Second Amendment: Frequently Asked Questions

What does the Second Amendment to the U.S. Constitution say?

The Second Amendment to the U.S. Constitution states, "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."

Does the Second Amendment mean that U.S. citizens have an inalienable right to own a gun?

No. In 1939, the U.S. Supreme Court held in United States v. Miller that the "obvious purpose" of the Second Amendment is to "assure the continuation and render possible the effectiveness" of the state militia, and the Amendment "must be interpreted and applied with that end in view."¹ The Court rejected a Second Amendment challenge brought by two individuals charged with violating a federal law prohibiting the interstate transportation of sawed-off shotguns. In other words, the Court refused to find an individual right to bear arms unrelated to service in a state militia and reiterated the right of the federal government to regulate firearms. ²

Since then, over 200 federal and state appellate courts have upheld numerous common-sense gun regulations, including laws that:

• Ban assault weapons;
• Prohibit firearm possession by persons who have been:
• Involuntarily committed to a mental institution;
• Convicted of a felony or a misdemeanor crime of domestic violence;
• Dishonorably discharged from the military;
• Require firearms dealers to be licensed;
• Require registration of firearms; and
• Require handgun owner identification cards.³

Despite this well-established precedent, the gun lobby and others have long argued that the Second Amendment guarantees a private right to possess firearms unrelated to service in a well-regulated state militia. Former Supreme Court Justice Warren Burger once characterized the gun lobby’s relentless misinformation campaign regarding the Second Amendment as "one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime."

What is the Second Amendment case that is currently before the U.S. Supreme Court?

District of Columbia v. Heller, the closely-watched case pending before the Supreme Court, involves a Second Amendment challenge to the District of Columbia law banning most handgun possession in Washington, D.C. On March 18, 2008, the United States Supreme Court heard arguments in the case. The Court is expected to issue its ruling by June 2008.

What are the issues in the Heller case?

The case arises from a 2007 decision by the U.S. Court of Appeals for the District of Columbia Circuit striking down the District of Columbia’s strict laws banning most handgun possession and requiring lawfully owned firearms to be kept unloaded and disassembled or bound by a trigger lock or similar device.⁵ The appellate court held that these laws violate the Second Amendment, interpreting the Amendment to protect a private right of individuals to keep and bear firearms unrelated to service in the militia.

On November 20, 2007, the U.S. Supreme Court agreed to hear the case and to decide the following question: Do the challenged provisions "violate the Second Amendment rights of individuals who wish to keep handguns and other firearms for private use in their homes?"⁶

This marks the first time the Supreme Court will address the scope of the Second Amendment since 1939.

What does the Heller case mean for other gun violence prevention laws at the federal, state or local level?

The Heller case should not immediately impact gun violence prevention policies beyond those at issue in the case. In this case the Supreme Court will only decide whether the District of Columbia’s handgun ban is constitutional under the Second Amendment. Existing gun laws and pending firearm–related legislation outside of the District of Columbia that involve more modest regulations than the District of Columbia law should not be directly impacted by the Supreme Court’s decision. Nonetheless, a Supreme Court ruling that finds an individual right to bear arms under the Second Amendment can reasonably be expected to spawn challenges to a wide range of gun laws.

Significantly, it is well established that the Second Amendment limits only the power of Congress, and that state and local laws are not subject to challenge under the Second Amendment. In general, the first ten amendments, or the Bill of Rights, only constrain acts of Congress, not state or local governments. However, under the doctrine of "incorporation," the Supreme Court has held that certain amendments contained in the Bill of Rights are "incorporated" by the Fourteenth Amendment as a constraint on state and local action. The Supreme Court has held that the Second Amendment is not incorporated, and therefore is not a constraint on state or local regulation.⁷ Because the District of Columbia is not a state or locality but a federal district, the Supreme Court should have no occasion to revisit this settled principle in Heller. Again, however, if the Court concludes that the Second Amendment confers a private right to possess firearms, that ruling will likely result in challenges to state and local gun laws, notwithstanding well-settled precedent regarding the issue of incorporation.

How is the Supreme Court expected to rule in the Heller case?

It is impossible to predict how the Court will rule in the case. Numerous amicus curiae ("friend of the court") briefs were filed on both sides of the case. Legal Community Against Violence joined with several major U.S. cities – Baltimore, Cleveland, Los Angeles, Milwaukee, New York City, Oakland, Philadelphia, Sacramento, San Francisco, Seattle, Trenton – and the United States Conference of Mayors to submit a brief in support of the District of Columbia in the Heller case. That brief can be viewed here.

It is worth noting that the Office of the Solicitor General of the United States filed a brief arguing that while the Second Amendment does protect an individual right to bear arms, that right is subject to reasonable regulation that would allow the many federal laws regulating guns to stand (including federal laws banning machine guns, requiring background checks on gun purchasers, and licensing gun dealers).

LCAV is a public interest law center dedicated to preventing gun violence. Formed in the wake of the 1993 assault weapon massacre at 101 California Street in San Francisco, LCAV provides free legal assistance to activists and public officials, including law enforcement and government attorneys, working to prevent gun violence. To learn more about our services or to request assistance, visit our web site, www.lcav.org, the nation’s most comprehensive source for information on U.S. firearms regulation.

¹ United States v. Miller, 307 U.S. 174 (1939).

² Unlike the U.S. Constitution, some state constitutions do contain a “right to bear arms” provision which specifically protects an individual right. In general, these provisions have been interpreted by the courts to be consistent with a wide range of firearm regulations, including, for example, bans on classes of firearms. See, e.g. Quilici v. Village of Morton Grove, 695 F.2d 261, 267-68 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983) (upholding Morton Grove, Illinois’ ban on handguns against a challenge based on the Illinois Constitutional right to bear arms).

³ For a detailed summary of Second Amendment cases, go to http://www.lcav.org/content/secondamend_index.asp.

⁴ Interview by Charlayne Hunter-Gault with Warren Burger, former Chief Justice, United States Supreme Court, The MacNeil/Lehrer NewsHour, First Freedoms (PBS television broadcast, Dec. 16, 1991).

⁵ Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).

⁶ District of Columbia v. Heller, 128 S. Ct. 645, 169 L. Ed. 2d 417 (2007).

⁷ See Miller v. Texas, 153 U.S. 535 (1894); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542, 553 (1876).