The Second Amendment and the Individual Right to Bear Arms

Should citizens be prohibited from owning handguns?

In 1959, most Americans apparently believed so: The Gallup Poll that year reported that 60 percent of Americans supported a law to “ban the possession of handguns, except by the police and other authorized persons,” while only 36 percent disagreed. The next two times Gallup asked the question, the percentage agreeing was down, to 49 percent in 1965 and 41 percent in 1975; most recently, in October 2016, it was only 23 percent.

Through all this period, of course, the Second Amendment to the Constitution was in effect: “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.” But for most of that time, it was unclear how far that right extended. The Supreme Court had not decided any Second Amendment cases since U.S. v. Miller, a 1939 case in which it upheld the federal law banning possession and sale of sawed-off shotguns.

That changed in June 2008, when the Supreme Court handed down its decision in Heller v. District of Columbia. That case challenged the constitutionality of a 1975 D.C. statute that prohibited possession of handguns obtained after that date and required shotguns, rifles, and pre-1975 guns legally possessed to be kept unloaded and disassembled. A federal district court judged had dismissed the case; the D.C. Circuit Court of Appeals reversed. Other federal appeals courts had issued decisions reaching each result.

Justice Antonin Scalia, writing for a five-justice majority, wrote that the Second Amendment does recognize an individual right to keep and bear arms and that the handgun ban and the requirement that firearms be kept inoperable. He added that the ruling did not necessarily invalidate laws barring felons or the mentally ill from gun ownership or from prohibiting guns in “sensitive places such as schools or government buildings.” In the 2012 case of McDonald v. Chicago, the Court, again by a 5-4 margin, ruled that the Second Amendment applies to the states.