3.5 Second Amendment: Right to Bear Arms

The Second Amendment reads: “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 much of the 20th century, a key question was how the first clause relates to the second. One reading says the amendment protects a right tied to service in a state militia. The other says it protects an individual right, and the militia clause explains one purpose without limiting it. Heller resolved this for the courts.

Washington, D.C., banned handgun possession in the home and required other guns to be kept unloaded and disassembled or trigger-locked. Dick Heller, a special police officer who carried a gun on duty, wanted to keep one at home.

In a 5–4 decision, the Court struck down the ban. Justice Antonin Scalia's majority opinion held that the Second Amendment protects an individual right to keep and bear arms, unconnected to militia service, and that self-defense, especially in the home, is at its core. The opinion also said the right isn't unlimited: it listed long-standing restrictions, such as bans on possession by felons and in sensitive places like schools, as presumptively lawful.

Because D.C. is a federal district, Heller didn't settle whether the right limits state and local governments.

Facts: Chicago and a nearby suburb had handgun bans similar to D.C.'s. Otis McDonald, a retired resident of a Chicago neighborhood with high crime, wanted a handgun at home for protection and sued.

Holding: In a 5–4 decision, the Court ruled that the Second Amendment right recognized in Heller applies to state and local governments.

Reasoning: The right to keep and bear arms for self-defense is fundamental to the American scheme of ordered liberty and deeply rooted in the nation's history, so it is incorporated through the Fourteenth Amendment's Due Process Clause. (One justice in the majority reached the same result through the Fourteenth Amendment's Privileges or Immunities Clause instead.)

Significance: McDonald is a selective incorporation case (3.7). It means state and local gun laws must respect the Second Amendment, just as they must respect free speech.

In New York State Rifle & Pistol Association v. Bruen (2022), the Court struck down a New York law that required applicants to show special need to carry a handgun in public, and said gun laws must fit the nation's historical tradition of firearm regulation. In United States v. Rahimi (2024), it upheld a federal law disarming people under domestic violence restraining orders. Courts now evaluate gun laws by comparing them to historical regulations.

Supporters of broad gun rights argue that the amendment protects self-defense, that the right belongs to “the people” like other rights in the Bill of Rights, and that restrictions burden law-abiding citizens. Supporters of more regulation argue that the militia clause signals a narrower purpose, that gun violence is a serious public safety problem, and that elected officials should have room to respond. Both sides cite history and public safety. On the exam, focus on what the cases held, not on which side is right.