Note: This is an educational course, not legal advice.
Heller and McDonald held that the Second Amendment protects an individual right that binds every level of government. They also said the right "is not unlimited." This topic looks at the limits the Court itself described: which people, which places and which weapons.
| Limit | What the Court said | Case |
|---|---|---|
| People | nothing in Heller "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill" | District of Columbia v. Heller (2008) |
| Places | laws "forbidding the carrying of firearms in sensitive places such as schools and government buildings" are also presumptively lawful | District of Columbia v. Heller (2008) |
| Sales | "laws imposing conditions and qualifications on the commercial sale of arms" are presumptively lawful | District of Columbia v. Heller (2008) |
| Weapons | the right covers arms "in common use" for lawful purposes, not "dangerous and unusual weapons"; a short-barreled shotgun was not shown to relate to militia service | District of Columbia v. Heller (2008); United States v. Miller (1939) |
| New weapons | the right extends, at first view, to all bearable arms, "even those that were not in existence at the time of the founding"; the Court applied this to stun guns | District of Columbia v. Heller (2008); Caetano v. Massachusetts (2016) |
Why it works
Heller's list of "presumptively lawful" measures was short and came without a full explanation, and the Court said it was giving examples, not an exhaustive list. After 2008 many lower courts used a two-step method: they asked whether a law touched conduct the amendment protects, and if so applied intermediate or strict scrutiny. Since 2022 the Court has judged gun laws by the Nation's historical tradition of firearm regulation rather than by these tiers. Heller's majority had already rejected Justice Breyer's proposal to weigh a gun law's benefits against its burdens case by case. Supporters of that choice say an enumerated right should not depend on judges' views of its costs; critics say public safety must count and that history gives judges little guidance about modern weapons and places.
Key idea
Heller called longstanding prohibitions presumptively lawful: possession by felons and the mentally ill, carrying in sensitive places, and conditions on commercial sale. The right covers arms in common use, not "dangerous and unusual" ones, and reaches arms invented after 1791 (Caetano v. Massachusetts (2016)).
Worked example: A new kind of weapon
A state argues that a hand-held electronic device for self-defense is not protected because nothing like it existed in 1791. What did the Court say about that argument?
- Heller said the amendment extends to all bearable arms, even those not in existence at the founding.
- Caetano v. Massachusetts (2016) applied that to stun guns and rejected the state court's reasoning.
- Whether a particular ban survives depends on more than the weapon's age.
Answer: The argument fails: newness alone does not remove a weapon from the amendment.
Worked example: A courthouse rule
A state bans carrying firearms inside courthouses. What did Heller say about laws like this?
- Heller listed laws "forbidding the carrying of firearms in sensitive places such as schools and government buildings" among presumptively lawful measures.
- A courthouse is a government building.
Answer: Heller described such laws as presumptively lawful.
Common mistake
Thinking Heller struck down all gun laws, or that it let governments ban any weapon. It struck down a ban on handguns, the most popular arm for home defense, and it named longstanding regulations that remain presumptively lawful. Check: which people, which place, which weapon?