The Second Amendment Right to Keep and Bear Arms

The Second Amendment comprises just a single sentence that allows for considerable interpretation. Enacted in 1789 alongside nine other amendments collectively known as the Bill of Rights, it prohibits the government from infringing upon a "well-regulated Militia."

The Second Amendment is a contentious topic. Some people believe it provides people with an absolute right to own weapons. Others argue that its text limits the right to bear arms to purposes related to serving in a state militia.

The Supreme Court issued very few groundbreaking opinions on the topic until 2008. Then, it found that the Second Amendment does, in fact, protect an individual's right to bear arms.

Subsequent developments have answered the limits of government regulation regarding gun ownership. However, other questions, such as precisely who can possess guns, remain unanswered. 

This article answers frequently asked questions about the Second Amendment. It also provides historical background and discusses how the Supreme Court has interpreted it.

What the Second Amendment Says

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."

Frequently Asked Questions

What was the original intent of the Second Amendment?

Some historians argue that the primary reason for the Second Amendment was to prevent the need for the United States to have a professional standing army. Alexander Hamilton argued this point in the Federalist Papers.

Others say the fear of a standing army is the reason for the Second Amendment protections. That is, they say the citizens' right to bear arms served as a necessary check in case of a tyrannical government.

However, scholars seem to agree that concerns over military power and state militias have largely fallen by the wayside. Today, preserving gun rights and firearm possession is more important for the purposes of self-defense. It also allows for recreational gun use, such as hunting and target shooting.

This article explores these ideas in the "History of the Second Amendment" section below.

What does the "right to bear arms" really mean?

In District of Columbia v. Heller (2008), the Supreme Court analyzed the meaning of "keep and bear arms."

Justice Antonin Scalia, writing for the majority, began by looking at the meaning of "arms" in the 1700s. He noted that a 1773 dictionary defined them as "weapons of offence, or armour of defence." A 1771 legal dictionary defined them as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another."

Justice Scalia wrote that "arms" refers to "weapons that were not specifically designed for military use and were not employed in a military capacity."

In the Court's opinion, the Second Amendment extends to "all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

Regarding the phrase "keep arms," the Court analyzed examples from the founding era that mentioned the phrase. Justice Scalia concluded that the right to "keep arms" is an individual right unrelated to militia service. In other words, it refers to possessing arms for everyone, not just militia members.

The Court then analyzed the term "bear." The Court wrote that, in the 1700s, "bear" meant "carry." However, when one combines "bear" with "arms," the meaning changes to one indicating a right to carry arms "for a particular purpose — confrontation."

The Court also noted that nine state constitutions at the time provided rights to their citizens to "bear arms in defense of themselves and the state," or "bear arms in defense of himself and the state."

In summary, the right to bear arms generally refers to a person's right to possess weapons. A person does not need to join a militia to receive the Second Amendment's guarantees to keep and bear arms. Instead, it guarantees that people have a right to "possess and carry weapons in case of confrontation."

History of the Second Amendment

The Second Amendment has roots in English history. Scholars and Supreme Court Justices have opined on the right to keep and bear arms, noting how English subjects and the American colonists understood it to be a fundamental right.

This section describes the historical background of the Second Amendment. It first discusses the history of the individual right to bear arms against a tyrannical government. Then, it discusses how the Second Amendment codified what the citizens believed was a preexisting right.

Weapon Possession as a Fundamental Right

As far back as the 1600s, English kings took advantage of and suppressed their subjects by disarming them. Although uprisings against the kings guaranteed them some rights to keep and bear arms, American colonists also had a healthy fear of a monarchy disarming them.

In the late 1600s, King James II suppressed political opposition from Protestants by using "select militias" to disarm them. They revolted and ultimately displaced him in 1688.

James II's successors, William and Mary, assured their subjects that they would never disarm them. In 1689, they codified this assurance as the English Bill of Rights. In doing so, Englishmen had a fundamental right to firearm possession, preexisting the American Revolution by over 100 years.

English law scholars also recognized the individual right to possess weapons. William Blackstone, the preeminent authority on English law, wrote that the right to arms provision of the Bill of Rights was a fundamental right of all Englishmen.

In District of Columbia v. Heller (2008), Justice Scalia wrote that Blackstone's descriptions of the right as a "natural right of resistance and self-preservation" tied the right to individual possession instead of service in a militia or the military. He wrote further that Englishmen understood the right as a way to protect against "both public and private violence."

In the 1760s and 1770s, King George III tried the same strategy James II had tried a century earlier by disarming rebellious American colonists. The American colonists argued the English Bill of Rights prevented King George III from doing so. The colonists understood that their "right to self-preservation" permitted them to "repe[l] force by force" when society would not or could not.

Militias and Securing a Free State

The Second Amendment is unique because it is the only amendment in the Bill of Rights that includes a mission statement. The amendment aims to ensure the efficiency of a well-regulated militia because it is "necessary to the security of a free State." It does so by ensuring the government does not infringe on the people's rights to keep and bear arms.

In United States v. Verdugo-Urquidez (1990), the Supreme Court referred to "the people" as "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." 

