Second Amendment Summary

  • Last updated on November 11, 2022

Amendment to the U.S. Constitution and part of the Bill of Rights that provided the right of people to keep and bear arms.

The Second Amendment to the U.S. Constitution states: “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.” In comparison to other controversial constitutional guarantees, such as freedom of speech, the Supreme Court has had little to say about the Second Amendment. The Court has generally upheld criminal laws regarding firearms, but it has done so without attempting to establish a guiding interpretation of the amendment. Although the Court overturned two federal gun laws in two decisions during the 1990’s, it did not rule on the laws as they pertained to the Second Amendment. Rather, in keeping with the Court’s states’ rights conservatism under Chief Justice William H. Rehnquist, the Court ruled on the laws as they pertained to the limits of the federal government’s power to impose its laws on state and local authorities.

In Printz v. United States[case]Printz v. United States[Printz v. United States] (1997), Jay Printz, the sheriff of Ravalli County, Montana, challenged a federal law that required him to perform background checks on people in his jurisdiction who sought to buy guns. The Court accepted his argument that the federal government may not compel the states to implement federal regulations, overturning the portion of the federal act that required local law enforcement agencies to conduct background checks. Before that, United States v. Lopez[case]Lopez, United States v.[Lopez, United States v.] (1995) reached the Court after a student, Alfonso Lopez, was charged with violating the Gun-Free School Zones Act of 1990 when he carried a concealed handgun into a high school. The Court upheld an appellate ruling that the federal act exceeded the authority of Congress to legislate under the interstate commerce clause. To allow the act to stand, the Court wrote, would “require this Court to pile inference upon inference in a manner that would bid fair to convert congressional commerce clause authority to a general police power of the sort held only by the States.” Printz and Lopez did not address the Second Amendment or rule on how it is to be interpreted. Nor is the controversy settled by a review of Court decisions touching on the Second Amendment.

Early Decisions

In United States v. Cruikshank[case]Cruikshank, United States v.[Cruikshank, United States v.] (1876), William Cruikshank, a member of the Ku Klux Klan, was tried in federal court for violating the federal civil rights laws protecting the African American victims of a murderous riot he led. The trial court found Cruikshank guilty of conspiring to deprive African Americans of their right to bear arms. The Supreme Court, however, ruled in favor of Cruikshank, arguing that the Second Amendment applied only to Congress and that people must look to local governments for protection against violations of their rights. The Cruikshank decision, like the Slaughterhouse Cases (1873), interpreted against use of the Fourteenth Amendment as a means to enforce the Bill of Rights at the state and local level. This interpretation of the Fourteenth Amendment, however, has since been abandoned in other decisions not relating to the Second Amendment.

The next major Second Amendment case was Presser v. Illinois[case]Presser v. Illinois[Presser v. Illinois] (1886). Herman Presser led an armed group called the Lehr und Wehr Verein (Educational and Protective Association) on a march through the streets of Chicago. Presser argued that the Illinois law under which he was convicted was superseded by various provisions of federal law, including the Second Amendment. The Court upheld his conviction, arguing that to accept Presser’s interpretations would amount to denying the rights of states to disperse mobs.

Indications of Ambivalence

The Court in United States v. Miller[case]Miller, United States v.[Miller, United States v.] (1939) upheld the federal regulation against a shotgun’s having a barrel less than eighteen inches long on the basis that the Court had no indication that such a weapon “was…ordinary military equipment or…could contribute to the common defense.” It may be argued, therefore, that Miller indirectly defends the principle that a firearm that has some reasonable relationship to the efficiency of a well-regulated militia is protected by the Constitution. However, challenges to laws limiting civilian possession of machine guns and assault rifles, which are military weapons, have not met with success. A similar ambivalence can be inferred in Cases v. United States[case]Cases v. United States[Cases v. United States] (1943), in which the Court noted, “apparently…under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group…but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia.” The Court made this observation, however, when declining to review a challenge to a provision of the Federal Firearms Act.

In Quilici v. Village of Morton Grove[case]Quilici v. Village of Morton Grove[Quilici v. Village of Morton Grove] (1983), the Court refused to review a Second Amendment case and let stand a decision upholding an ordinance in Morton Grove, Illinois, banning possession of handguns. This decision has been cited to bolster the argument that the individual ownership of firearms is not a constitutional right, but the fact that the Court has done nothing to change the existing laws that allow individual possession of firearms undermines such an argument.

Further Reading
  • Bijlefeld, Marjolijn, ed. The Gun Control Debate: A Documentary History. Westport, Conn.: Greenwood Press, 1997.
  • Cottrol, Robert J., ed. Gun Control and the Constitution: Sources and Explorations on the Second Amendment. New York: Garland, 1993.
  • Henigan, Dennis A. Guns and the Constitution: The Myth of Second Amendment Protection for Firearms in America. Northampton, Mass.: Aletheia Press, 1996.
  • Kopel, David, Stephen Halbrook, and Alan Korwin. Supreme Court Gun Cases: Two Centuries of Gun Rights Revealed. Fairfax: Bloomfield Press, 2003.
  • Malcolm, Joyce Lee. To Keep and Bear Arms: The Evolution of an Anglo-American Right. Cambridge, Mass.: Harvard University Press, 1996.
  • Spitzer, Robert J. The Right to Bear Arms: Rights and Liberties Under the Law. Santa Barbara, Calif.: ABC-Clio, 2001.
  • Uviller, H. Richard, and William G. Merkel. The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent. Durham, N.C.: Duke University Press, 2003.

Bill of Rights

Commerce, regulation of

Cruikshank, United States v.

Fourteenth Amendment

Incorporation doctrine

Lopez, United States v.

Presser v. Illinois

Printz v. United States

States’ rights and state sovereignty

Categories: History