Amendment 2 — Heller And Individual Right To Firearms

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Second Amendment :

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.

Before the Supreme Court’s decision in District of Columbia v. Heller,[1](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn1amd2 " 554 U.S. 570 (2008). ") the District of Columbia had a web of regulations governing the ownership and use of firearms that, taken together, amounted to a near-total ban on operative handguns in the District. One law generally barred the registration of most handguns.[2](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn2amd2 " Parker v. District of Columbia, 478 F.3d 370, 373 (D.C. Cir. 2007). ") Another law required persons with registered firearms to keep them “unloaded and either disassembled or secured by a trigger lock, gun safe, locked box, or other secure device.” [3](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn3amd2 " See id. ") A third law prohibited persons within the District of Columbia from carrying (openly or concealed, in the home or elsewhere) an unlicensed firearm.[4](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn4amd2 " See id. ") In 2003, six D.C. residents challenged these measures as unconstitutional under the Second Amendment , arguing that the Constitution provides an individual right to keep and bear arms.[5](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn5amd2 " Parker v. District of Columbia, 311 F. Supp. 2d 103, 103–04 (D.D.C. 2004). ") In particular, the residents contended that the Second Amendment provides individuals a right to possess “functional firearms” that are “readily accessible to be used . . . for self-defense in the home.” [6](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn6amd2 " Parker, 478 F.3d at 374. ")

The challenge made its way to the Supreme Court, which, in a 5-4 decision authored by Justice Antonin Scalia, concluded that the Second Amendment provides an individual right to keep and bear arms for lawful purposes.[7](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn7amd2 " District of Columbia v. Heller, 554 U.S. 570, 595, 626–27 (2008). ") The majority arrived at this conclusion after undertaking an extensive analysis of the founding-era meaning of the words in the Second Amendment ’s “prefatory clause” ( “A well regulated Militia, being necessary to the security of a free State” ) and “operative clause” ( “the right of the people to keep and bear Arms shall not be infringed” ).[8](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn8amd2 " Id. at 577. ") Applying that interpretation to the challenged D.C. firearm laws, the Court concluded that the District’s functional ban on handgun possession in the home and the requirement that lawful firearms in the home be rendered inoperable were unconstitutional.[9](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn9amd2 " The Court did not evaluate the challenged licensing law on that ground that the District had asserted that, “'if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,’” which the Court interpreted to mean that “he is not a felon and is not insane.” See id. at 630–31. ")

The majority analyzed the Second Amendment ’s two clauses and concluded that the prefatory clause announces the Amendment’s purpose.[10](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn10amd2 " Id. at 577. ") Furthermore, although there must be some link between the stated purpose in the prefatory clause and the command in the operative clause, the Court concluded that “the prefatory clause does not limit . . . the scope of the operative clause.” [11](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn11amd2 " Id. at 577–78. ") Accordingly, the Court assessed the meaning of the Second Amendment ’s two clauses.

Beginning with the operative clause, the Supreme Court first concluded that the phrase the “right of the people,” as used in the Bill of Rights, universally communicates an individual right, and thus the Second Amendment protects a right that is “exercised individually and belongs to all Americans.” [12](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn12amd2 " Id. at 579–81. ") Next, the Court turned to the meaning of “to keep and bear arms.” [13](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn13amd2 " Id. at 581–91. ") “Arms,” the Court asserted, has the same meaning now as it did during the eighteenth century: “any thing that a man wears for his defence, or takes into his hands, or use[s] in wrath to cast at or strike another,” including weapons not specifically designed for military use.[14](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn14amd2 " Id. at 581. ") The Court then turned to the full phrase “keep and bear arms.” To “keep arms,” as understood during the founding period, the Court maintained, was a “common way of referring to possessing arms, for militiamen and everyone else.” [15](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn15amd2 " Id. at 582–83. ") The Court further explained that “bearing arms,” during the founding period as well as currently, means to carry weapons for the purpose of confrontation; but even so, the Court added, the phrase does not “connote[] participation in a structured military organization.” [16](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn16amd2 " Id. at 584. ") Taken together, the Court concluded that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” [17](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn17amd2 " Id. at 592. ") The Court added that its textual analysis was supported by the Amendment’s historical background, which was relevant to its analysis because, the Court reasoned, the Second Amendment was “widely understood” to have codified a pre-existing individual right to keep and bear arms.[18](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn18amd2 " Id. at 592–95. ")

Turning back to the prefatory clause, the Supreme Court majority concluded that the term “well-regulated militia” does not refer to state or congressionally regulated military forces as described in the Constitution’s Militia Clause;[19](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn19amd2 " U.S. Const. art I, § 8, cl. 15 ( “The Congress shall have Power . . . to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” ). ") rather, the Second Amendment ’s usage refers to all “able-bodied men” who are “capable of acting in concert for the common defense.” [20](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn20amd2 " Heller, 554 U.S. at 595–96. ") The Court opined that the security of a free “state,” does not refer to the security of each of the several states, but rather the security of the country as a whole.[21](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn21amd2 " Id. at 597. ")

Coming back to the Court’s initial declaration that the two clauses must “fit” together, the majority concluded that the two clauses fit “perfectly” in light of the historical context showing that “tyrants had eliminated a militia consisting of all the able-bodied men . . . by taking away the people’s arms.” [22](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn22amd2 " Id. at 598. ") Thus, the Court announced the reason for the Second Amendment ’s codification was “to prevent elimination of the militia,” which “might be necessary to oppose an oppressive military force if the constitutional order broke down.” [23](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn23amd2 " Id. at 599. ") The Court clarified that the reason for codification does not define the entire scope of the right the Second Amendment guarantees.[24](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn24amd2 " Id. ") This is so because, the Court explained, the Second Amendment codified a pre-existing right that included using firearms for self-defense and hunting, and thus the pre-existing right also informs the meaning of the Second Amendment .[25](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn25amd2 " Id. at 599–600. ")

The Supreme Court majority added that its conclusion was not foreclosed by its earlier ruling in Miller, which seemed to tie the Second Amendment right to militia use. The Supreme Court in Heller concluded that Miller addressed only the type of weapons eligible for Second Amendment protection.[26](https://www.law.cornell.edu/constitution-conan/amendment-2/heller-and-individual-right-to-firearms#fn26amd2 " <span class="cite cite-