The Second Amendment reads: "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." For most of the 1900s, courts and scholars debated what the first clause means for the second.
Why it works
Two readings were argued for decades. The individual-right reading says "the right of the people" means a personal right, like "the people" in the First and Fourth Amendments, and the militia clause states one purpose without limiting the right. The militia-related reading says the amendment protects keeping and bearing arms in connection with service in a state militia. In District of Columbia v. Heller (2008) the Court adopted the individual reading 5 to 4: Justice Scalia's majority struck down the District's ban on handguns in the home, while Justices Stevens and Breyer wrote dissents for the four. The majority added that the right is not unlimited and that its opinion did not cast doubt on longstanding laws, such as bans on possession by felons and on guns in sensitive places like schools and government buildings.
| Case | Vote | Holding |
|---|---|---|
| District of Columbia v. Heller (2008) | 5–4 | An individual right to keep a handgun at home for self-defense |
| McDonald v. City of Chicago (2010) | 5–4 | The right applies to states and cities through the Fourteenth Amendment |
Key idea
In Heller (2008) the Court held 5 to 4 that the Second Amendment protects an individual right to keep a handgun at home for self-defense; McDonald (2010) applied it to the states; the Court has said the right has limits.
Worked example: Federal or state?
Heller struck down a law in the District of Columbia. Why did a later case have to decide whether the right binds states?
- D.C. is a federal district, so Heller applied the amendment against federal-level law.
- Whether the right limits the states is an incorporation question.
- McDonald v. Chicago (2010) answered yes.
Answer: Because of incorporation; McDonald (2010) applied it to the states.
Worked example: Reading the vote
Was Heller unanimous?
- The vote was 5 to 4.
- Four justices dissented, arguing for the militia-related reading and for deference to lawmakers.
Answer: No; it was 5 to 4.
Common mistake
Stating one reading as settled before 2008. Before Heller, courts and scholars disagreed about whether the right was individual or tied to militia service; Heller chose the individual reading by one vote, and four justices dissented. Describe both readings fairly, then state what the Court held.