2nd Amendment

Summary of D.C. v. Heller

  • Question of right to “keep and bear arms” is an individual right or collective right for state-regulated militias

    • Constitutional right to protect individual right to possess firearms for lawful use, in the home 

    • Viewed D.C. law as unconstitutional 

      • Impossible for citizens to use arms for self-defense

  • Lawful bans:

    • Prohibit carrying concealed weapons

    • Prohibit gun possession by felons or mentally ill

    • Prohibit carrying firearms in sensitive places

    • Impose conditions and qualification on the commercial sale of arms

    • Prohibit dangerous and unusual weapons 

    • Regulate firearm storage to prevent accident 

  • Ban extended to the home and was therefore unlawful

Majority reasoning

  • Through historical record, amendment drafting history, interpretations of the amendment by scholars, courts, and legislators 

  • Operative Clause: right of the people to keep and bear arms, is controlling

    • Right of the citizenship

  • Prefatory Clause: “well regulated militia, being necessary to the security of a free state”

    • Refers to a well-trained citizen militia as necessary 

    • Important for self-defense and hunting 

  • Interpretation of the Second Amendment: went back on Miller 

    • Did not hold that and cannot possibly be read to have held that (that guns were only for military)

  • Limitations on the Right to Keep and Bear Arms

    • Needs to be presumptively lawful

    • Prevent carrying of dangerous and unusual weapons 

  • Standard of Determination

    • Rejected rational basis standard

    • Rejected interest-balancing approach

    • Cannot have absolute ban on handguns in the home for self-defense 

  • Class Discussion

    • Restrictions on to own and hold a gun in your home 

    • Individual argues that restrictions are too extreme, deny people the complete right of self defense

    • Prohibits registration of handguns 

    • Focuses on the “keep” aspect of 2nd amendment 

    • Deciding Heller

      • Does the prefatory clause concentration the operative clause 

        • Doesn’t constrain the operative clause, applies to all individuals (right to bear arms)

          • Scalia - militia used to mean all able bodied men i.e. the people

          • Militia is but one purpose for the need of individuals to keep and bear arms 

      • Is the right unlimited?

        • No, like most rights

        • Has several aspects that can still be regulated 

      • Ban violates the right to keep and bear arms 

      • Connection to miller

        • Source of weapons protected were those of common use at the time

        • Prohibit carrying of strange and unusual weapons 

      • Decline to apply a level of scrutiny 

  • Incorporation to the states

    • McDonald v Chicago (2010) incorporated 2nd amendment right to the states 



New York State Rifle & Pistol Assn. v. Bruen (2022)

Facts of the Case

  • NY requires person to show special need for self-protection to receive an unrestricted license to carry concealed gun outside home

  • Challenged law (Nash and Koch) after their applications were rejected

Question

  • Does NY’s law requiring that applicants for unrestricted concealed-carry licenses demonstrate a special need for self-defense violate the 2nd Amendment?

Conclusion

  • proper-cause requirement violated the fourteenth amendment

  • Right to carry firearm for self-defense is historical right

  • Sensitive places is appropriate, but Manhattan is not a sensitive place

  • Gun restrictions are constitutional only if there is a tradition of regulation in U.S. history

In Class Discussion

  • Concealed carry laws in the U.S. p.1 of maj. Opinion

  • Lower court precedent for deciding 2nd Amendment cases “two-step” part II pp. 8-10

  • Person has to demonstrate proper need to have a concealed carry license 

  • Shall issue – state doesn’t have discretion to deny license

    • Constitutionally valid 

  • Contested schemes are may issues 

    • Six states (and new york) have may-issue 

      • Authorities have discretion to deny concealed carry license even after having objective criteria 

      • Risk of not passing constitutional muster, Bruen deems these unconstitutional 

  • Bruen’s holding on 2nd amendment 

    • “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

      • Implying strict scrutiny 

      • Look back on what the founders would have understood 

      • Aim to find a legal conclusion 

  • Ruling is about “bear” part of keep and bear arms

  • DC v. Heller gives right for self defense which NY is violating 

    • New york has care about public safety 

  • Sensitive place can’t be an entire geographic area – needs to be more tangible 

  • Right to keep and bear arms come from Republican 

  • Between 2008-2022, lower courts are filling in gaps that supreme court isn’t 

    • Means and scrutiny mixed with historical 

    • Intermediate scrutiny 

  • Substantially important interest – intermediate scrutiny 

    • If the government can justify important interest for regulation, law can be upheld 

  • Thomas says it cuts to the core of the right 



3/19/25

D.C. v. Heller (practically invincible precedent)

  • 2nd Amendment 

    • “A well regulated militia, being necessary to security of a free state, the right of the people to keep and bear arms, shall not be infringed”

  • Prefatory clause 

    • Well regulated militia part 

      • Scalia interprets in the case

    • Does this clause present constraint on operative clause 

      • Anyone that is capable of being called into military service 

      • Governments would take away people’s guns to crush rebellions 

    • If doesn’t constrain

      • All individual citizen enjoys the rights

        • What happens in DC v. Heller 

  • Operative clause

    • Keep and bear arms 

      • Part of the natural pre-existing rights (unenumerated = still protected)

  • Madison’s original draft didn’t have prefatory clause 

    • Dropped religious exemption part as well 

  • Departed from interpretation in Miller

  • Elements of the common use doctrine 

U.S. v. Miller 

  • Man has sawed off shotgun without registration

  1. Not unconstitutional as an invasion of the reserved powers of the states

  2. Not violative of the 2nd amendment of the constitution

  • Court can’t take native that a shotgun having a barre  less than 18 inches long has any reasonable relation the preservation or efficiency of a well regulated militar

  • Court declines right of individual right to keep and bear arms 

  • Follows the prefatory clause constraining the right 

    • Right to have a gun would need to be connected to a well regulated militia 


Originalism(s)

  • Original intent 

    • What did the founders mean the words to convey 

    • What was their intent when they wrote down the words 

    • What is used in the dissent of heller 

    • Original intent is allusive 

    • Can be more hidden than the public meaning 

  • Original public meaning 

    • What did the provision mean to the people that were living at the time 

    • The well known meaning of the provision

    • Once decoded the meaning is fixed at the point of ratification

    • What Scalia uses in Heller 

    • Related branch is textualism

      • Only have the words on the page and should therefore follow this 

  • Underlying meaning and principles don’t change

    • Ex. freedom of speech 

Living Constitutionalism is opposite

  • Justices expand the meaning