What are the limits of the second amendment?

Question

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?

Answer 1

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.

Answer 2

What are the limits of the second amendment?

"Shall not be infringed" sums it up about as clearly and concisely as is humanly possible.

the part about the well regulated milita is not considered to be necessary today

"Being necessary to the security of a free state" is a timeless statement, notwithstanding the gullibility of some modern folk. A well-regulated militia is a Constitutional mandate. By definition, we are not living in a free state if we do not fully maintain said well-regulated militia.

Also by definition, said militia is not to be a standing army, but rather is defined in US Federal Code as

"all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States"

This is the mechanism by which the security of a free state is ensured. The Second Amendment is unambiguous about both the purpose and extent of this right.

the second amendment guarantees a right to gun ownership for self-defense.

Correct, although this also extends to mutual 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.

All such regulations violate the Second Amendment. "Shall not be infringed" is quite express. Any and all arms that serve the end of securing a free state cannot constitutionally be limited or regulated in any way. Any such regulation would by very nature limit the freedom of the Authorized Militia of the United States to perform their proper function, and constitute an infringement.

However, we must acknowledge that we live in a society that presently tolerates various unconstitutional edicts and practices. In effect, there are two different governments in America today. Just because we have a Constitution doesn't mean that our elected officials or appointees actually uphold or enforce it. Presently, conflicts abound between the Constitution and contrary rulings advanced by various legislatures, judges, officers and executives. The existence or absence of such a discrepancy in written policy does not guarantee that justice will be done, nor that rights will be properly upheld, nor that punishment will not be inflicted. Each person is advised that he is responsible for knowing local, state and federal laws and regulations and may be subject to punishment by unhinged agencies that do not regard the Constitution as the Supreme Law of the land, or who "interpret" citizens' rights out of existence, or if while ostensibly exercising a legitimate Constitutional right, an individual violates a different law that is constitutional and the transgression of which is therefore punishable. I am not a lawyer.

The only reason there is any debate on the subject is that there are people who want this Amendment and guaranteed right not to exist, or who wish to undermine it and control the people in significant, unconstitutional ways.

But the Second Amendment is very clear.

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.