TERM PAPER · 2022
What Is the Second Amendment?
Tracing the constitutional history of the Second Amendment through the Supreme Court’s own words.
Five times the Supreme Court has said what the right to keep and bear arms means. Each square is the bench on the day: nine seats, marked by how each justice voted. Open a case to read the holding in the Court’s own words. The sixth is the one the paper saw coming.
● majority ◐ concurred in the judgment ○ dissented ◌ did not take part
1875
United States v. Cruikshank
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UNANIMOUS · CLIFFORD CONCURRING
The Court’s first reading of the amendment: the right exists, but the Constitution only stops Congress from touching it.
Open the holding
The case grew out of the Colfax massacre in Louisiana, where a white mob killed dozens of freed Black men after a disputed election. Convictions for depriving the victims of their rights were overturned. Chief Justice Morrison Waite wrote for the Court:
“The Second Amendment declares that it shall not be infringed, but this… means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”
Chief Justice Waite, majority opinion, 92 U.S. 542
The first time the Court had interpreted the amendment since the Bill of Rights was ratified. The reading held for more than a century: the right is not granted by the Constitution, and states and cities are free to regulate it.
Patrick’s take. The framers chose their words carefully. “The people” and “the militia” are not interchangeable, and “shall not be infringed” reads to me as a limit on every level of government, not only Congress. It took until 2010 for the Court to say so.
1886
Presser v. Illinois
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9–0
A state may ban private armies from drilling and parading in its streets without touching anyone’s right to bear arms.
Open the holding
Herman Presser led four hundred armed men through Chicago without a licence. The Court upheld Illinois’s law, restating Cruikshank and adding a second holding on militias:
“The amendment is a limitation only upon the power of Congress and the national government, and not upon that of the state.”
Justice Woods, unanimous opinion, 116 U.S. 252
At the same time, the Court said every citizen capable of bearing arms forms part of the reserve militia of the United States, so a state could not disarm its people so completely that the national government lost that reserve.
Patrick’s take. The one case here about organised force rather than the individual. It confirmed the bench’s nineteenth-century view without expanding it.
1939
United States v. Miller
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8–0 · DOUGLAS NOT PARTICIPATING
A sawed-off shotgun has no reasonable relationship to a well-regulated militia, so the amendment does not protect it.
Open the holding
Jack Miller carried an unregistered double-barrel shotgun with a barrel under eighteen inches across a state line. Justice McReynolds tied the right to the weapon’s military use:
“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
Justice McReynolds, unanimous opinion, 307 U.S. 174
A bench that held both McReynolds and Frankfurter agreed without dissent: the right stands, and it has guardrails.
Patrick’s take. I agree with Miller. Not every weapon should fall under the amendment, and ordinary Americans should not hold military-style weapons outside well-regulated military purposes. The Court has had many chances since to say which weapons are protected and has not.
2008
District of Columbia v. Heller
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5–4
An individual right to keep a handgun at home for self-defence, unconnected to militia service. The Court’s first ruling for the individual.
Open the holding
Dick Heller, a special police officer, was refused a licence to keep a handgun in his Washington home. Justice Scalia split the amendment into a prefatory clause and an operative clause and held that the first announces a purpose without limiting the second:
“The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.”
Justice Scalia, majority opinion, 554 U.S. 570
Justice Stevens, dissenting, read the clauses together: the amendment protects the states’ militias, and nothing in its text or history shows the framers meant to enshrine a common-law right of self-defence. Justice Breyer dissented separately, arguing the question belongs to legislatures. Three things were left open: whether the right applies to the states, which weapons fall outside it, and what standard future gun laws would be judged by.
Patrick’s take. Everyone has a right to life; if it is threatened by another person or by a tyrannical authority, you are entitled to defend it by reasonable means. Heller says that in the Constitution’s own terms.
2010
McDonald v. City of Chicago
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5–4 · THOMAS CONCURRING IN THE JUDGMENT
The right recognised in Heller applies to the states through the Fourteenth Amendment. Cruikshank‘s limit on Congress alone is overturned in effect.
Open the holding
Otis McDonald, a retired maintenance engineer in Chicago, wanted a handgun to protect his home after repeated break-ins. Justice Alito wrote for the Court:
“We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.”
Justice Alito, opinion of the Court, 561 U.S. 742
Alito reached the result through the Due Process Clause and “ordered liberty”; Justice Thomas agreed with the outcome but would have used the Privileges or Immunities Clause. Justice Stevens, dissenting, found no case holding that “liberty” encompasses a right to keep and bear arms. Justice Breyer again argued gun policy is a question for legislatures, not courts.
Patrick’s take. This is where I part with Breyer. States and cities do not get to impede a Second Amendment right, though that is a different question from whether a given policy is wise. The Court still had not said which weapons the right covers. It still hasn’t.
CALLED IN ADVANCE
2022
NYSRPA v. Bruen
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6–3 · AS THE PAPER PREDICTED
Written on January 25, 2022, weeks after the Court heard argument, the paper said New York’s carry-licence law “will likely not stand.” On June 23, 2022 the Court struck it down, six to three: the outcome, the margin, and the reasoning, called five months early.
Open the prediction
The paper’s final section went out on a limb:
“In a court that leans six to three, favoring conservatism, the New York law will likely not stand… one cannot envision a bench that would restrict the Second Amendment now or in the near future.”
From the paper, January 25, 2022, before the ruling
Justice Thomas wrote for a 6–3 majority, exactly the split the paper named, striking down New York’s requirement that applicants show a special need to carry a handgun outside the home. The Court also filled the gap the paper had flagged in Heller, setting the standard future gun laws are judged by: consistency with the nation’s historical tradition of firearm regulation.
The call held. A sophomore term paper read the bench correctly. This square was added for the website; the prediction is quoted from the original submission.
Where the paper lands. I agree with the outcome in every case here, majority and precedent alike. “The people” means something broader than “the militia,” the right includes self-defence, and “shall not be infringed” binds every level of government. Miller is right that some weapons fall outside the amendment; the Court’s unfinished work is saying which.
Sources: opinions at Justia and Oyez for Cruikshank (92 U.S. 542), Presser (116 U.S. 252), Miller (307 U.S. 174), Heller (554 U.S. 570), McDonald (561 U.S. 742), Bruen (597 U.S. 1); Stowell, Regent University Law Review 26:2 (2014); Janda et al., The Challenge of Democracy, 13th ed.; Totenberg, NPR, 3 November 2021. Term paper, January 25, 2022, Colorado State University.
