Amendment 2 — Post Heller Issues And Application Of Second Amendment To States

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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.

The Supreme Court’s decision in Heller left several questions regarding the scope and application of the Second Amendment unanswered, including what methodology or level of scrutiny should ordinarily apply to laws implicating the Second Amendment right to keep and bear arms and how far Second Amendment protections extend, if at all, beyond keeping firearms for self defense in the home. Additionally, because Heller involved a challenge to a D.C. law, which is generally not treated as a state for purposes of constitutional law,[1](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn1amd2 " See Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445 (1805). ") a question beyond the scope of Heller was whether the Second Amendment applies to the states. Several Supreme Court cases near the end of the nineteenth century established the Second Amendment as a constraint only on federal government action.[2](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn2amd2 " See . ") However, as the Supreme Court noted in Heller, those decisions “did not engage in the sort of Fourteenth Amendment inquiry required by” later Supreme Court cases[3](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn3amd2 " District of Columbia v. Heller, 554 U.S. 570, 620 n.23 (2008). ") —specifically, cases establishing the doctrine of “selective incorporation” through which particular provisions in the Bill of Rights that are “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition” are considered to be incorporated in the Due Process Clause of the Fourteenth Amendment such that they apply to the states.[4](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn4amd2 " See . ")

The Supreme Court revisited the issue of whether the Second Amendment applies to the states in the 2010 case McDonald v. City of Chicago,[5](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn5amd2 " 561 U.S. 742 (2010). ") concluding that it does. McDonald involved Second Amendment challenges to ordinances banning handgun possession in the City of Chicago and its neighboring suburb of Oak Park, Illinois.[6](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn6amd2 " Nat’l Rifle Ass’n of Am., Inc. v. City of Chicago, 567 F.3d 856, 857 (7th Cir. 2009). ") The lower courts held that they were bound by the Supreme Court precedent establishing that the Second Amendment does not apply to the states, but the Supreme Court reversed in a 4-1-4 ruling.[7](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn7amd2 " McDonald, 561 U.S. at 749. ") The Court, in an opinion authored by Justice Alito, concluded that “the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” [8](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn8amd2 " Id. at 778. ") Thus, a plurality of the Court held that the Second Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment .[9](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn9amd2 " Id. at 791. Although Justice Thomas was part of the five-Justice majority of the McDonald Court who agreed that the Second Amendment was applicable to the states via the Fourteenth Amendment, he disagreed with his colleagues’ view that the Due Process Clause served as the proper basis for this incorporation. Id. at 805–58 (Thomas, J., concurring). In Justice Thomas’s view, the Fourteenth Amendment’s Privileges or Immunities Clause provided the source for incorporation. Id. at 805–06, 855. ") The plurality first noted that Heller makes “unmistakabl[e]” that the basic right to self-defense is a “central component” of the Second Amendment and “deeply rooted in this Nation’s history and tradition.” [10](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn10amd2 " Id. at 767–68 (internal emphasis, citations, and quotation marks omitted) (plurality op.). ") The Court reiterated much of the information recited in Heller about the founders’ relationship to arms, including the fear many held—based on King George III’s attempts to disarm the colonists—that the newly created federal government, too, would disarm the people to impose its will.[11](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn11amd2 " Id. at 768. ") The Court explained that, even though the initial perceived threat of disarmament had dissipated by the 1850s, “the right to keep and bear arms was highly valued for purposes of self-defense.” [12](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn12amd2 " Id. at 770. ") The Court also pointed to congressional debate in 1868 of the Fourteenth Amendment , during which Senators had referred to the right to keep and bear arms as a “fundamental right deserving of protection.” [13](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn13amd2 " Id. at 775–76 (internal citations and quotation marks omitted). ")

In his concurring opinion, Justice Thomas said that he would have construed the Second Amendment to be applicable to the states via the Privileges or Immunities Clause of the Fourteenth Amendment because, in his view, “the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.” [14](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn14amd2 " Id. at 778 (Thomas, J., concurring). ") Justice Thomas’s opinion nevertheless provided the crucial fifth vote to hold that the Second Amendment applies to the states.

Justice Breyer dissented (joined by Justices Ginsburg and Sotomayor), contending that “nothing in the Second Amendment ’s text, history, or underlying rationale . . . warrant[s] characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.” [15](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn15amd2 " Id. at 913 (Breyer, J., dissenting). ") Additionally, he asserted that the Constitution provides no authority for “transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislators to courts or from the States to the Federal Government.” [16](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn16amd2 " Id. ")

Justice Stevens authored another dissenting opinion, arguing that the question before the Court was not whether the Second Amendment , as a whole, applies to the states, but rather whether the Fourteenth Amendment requires that the liberty interest asserted— “the right to possess a functional, personal firearm, including a handgun, within the home” —be enforceable against the states.[17](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn17amd2 " Id. at 858, 884, 890 (Stevens, J., dissenting). ") In his view, the Second Amendment is not enforceable against the states, particularly because the Amendment is a “federalism provision” that is “directed at preserving the autonomy of the sovereign States, and its logic therefore resists incorporation by a federal court against the states.” [18](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn18amd2 " Id. at 897 (internal citations and quotation marks omitted). ")

Between McDonald in 2010 and New York State Rifle & Pistol Association v. Bruen in 2022, the Supreme Court issued only one other decision substantively addressing the Second Amendment .[19](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-amendment-to-states#fn19amd2 " In 2019, the Court granted review in a case challenging portions of New York City’s handgun licensing regime that limited the transportation of firearms to shooting ranges and second homes outside the city, but changes to the laws at issue prompted the Court to effectively dismiss the case as moot in April 2020 without ruling on the merits. See N.Y. State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525, 1526 (2020). Several Justices wrote or joined separate opinions in the case signaling concern that the Second Amendment was not being properly applied by some courts. E.g., id. at 1527 (Kavanaugh, J., concurring) ( “[I] share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald.” ). ") In Caetano v. Massachusetts,[20](https://www.law.cornell.edu/constitution-conan/amendment-2/post-heller-issues-and-application-of-second-a