United States v. Miller (1939) defined a militia as "all males physically capable of acting in concert for the common defense."

As Justice Scalia pointed out in Heller, a militia is, therefore, a "subset of 'the people.'" This, he argued, creates a strong presumption that the Second Amendment right is an individual one that belongs to all Americans rather than a right only for those who serve in a militia.

He also noted the following justifications for the importance of a militia with regard to national security:

• The militia can repel invasions and respond to insurrections or rebellions.

• As Alexander Hamilton noted in The Federalist No. 29, a well-regulated militia can render a large standing army unnecessary.

• A militia can better resist a tyrannical government if the "able-bodied" citizens are organized, trained, and have weapons.

The Framers also had first-hand experience with tyranny and trained militias. Since the 1600s, tyrants had effectively eliminated militias not by fighting them but by disarming them.

During the Constitutional Convention, the Framers understood the necessity of a citizen militia to resist a potentially oppressive military if constitutional order broke down. The Second Amendment codified the individual right to firearm possession to combat this fear.

U.S. Supreme Court Cases

The meaning of the Second Amendment was relatively unresolved by the judiciary until the 2000s. Although the Supreme Court heard some Second Amendment cases in the 1800s and 1900s, litigation in the past quarter century has clarified the extent of the amendment and gun rights.

This section provides information about some of the most significant Supreme Court cases concerning the Second Amendment.

United States v. Cruikshank (1876)

In United States v. Cruikshank, one of the Court's holdings was that the Second Amendment only prevented the federal government from infringing on a person's right to bear arms. In other words, the Second Amendment's guarantees do not protect people from private actors or state governments that may try to prevent them from bearing arms.

The case involved the Court's review of convictions that resulted from the Colfax Massacre in Louisiana. In 1873, a band of armed white men killed approximately 150 Black people in Colfax, Louisiana. Federal authorities indicted 97 men days after the Massacre.

Ultimately, only nine of the 97 men went to trial. Of the nine, six were acquitted of all charges. The other three were also acquitted of murder. However, they were convicted under the Enforcement Act of 1870. They were convicted of "banding and conspiring together to deprive their victims of various constitutional rights, including the right to bear arms."

The Supreme Court reversed the three convictions. Specifically regarding the Second Amendment, the Court wrote that the right to bear arms for a lawful purpose "is not a right granted by the Constitution . . . The second amendment declares that is shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress."

Cruikshank, therefore, stands for the idea that the Second Amendment only prevents the federal government from infringing on one's right to keep and bear arms. For years, the case stood for the proposition that the Fourteenth Amendment did not incorporate the Second Amendment against the individual states.

Presser v. Illinois (1886)

Building on its holding in Cruikshank, the Court in Presser v. Illinois held that individual states can generally create and enforce gun control laws.

Herman Presser led a group of approximately 400 citizen militia through the streets of Chicago. The militia was part of the Socialist Labor Party, unaffiliated with the Illinois state militia. Police arrested him for violating a state law that prohibited armed parades by groups other than the state militia.

The Court again noted that the Second Amendment only prohibits the federal government from infringing citizens' gun rights. Therefore, states and local governments could generally pass gun control laws and regulations.

United States v. Miller (1939)

In the late 1800s and early 1900s, the federal courts heard very few Second Amendment cases. However, the Supreme Court's decision in United States v. Miller (1939) ignited a national debate about gun control.

The government indicted Jack Miller and Frank Layton for violating the National Firearms Act (NFA). The NFA was a federal law that required citizens to register certain types of firearms (e.g., fully automatic rifles) with a government agency. The government alleged the defendants had violated the NFA by failing to register a sawed-off shotgun and by transporting it over state lines.

The Court held that the Second Amendment did not apply to the type of weapon the defendants possessed. Specifically, the Court found no evidence to show that possessing a short-barreled shotgun had a "reasonable relationship to the preservation or efficiency of a well-regulated militia . . ."

The Court remanded the case to a lower court for further consideration. However, Miller, who testified against his gang in court, was killed before the proceedings began, and Layton took a plea bargain.

The holding clarifies that the Second Amendment gives people a right to keep and bear arms, but the arms must have some "reasonable relationship" to preserving a well-regulated militia. Therefore, whether the Second Amendment right applies depends on the type of weapon possessed.

Miller is often cited by two different camps of the gun control debate. Both sides consider the holding as a "victory" for their side. Gun rights activists argue that the holding makes clear that the Second Amendment protects gun ownership. Gun control activists argue that it stands for the proposition that the government may restrict gun ownership.

District of Columbia v. Heller (2008)

Discussed in part in the "History of the Second Amendment" section of this article, the Supreme Court in Heller struck down two Washington, D.C., laws that banned people from possessing handguns and operable firearms in their homes.

The Court held that the Second Amendment guarantees an individual right to keep and bear arms, wholly separate from serving in a militia.

According to the Court, individual self-defense is a basic right and represents the "central component" of the Second Amendment right. It also clarified that people may keep and bear arms for lawful purposes, like hunting or other recreational activities. 

Concerning the "militia" clause, the Court held that it stated why the Framers included the Second Amendment but did not limit the right to keep and bear arms.

