The second amendment of the US 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.

As far as I understand, the part about the well regulated milita is not considered to be necessary today, and the second amendment guarantees a right to gun ownership for self-defense.

But there are limits on gun ownership today, so I don't see where exactly the line is on regulation that is allowed by the second amendement and which kind of regulations would violate the second amendment.

Which restrictions on gun ownership have the Supreme Court ruled are a violation of the 2nd Amendment?

Which restrictions on gun ownership have the Supreme Court ruled are not a violation of the 2nd Amendment?

  • That's why we have courts, to decide what the limits and scope of such statements are. – Robert Harvey Dec 31 '12 at 17:52
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    The Supreme Court would be the only one that could determine that line, everything else would be conjecture. The only possible answers here are what has the SC ruled in the past. Is that what you are looking for? – user1873 Dec 31 '12 at 18:18
  • @MadScientist, I have edited your question to an answerable state. Let me know if this gets at the information you are seeking. – user1873 Dec 31 '12 at 20:32
  • @user1873 I'm not sure I want to restrict my question only to past supreme court decisions. I am not so much interested in details, but in a rough guideline based on the past decisions of the court. I'm more interested in the idea or philosophy behind these decisions than an exact prediction of where the line lies. – user164 Dec 31 '12 at 20:52
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    A rough guideline will cite previous case law, and from that predictions can be made. I don't think the phrasing limits the answer, but you are welcome to roll it back or make it clearer what you want. The problem previously is that it is asking for examples (possibly unlimited) of what future laws would violate the 2nd. That can only be "determined" by what current limits exist that are permissible, and those ruled unconstitutional. – user1873 Dec 31 '12 at 21:44

The most recent precedent from the Court on this issue comes in the form of District of Columbia v. Heller and McDonald v. Chicago which were decided in 2008 and 2010 respectively. The holding in each case was substantively similar as McDonald primarily served to incorporate the 2nd Amendment via the 14th Amendment (since Heller applied to the District of Columbia only which is governed by the federal government directly) to the states and did not really set new gun ownership precedent.

Heller dealt with a strict District of Columbia law that banned ownership of any handgun in the district and also required that any gun (even rifles and shotguns) should be kept unloaded and under the control of a trigger lock at all times when not in use. The Court's ruling went as follows:

  • The clause "A well regulated Militia, being necessary to the security of a free State" is merely colorful language and has no legal meaning. It does not expand or limit the scope of the following clause, which should be taken on its own.
  • The right to bear arms as stated in the Second Amendment is not unlimited. Congress has the right to limit the manner and intent that they are used. Indeed, the Court upholds prohibitions on felons and the mentally ill owning guns explicitly in the decision.
  • Handguns are "arms" for the purposes of the 2nd Amendment. Since there are lawful uses of arms (as described in the 2nd Amendment - i.e. the natural right of defense) no class of arms can be arbitrarily banned in all cases and for all uses.
  • The requirement that all guns be unloaded, disassembled and/or under the control of a trigger lock while not in use has a direct, negative, effect on a legitimate lawful use of a protected "arm". As such, Congress does not have even a rational basis to implement this particular type of limitation on gun ownership.

In McDonald the Court extrapolated these same requirements to the states.

Importantly, the Court did not overturn existing precedent that some in the camp favoring a limit to gun ownership rights point to as an indication that the militia clause is important, but rather found a way to uphold that precedent by clarifying its interpretation. In United States v. Miller the Court upheld limits in the type of legal firearms found in the National Firearms Act of 1934 (specifically fully automatic rifles and short-barreled shotguns) because they would not be needed by a well regulated militia to efficiently carry out their duties.

However, the Court explained in Heller that the Miller precedent from 1939 is the same precedent at work in Heller in 2008. This is because the Court in Miller was not claiming that a well regulated militia is required for gun ownership, but rather that it can be used as a guide as to the appropriate manner and intent of individual gun ownership. That the Court squared their ruling in Heller with the existing precedent in Miller, that could be seen to underline the importance of the militia clause, the Court actually broadened the ruling in Heller even further than it otherwise would have been if it just overturned the ruling in Miller.

Applying this precedent going forward is squarely a job for the Supreme Court because even though some limitations on gun ownership might seem directly in line with the Court's thinking in Heller those specific provisions will still need to undergo at least a rational basis test on its own merits. For example, this reasoning might sound like it would support the limiting of high capacity magazines as has been recently discussed in the media because it would not be required for a militia to efficiently perform its duties (Miller) and is only a limit on the manner and intent of the use of otherwise legal arms (Heller). However, Congress would have to demonstrate at least a rational basis (perhaps even more in the view of the Court at that time) to justify the law and that interpretation will need to be made by the Court at that time on its individual merits. Until that day, this existing case law is the best guide we have for projecting the viability of future gun laws.

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    Contrary to popular belief, the Supreme Court did not uphold Miller's conviction, nor did it make any determination about whether sawed-off shotguns were protected firearms. Before the Supreme Court heard the case, Miller's indictment had been quashed. Since Miller wasn't under indictment, he had no obligation to show up in court and present any arguments, so he didn't. The only legal effect of the Supreme Court's decision was to allow the government to proceed to trial, where Miller would be allowed/expected to present evidence. – supercat Oct 3 '17 at 22:31
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    Had the case gone to trial, Miller could have presented evidence that sawed-off shotguns had proved militarily useful in World War I. As it happened, however,the government didn't proceed to trial, because Miller was unable to fight off criminals using only a pistol (rather than, e.g., the shotgun for which the government had sought to prosecute him) and was consequently dead. – supercat Oct 3 '17 at 22:36

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