The Second Amendment at the Supreme Court

The Court declined to hold that the Second Amendment protects a right to possess a short-barreled shotgun, finding insufficient evidence to show that such a firearm “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” The Court determined that “it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.” Notably, Miller’s attorney neither participated in oral argument nor filed a brief with the Court before it issued the opinion.

Staples did not directly involve a Second Amendment question, but rather dealt with whether the government must prove that a defendant accused of illegally possessing an unlicensed machine gun knew that the weapon in his possession had characteristics that required it to be registered under the National Firearms Act. However, in its analysis, the Court affirmed that “there is a long tradition of widespread lawful gun ownership by private individuals in this country,” and that “despite their potential for harm, guns generally can be owned in perfect innocence.” Moreover, the Court stated that, unlike machine guns or the sawed-off shotguns at issue in Miller, semi-automatic rifles—like the AR-15 owned by Staples—“traditionally have been widely accepted as lawful possessions.”

In this landmark decision, the Supreme Court for the first time addressed in depth the most important question about the Second Amendment’s nature: Does it protect an individual right of ordinary citizens to keep and bear their personal arms, or a collective right that exists only in connection to official service in a state militia? The Court determined that the Amendment’s text, history, and tradition clearly establish that the right to keep and bear arms is an individual right centered on self-defense, irrespective of militia service. As a result, the Court held that the District of Columbia could not prohibit ordinary residents from keeping handguns inside of their homes, because handguns were “typically possessed by law-abiding citizens for lawful purposes.”

In McDonald, the Court reaffirmed that the Second Amendment protects an individual right. It took this ruling one step further by holding that the right to keep and bear arms is “fundamental to our scheme of ordered liberty,” and, because of the Fourteenth Amendment, protects against infringements by state governments as well as by the federal government.

In Bruen, the Supreme Court held that the Second Amendment protects an individual right of ordinary citizens to carry handguns outside the home for self-defense, and struck down a New York law requiring concealed carry permit applicants to prove they had “proper cause” to defend themselves in public with firearms. The Court emphasized that, in Second Amendment cases, the government bears the burden of proving its challenged law is consistent with the nation’s historical tradition of firearm regulation.