Justice Scalia, writing for the majority, held that the District's ban on possessing a handgun in the home violated the Second Amendment. The Court also held that a law requiring any lawfully owned firearms (e.g., rifles) to remain unloaded and either disassembled or locked while not in use also violated the Second Amendment.

Heller and the Court's decision in McDonald v. City of Chicago, which was issued two years later, provide detailed analyses of the Second Amendment. Legal commentator Michael C. Dorf explains the Heller case in depth in this article written shortly after the Court's decision.

McDonald v. City of Chicago (2010)

In McDonald v. City of Chicago (2010), the Supreme Court struck down a law similar to that in Heller. More significantly, the Court held that the Fourteenth Amendment's due process clause incorporates the Second Amendment to the states. Therefore, as Justice Samuel Alito wrote in the majority opinion, the Second Amendment is "fully applicable to the individual states."

The petitioner in McDonald filed a lawsuit against the city of Chicago. He alleged that a state law that prevented him from owning a handgun violated the Second Amendment. The defendants argued that the law was constitutional based on Supreme Court precedent and that the Second Amendment did not apply to the states.

In a 5-4 decision, the Supreme Court held that the Second Amendment applies to the states, and the state law was unconstitutional. The Court also reviewed the history of the Fourteenth Amendment, adopted after the Civil War.

The Court noted that it would not disturb the Slaughter-House Cases (1873), which narrowly interpreted the Fourteenth Amendment's Privileges or Immunities Clause. Instead, it held that the Second Amendment is incorporated against the states via the due process clause.

Justice Clarence Thomas wrote a concurring opinion. In it, he argued that American citizens understood the right to keep and bear arms as a privilege. Therefore, he thought the Privileges or Immunities Clause incorporated the Second Amendment to the states.

Justices Stephen Breyer and John Paul Stevens wrote dissenting opinions in the case, with whom Justice Ruth Bader Ginsburg and Sonia Sotomayor joined.

Read FindLaw's article and case summary for more information about the case.

Caetano v. Massachusetts (2016)

In Caetano v. Massachusetts, the Supreme Court overturned a woman's conviction regarding her possession and use of a stun gun. The case stands for the idea that the Second Amendment applies to arms that did not exist at the time of the Second Amendment's creation and ratification.

Jaime Caetano was a victim of domestic violence, and she obtained a stun gun from a friend for self-defense. When her ex-boyfriend confronted her, she used the stun gun to avoid an altercation. When police arrived, however, they arrested her for possessing a stun gun, which violated a Massachusetts state law.

The woman was convicted in state court. The Massachusetts Supreme Judicial Court ultimately upheld the conviction.

On review, the Supreme Court overturned the woman's conviction. Relying on its decisions in Heller and McDonald, the Court noted that the Second Amendment allows citizens to keep and bear stun guns as Caetano had in self-defense.

New York State Rifle & Pistol Association, Inc. v. Bruen (2022)

In NYSRPA v. Bruen (2022), the Court decided a case regarding gun control regulations, specifically who can carry handguns in public. There, the Court struck down a New York State law by concluding it violated the Second and Fourteenth Amendments.

The law at issue was the Sullivan Act, passed in 1911, which made it illegal for anyone to carry a handgun outside their homes without a license. To obtain a license, an applicant had to convince a licensing officer that they possessed "good moral character" and "proper cause." With regard to showing "proper cause," the applicant had to demonstrate a "special need for self-defense."

This type of licensing system is known as a "may issue" law, meaning the licensing officer has discretion regarding whether to issue the license, even if the applicant satisfies the law's criteria.

At the time of the lawsuit, 43 states used "shall issue" licensing systems. In those, the licensing official did not have the discretion to issue a license. Instead, if the applicant met the statutory criteria, the licensing officer had to issue them a license.

Two New York State citizens and the New York State Rifle & Pistol Association, Inc., filed a lawsuit against the New York State Police and a New York Supreme Court justice. They alleged that the defendants violated their Second and Fourteenth Amendment rights. Specifically, they challenged the Sullivan Act's "proper cause" requirement.

The Court ruled that the only acceptable regulations regarding gun ownership are those that were permissible when the states ratified the Second Amendment. In other words, the regulation must be consistent with America's "historical tradition of firearm regulation."

Therefore, the federal government can only impose a gun regulation if it was permissible in 1791. States may only impose regulations permissible in 1868 when the states ratified the Fourteenth Amendment.

The Court also reiterated its approach to applying the Second Amendment. When the Second Amendment plainly covers a person's conduct, it presumptively protects it. The government then has the burden of justifying its regulation. To do so, the government must demonstrate that the regulation is consistent with "the Nation's historical tradition of firearm regulation." At that point, the reviewing court may determine whether the person's conduct falls outside the Second Amendment's scope.

Applying this approach to the case, the Court held that the Second Amendment plainly encompassed the petitioners' rights to "'bear' arms in public for self-defense." The Court reviewed the respondents' evidence regarding historical traditions of firearm regulation and determined they did not meet their burden. Therefore, the Court held that the law's proper cause requirement violated the Constitution.