The hotly debated Second Amendment of the Constitution provides a right to keep and bear arms. This accompanies a reference to a "well-regulated militia." According to some scholars of constitutional law, the reference to a militia suggests that the Second Amendment is meant only to preserve the right of each state to self-defense. Known as the collective rights theory, this viewpoint would not interpret the text as granting each individual a right to have firearms. In other words, the government would not violate the Constitution by restricting the possession of guns. By contrast, many other scholars interpret the Second Amendment right as an individual right that applies to each citizen. This viewpoint would prevent the government from restricting the possession of guns, at least to some extent.
Text of the 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." Does this support the individual or collective rights approach?
In the 1939 decision of US v. Miller, the Supreme Court favored the collective rights theory. It ruled that the National Firearms Act of 1934 did not violate the Second Amendment by regulating the transportation of a sawed-off shotgun in interstate commerce. The Court noted that the Second Amendment was designed to preserve an effective militia, as stated in its opening phrase. The sawed-off shotgun clearly did not further that goal, so Congress had the authority to regulate its transportation without violating the Constitution.
Modern Trends in Second Amendment Law
The Supreme Court did not revise its Second Amendment doctrine until 2008 in the controversial decision of District of Columbia v. Heller. This case arose from the strict handgun ban in the District of Columbia, which was not a new law. The Court struck down this 30-year-old statute as a violation of the Second Amendment. It shifted from the collective rights theory espoused in Miller to an individual rights theory of the provision, based on its historical context. Thus, modern jurisprudence offers a much more robust vision of the Second Amendment.
Heller did not create an absolute right to possess guns, though. The Court kept Miller alive by observing that sawed-off shotguns have no possible legal use. It found that the government does not violate the Second Amendment when it regulates the possession of weapons that have no law-abiding purpose. The government also might be constitutionally allowed to forbid certain groups of people from possessing guns, such as people with mental illnesses and convicted felons. Many states have defined "felon in possession of a firearm" as a statutory crime.
Two years later, the Supreme Court echoed its decision in Heller when it reviewed a sweeping handgun ban in Chicago. In McDonald v. City of Chicago, the Court ruled that the right to bear arms should be incorporated through the Fourteenth Amendment to apply to the states as well as the federal government. Therefore, state and local governments are subject to parallel limits on their ability to regulate firearm possession. The majority opinion ruled that incorporation should be based on the Due Process Clause of the Fourteenth Amendment, while a concurrence suggested that the Privileges and Immunities Clause forms a stronger basis. The Court also did not clarify the standard of review for these cases. This factor has a huge impact on whether a law is upheld, since the gulf between strict scrutiny and rational basis review is vast.
Second Amendment Decisions in Lower Courts
Federal appellate courts have ruled on the constitutionality of several gun laws since the Heller decision was issued. These decisions indicate more limits on the individual right to bear arms than might have been anticipated. For example, courts have upheld a ban on the possession of handguns by juveniles, a ban on bringing weapons onto federal government property, and a law that requires a gun owner to show proper cause when pursuing a concealed carry permit.