.edu/supct/html/07-290.ZS.html, accessed 06/20/2023.
Giffords Law Center to Prevent Gun Violence. (n.d.). The Supreme Court & the Second Amendment. https://tinyurl.com/49zxhmrf, accessed 06/20/2023.
Charles, Jake. (2020, January 8). Caetano’s Erasure. Duke Center for Firearms Law. https://firearmslaw.duke.edu/2020/01/caetanos-erasure/.
Supreme Court of the United States (2022, June 23). New York State Rifle & Pistol Association, Inc, Et Al. v. Bruen, Superintendent of New York State Police, Et Al. https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf.
Presser v. Illinois, 116 U.S. 252 (1886). Justia U.S. Supreme Court. https://supreme.justia.com/cases/federal/us/116/252/, accessed 06/20/2023.
Bogus, C. T. (2000). The history and politics of second amendment scholarship:
primer. Chicago-Kent Law Review, 76(1), 3-26. http://tinyurl.com/55uh7uaj, accessed 2/7/24.
Does the Second Amendment mean that gun ownership and possession cannot be restricted?
Cress, L. D. An Armed Community: The Origins and Meaning of the Right to Bear Arms. The Journal of American History, 71(1), 22–42. https://doi.org/10.2307/1899832.
Giffords Law Center to Prevent Gun Violence. (n.d.). The Supreme Court & the Second Amendment. https://tinyurl.com/49zxhmrf, accessed 06/20/2023.
What gun ownership restrictions exist in the U.S. today?
Cress, L. D. (1984) An Armed Community: The Origins and Meaning of the Right to Bear Arms. The Journal of American History, 71(1), 22–42. https://doi.org/10.2307/1899832.
Everytown Research & Policy. (2023, January 12). Compare State Gun Laws. https://everytownresearch.org/rankings/compare/?states=CA%2CAL, accessed 06/20/2023.
Foster, M. A. and Krouse, W. J. (2022). US Gun Policy: Framework and Major Issues. Congressional Research Service. https://crsreports.congress.gov/product/pdf/IF/IF11038.
Pomeranz, J. L., Silver, D., & Lieff, S. A. (2021). State gun-control, gun-rights, and preemptive firearm-related laws across 50 US states for 2009–2018. American journal of public health, 111(7), 1273-1280. https://doi.org/10.2105/ajph.2021.306287, accessed 2/7/24.
New York City Police (2023). Gun Laws. Official Website of the City of New York. https://portal.311.nyc.gov/article/?kanumber=KA-01307.
Bucholz, K. (2023). Which States Allow the Permitless Carry of Guns? Statista. http://tinyurl.com/yc6afse3, accessed 2/6/2024. (Chart Data).
What are current proposals for expanding gun rights? For restricting?
Buchholz, K. (2023). Which States Allow the Permitless Carry of Guns? Statista. http://tinyurl.com/yc6afse3, accessed 2/6/2024.
U.S. Congress. (2022). S. 2938. Bipartisan Safer Communities Act. https://www.congress.gov/bill/117th-congress/senate-bill/2938/text.
Contributors
Zul Norin (Intern) is a senior at Vanderbilt University majoring in Economics and is expected to graduate in May 2024.
Mary Stafford (Intern) is majoring in Public Policy Analysis and pursuing a certificate in Public and Civic Engagement at Indiana University. In addition to her role at Policy vs Politics, she serves on the board of directors for Monroe County Court-appointed Special Advocates and is in the process of applying to law school.
Griffin Reid (Team Lead) is a graduate student in the Department of Political Science at Indiana University and holds a Masters in Political Science from Indiana University – Indianapolis. His research is in American politics, legislative institutions, and electoral behavior. He is currently Press Secretary for the Indiana Republican Party.
Cassandra Kathri (Subject Matter Expert) is Professor of Political Science at Lone Star College in Houston, Texas. She received her PhD from the University of Houston. Her research interests are in American politics, especially foreign policy.
Dr. Nick Clark (Content Lead) is Professor of Political Science at Susquehanna University, where he is also Department Head in Political Science and Director of the Public Policy Program and the Innovation Center. He received his Ph.D. from Indiana University and researches political institutions, European politics, and the politics of economic policy.
Dr. William Bianco (Research Director) received his PhD in Political Science from the University of Rochester. He is Professor of Political Science and Director of the Indiana Political Analytics Workshop at Indiana University. His current research is on representation, political identities, and the politics of scientific research.
Published: 3/12/24