Second Amendment

Andy Warhol, Guns, 1982. Copyright: 2013 The Andy Warhol Foundation for the Visual Arts, Inc. / Artists Rights Society (ARS), New York.
Distinguished Professor Ruthann Robson is an expert on constitutional law and is the co-editor of the Constitutional Law Professors Blog.

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.

Debate surrounding the Second Amendment centers on the original intent of the Constitution’s framers: does the right to buy and use firearms belong to individuals, or only to members of local, state, and federal governments’ military force? Debates over the scope of this amendment have also centered on to what extent the government can place any limits on guns and weapons including making illegal certain types of weapons and extending background checks to gun show sales.

Due to the increase of violence and organized crime in the Prohibition era, Congress passed the National Firearms Act of 1934. The act called for taxation and registration of automatic weapons and sawed-off shotguns, and inspired a unanimous decision in United States v. Miller (1939). The defendant in Miller was charged with possession of an unregistered sawed-off shotgun. The Court decided the Second Amendment did not protect the right of citizens to own firearms that were not ordinary militia weapons, and a sawed-off shotgun did not qualify as such.

In 1993, after the assassination attempt on President Reagan, the Brady Handgun Violence Prevention Act was passed, named after Reagan’s secretary James Brady who was also shot and seriously wounded. The law requires gun sellers to perform a background check on buyers (except for gun shows and private sales). In 1997, in a case about federalism and not squarely about the Second Amendment, the Supreme Court ruled in Printz v. U.S. that the national government cannot commandeer local officials to perform these “Brady Act” background checks.

The Court did not directly revisit the meaning of the Second Amendment again until District of Columbia v. Heller (2008). In a closely divided 5-4 decision complete with historical discussion, the Court upheld the right of individuals to keep and bear arms for self-defense even if those individuals are not a part of a state sponsored “well regulated militia.” In another closely divided decision, the Court ruled in McDonald v. Chicago (2010) that the Second Amendment also applies to states.

Increasing attention to gun violence, including the tragic events at Sandy Hook Elementary School in Newtown, Connecticut in December 2012, means that debates about the Second Amendment continue. Current controversies focus on assault weapons, mandatory background checks at gun shows, databases of the mentally ill who would be barred from weapons purchases, and other restrictions on gun ownership and use. With an increase in firearm possession and calls for stricter federal gun laws, it remains to be seen how long it will be until the Court again enters the fray.

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