Note: This is an educational course, not legal advice.
For most of the 1900s the Court said little about the Second Amendment. In United States v. Miller (1939) it upheld a federal tax on short-barreled shotguns because no evidence showed such a weapon related to a well regulated militia. Then, in 2008, the Court decided its first full case on the amendment's meaning. You met it in Civics: the Second Amendment.
Why it works
Heller is a leading example of the debate between interpretive methods you met in Con Law I: originalism. Both main opinions argued from founding-era history; they read it differently. Scholars remain divided, and both readings are presented here as their advocates present them. Two years later, McDonald v. City of Chicago (2010) held 5 to 4 that the right applies to states and cities: a plurality (Justice Alito) used the Due Process Clause, finding the right fundamental and deeply rooted, and Justice Thomas, concurring, used the Privileges or Immunities Clause (see incorporation). Chicago's handgun ban fell.
Key idea
District of Columbia v. Heller (2008), 5 to 4: the Second Amendment protects an individual right to keep and bear arms; D.C.'s handgun ban fell; longstanding regulations remain presumptively lawful. McDonald v. City of Chicago (2010) incorporated the right against the states.
Worked example: Two clauses
How did the Heller majority and Justice Stevens's dissent read "A well regulated Militia, being necessary to the security of a free State"?
- Majority: a prefatory clause announcing a purpose; it does not limit the operative clause's individual right.
- Stevens: the clause shows the right was tied to militia service.
Answer: Majority: a statement of purpose; Stevens: a limit tying the right to the militia.
Worked example: A state law after McDonald
In 2011 a city bans keeping handguns in the home. Can it argue the Second Amendment binds only the federal government?
- That was true before 2010 (the Bill of Rights limited only the federal government under Barron, and the Court had not incorporated this right).
- McDonald v. Chicago (2010) incorporated it against states and cities.
- Heller held a home handgun ban unconstitutional.
Answer: No; after McDonald, the city's ban is unconstitutional under Heller.
Common mistake
Stating the militia clause's role as settled before Heller. Before 2008 lower courts mostly followed a militia-related reading, but the Supreme Court had not squarely decided the question. In Heller, the majority read the prefatory clause as announcing a purpose; Justice Stevens's dissent read the right as tied to militia service. Present both readings.