INTRODUCTION
For over 200 years, the contours of the Second Amendment right to keep and bear arms have been hotly debated with advocates on both sides claiming the text and history support their position. It was not until 2008 that the Supreme Court first ruled on the scope of the individual right protected by the Second Amendment in District of Columbia v. Heller.1 This paper will analyze the Supreme Court’s interpretation of the Second Amendment in Heller and subsequent cases and discuss some of the open questions that remain.
I. DISTRICT OF COLUMBIA V. HELLER
In Heller, the Supreme Court struck down provisions of the District of Columbia’s Firearms Control Regulations Act that banned handgun possession in the home and required lawfully owned firearms to be rendered inoperable.2 Writing for a 5-4 majority, Justice Scalia held that the Second Amendment protects an individual right to keep and bear arms that is unconnected with service in a militia.3 This was a significant departure from prior precedent that had characterized the right as militia-related.4
Justice Scalia began by analyzing the operative clause of the Second Amendment – “the right of the people to keep and bear Arms” – and found that it codified a pre-existing right of individuals, not militias, to own and carry weapons for self-defense and other lawful purposes.5 Turning to the prefatory clause – “A well regulated Militia, being necessary to the security of a free State” – the Court stated that while it announced a purpose for recognizing the right, it did not limit or expand the scope of the operative clause.6 Thus, the District’s complete ban on handgun possession in the home ran afoul of the Amendment’s guarantee.7
Justice Scalia was careful to note that the Second Amendment right is not unlimited and left for “another day” the task of defining its full contours.8 Some longstanding prohibitions – such as those against felons and the mentally ill, or bans on carrying firearms in sensitive places like schools and government buildings – were presumptively lawful.9 But the District’s requirement that firearms be rendered inoperable crossed the line established in Heller.10
II. MCDONALD V. CITY OF CHICAGO
Two years after Heller, the Supreme Court incorporated the Second Amendment against the states in McDonald v. City of Chicago.11 At issue were municipal bans on handgun possession similar to those struck down in Heller, but enacted by the city of Chicago and village of Oak Park.12 In a 5-4 decision, the Court held that the Second Amendment right recognized in Heller is fundamental and applies fully to the states under the Due Process Clause of the Fourteenth Amendment.13
Writing for the plurality, Justice Alito noted that the fundamental rights protected by the Bill of Rights have all been incorporated through the Fourteenth Amendment using the Supreme Court’s selective incorporation framework.14 While some amicus briefs urged rejection of incorporation,15 the Court recognized that the Heller right to armed self-defense in the home – “the very core” of the Second Amendment – warranted incorporation no less than other rights deemed fundamental.16 The Chicago and Oak Park handgun bans were thus invalid as a consequence of applying the Second Amendment to the states.17
As in Heller, the McDonald Court reiterated that its holding did not mean the Second Amendment right is unlimited or cannot be subject to reasonable restrictions.18 Regulations barring felons and the mentally ill from gun ownership, for example, remained valid even after incorporation.19 But again, the Court declined to comprehensively define the precise scope of permissible regulations.20
III. UNRESOLVED ISSUES
While Heller and McDonald established an individual right to possess firearms in the home for self-defense, several important issues remain open for debate or require further judicial resolution. This section explores some of the major unresolved questions.
A. Standards of Scrutiny
Heller did not specify what level of scrutiny should apply to laws infringing the Second Amendment right. The options range from strict scrutiny to intermediate scrutiny to reasonableness review.21 Lower courts have split applying either intermediate22 or two-tiered scrutiny.23 Clarification from the Supreme Court is needed on the proper standard.
B. Scope Beyond the Home
Neither Heller nor McDonald expressly defined whether the Second Amendment applies outside the home. Precedent has generally upheld restrictions on public carrying but also recognized a historical right to carry weapons in some public places.24 The precise scope is still being mapped.
C. “Assault Weapons” and Large Capacity Magazines
While Heller affirmed bans on military-grade weapons are lawful, the constitutionality of prohibitions on semi-automatic “assault weapons” and magazines holding more than ten rounds remains unsettled. Lower courts are divided on whether these laws withstand scrutiny.25 High-capacity magazines in particular warrant Supreme Court guidance.
D. “Sensitive Places” and Public Carry Restrictions
Heller’s reassurance that some public carry restrictions remain valid has led many lower courts to affirm broad bans on carrying firearms in urban areas. But the outer boundaries of valid “sensitive places” laws under the Second Amendment are contested absent further definition by the Supreme Court.
E. Constitutional Challenges to Registration Requirements
Regulations requiring background checks, training courses, permits, and registration of firearms have faced Second Amendment challenges with mixed success.26 Given their prevalence, the Court will likely need to weigh their validity under different levels of scrutiny analysis.
CONCLUSION
Over a decade after Heller began resolving longstanding uncertainty, the Supreme Court has established a clear individual right to armed self-defense but left many open questions on its precise application. Future cases will map the boundaries of permissible firearm regulations, define applicable scrutiny standards, and resolve debates over bans on certain semi-automatic weapons and high-capacity magazines commonly used for lawful purposes today. Continued litigation and rulings from the high Court are certain to shape further development and understanding of the Second Amendment right.
Endnotes
1 554 U.S. 570 (2008).
2 Id. at 574-75.
3 Id. at 595, 622, 636.
4 See United States v. Miller, 307 U.S. 174, 178 (1939).
5 Heller, 554 U.S. at 579-80, 584-86, 599-600.
6 Id. at 577-78, 595, 603, 613-14.
7 Id. at 628-29, 635.
8 Id. at 626-27, 635.
9 Id. at 626-27 & n.26.
10 Id. at 630-32.
11 561 U.S. 742 (2010).
12 Id. at 750.
13 Id. at 767, 791.
14 Id. at 762-63 (plurality opinion).
15 E.g., Brief Amicus Curiae of Criminologists, Sociologists, and Social Scientists, McDonald v. City of Chicago, 561 U.S. 742 (2010) (No. 08-1521), 2009 WL 4099504.
16 McDonald, 561 U.S. at 767-68 (plurality opinion).
17 Id. at 791.
18 Id. at 786.
19 Id.
20 Id.
21 See Ezell v. City of Chicago, 651 F.3d 684, 701-03 (7th Cir. 2011).
22 E.g., Heller v. District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011).
23 E.g., NY State Rifle & Pistol Assn, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015).
24 E.g., Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013).
25 E.g., Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc).
26 E.g., Heller v. District of Columbia, 801 F.3d 264 (D.C. Cir. 2015) (registration).
Andrew Stroud