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2nd Amendment – Right to Bear Arms

Does the 2nd Amendment protect State Sovereignty or Individual Rights?

District of Columbia v. Heller

In the landmark case of District of Columbia v. Heller (2008), the Supreme Court overturned its previous position that individuals (other than those enrolled in a state militia) did not possess 2nd Amendment rights. Heller involved a police officer who was refused a permit to own a private handgun in the District of Columbia. Justice Antonin Scalia, delivering the opinion of the Court, concluded: “There seems to us no doubt, on the basis of both text and history, that the 2nd Amendment conferred an individual right to keep and bear arms.” Thus the Court determined, in a split 5-4 decision, that the relevance of the 2nd Amendment did not expire with the extinction of state militias. He added that “of course the right was not unlimited, just as the First Amendment’s right of free speech was not.” Therefore, certain reasonable limitations on the right to keep and bear arms could be imposed. But to pass constitutional muster, the government’s restrictions could not make it “impossible for citizens to use arms for the core lawful purpose of self-defense.”

Justice John Paul Stevens, in dissent, noted that the Court’s majority was overturning the more restricted interpretation of the 2nd Amendment as suggested in Miller and as followed by many subsequent lower court judgments. He objected that the original purpose and stated meaning of the 2nd Amendment was limited to the protection of state militias and the prevention of standing armies. According to Stevens, those who drafted the 2nd Amendment intended only to protect “the sovereignty of the several States,” not the individual rights of gun owners.

It was not until the 2008 Heller case, then, that the Court decided that the 2nd Amendment, like the other rights named in the first eight Amendments, afforded individuals protections from federal intrusions. But Heller was only the first part of a one-two punch. Just two years later, the Court used the Due Process Clause of the Fourteenth Amendment to “incorporate” that right “as against the states.” This is very significant because the most restrictive regulations on guns have historically come from state governments.