The Second Amendment

Many of the Framers, particularly the Anti-Federalists, were deeply suspicious of professional standing armies. They had seen, in English and colonial history, how monarchs used professional soldiers to oppress the people. The Declaration of Independence listed as a grievance against King George III that he had kept standing armies in the colonies without the consent of the legislatures. The solution many favored was reliance on a citizen militia, ordinary people who owned their own weapons and could be called into service, rather than a permanent professional military that might become an instrument of tyranny.

The idea was already written into state law. George Mason's Virginia Declaration of Rights of 1776 called a well-regulated militia, composed of the body of the people, the proper, natural, and safe defense of a free state, and declared standing armies in time of peace dangerous to liberty.

The Constitution answered part of the fear directly. Article I lets Congress raise armies but bars any appropriation for the Army lasting longer than two years, so every new Congress must decide again whether to fund one.

Congress then defined the militia in the Militia Act of 1792, which required every free, able-bodied white male citizen aged 18 to 45 to enroll and to supply his own musket, bayonet, and ammunition. The Militia Act of 1903 reorganized state militias into the modern National Guard, part of today's U.S. armed forces.

The founding era also recognized a natural law right to self-defense that predated the Constitution. Sir William Blackstone's Commentaries on the Laws of England, widely read by American lawyers and founders, described the right to arms as an auxiliary right supporting the fundamental rights of personal security and personal liberty. Several state constitutions ratified before or alongside the federal Constitution explicitly protected the individual right to bear arms for self-defense, independent of militia service.

Blackstone published his Commentaries between 1765 and 1769, and they became the most widely owned law book in the colonies. He listed having arms for defense as the fifth and last auxiliary right, available when laws proved insufficient to restrain violence.

Pennsylvania's Declaration of Rights of 1776 stated that the people have a right to bear arms in defense of themselves and the state, and Vermont's 1777 constitution used nearly the same words. These early state charters are described on the pre-Constitution history page.

Scholars still disagree about how much weight this tradition carries. Some historians argue the founders thought of arms mainly in civic and militia terms, while a 1989 law review article by Sanford Levinson, The Embarrassing Second Amendment, helped revive academic interest in the individual-right reading later adopted in Heller. The Bill of Rights page covers how the amendments were drafted.

The original Constitution gave Congress broad powers over the militia, including organizing, arming, and disciplining it. This alarmed Anti-Federalists who feared federal control over the states' armed forces. The Second Amendment was in part a response to this concern, ensuring that the right of the people to be armed could not be eliminated by federal action, preserving the militia as a counterweight to federal military power.

The militia clauses in Article I, Section 8 let Congress call out the militia to execute federal laws, suppress insurrections, and repel invasions, and to provide for organizing, arming, and disciplining it. The states kept the power to appoint officers and to train the militia, but only according to the discipline Congress prescribed.

James Madison introduced the amendment in the House on June 8, 1789. His draft included a clause excusing people with religious objections from being compelled to bear arms, which Congress later dropped. The framers page profiles Madison and the other drafters.

Federal authority has only grown since. In Perpich v. Department of Defense (1990), the Supreme Court unanimously held that Congress could send National Guard units on overseas training without the consent of a state's governor, confirming how much control Washington now holds over the modern militia. The armed forces page explains the Guard's dual role.

The English Bill of Rights of 1689 had declared that Protestant subjects may have arms for their defence suitable to their conditions and as allowed by law. American colonists viewed this right as part of the English common law tradition they had inherited. After experiencing what they viewed as the Crown's attempts to disarm colonists, including the seizure of military stores at Lexington and Concord in 1775, they codified the right in the Constitution.

The 1689 provision followed the Glorious Revolution, which removed King James II. Parliament's complaint was that James had disarmed Protestant subjects while arming Catholics in violation of law, and the new guarantee was limited by class and religion, applying to Protestants as allowed by law.

Tension over colonial arms began before the first shots. In September 1774, British troops seized gunpowder stored near Boston in what became known as the Powder Alarm, and on April 19, 1775, regulars marched on Concord to seize arms and supplies, starting the Revolutionary War. The road to the Revolution traces these events.

When the states ratified the Constitution, several conventions asked for an arms guarantee. New Hampshire proposed that Congress never disarm any citizen except those in actual rebellion, and Virginia, New York, and North Carolina proposed similar language. Those proposals became part of the Bill of Rights.

The Heller majority read "well regulated" in its 18th-century sense of properly trained and disciplined, not heavily controlled by government regulation. It cited historical evidence that "well regulated" referred to a militia that was drilled and equipped properly. The dissent argued the phrase demonstrates the Framers had organized military forces in mind, not individual gun ownership. The word "militia" appears in Article I, giving Congress power to organize and arm the militia. The dissent read this as a sign the Framers understood militia to mean an organized force distinct from the general population, while the majority held that the militia was all able-bodied men.

Founding-era writers used the term the same way. In Federalist No. 29, Alexander Hamilton argued that making the whole population into a well-regulated militia would require constant drilling and exercise, which he considered impractical for ordinary citizens with farms and trades to tend.

The Heller majority treated the opening words as a prefatory clause that announces a purpose but does not limit the operative clause that follows. Justice John Paul Stevens's dissent argued that the stated purpose defines the right's scope. Heller appears among the landmark Supreme Court cases.

The text of the militia clauses in Article I is often cited for the training reading: Congress was given power to provide for disciplining the militia, while the states were left to carry out the training Congress prescribed.

Some scholars read "free State" to mean a politically free republic, making this an argument for the individual rights view: an armed populace is necessary to the survival of political freedom. Others read it more literally as referring to the security of the individual states of the union, supporting the collective or militia-based interpretation. The Heller majority took the former view.

The phrase came from existing American writing. The Virginia Declaration of Rights of 1776 had described a well-regulated militia as the proper, natural, and safe defense of a free state, a formula the drafters of the amendment adapted.

Justice Scalia noted in Heller that the Constitution usually refers to the individual states simply as states, and argued that free state was a term of art in political writing meaning a free country or polity, rather than one of the thirteen states in particular.

Two years after Heller, the Court applied the right against state and local governments in McDonald v. City of Chicago through the Fourteenth Amendment, so the free-state debate now affects laws everywhere, not only federal ones. The founders' choice of a republic explains what they meant by a free government.

This phrase appears in the First and Fourth Amendments, and the Ninth uses very similar wording (rights "retained by the people"), always referring to individual rights. The Heller majority used this to argue the Second Amendment protects an individual right just as those other amendments do. Critics noted that the Second Amendment also references the militia, making the collective purpose more explicit than in other amendments using the phrase.

The Court had used the phrase this way before Heller. In United States v. Verdugo-Urquidez (1990), it described the people in the First, Second, and Fourth Amendments as a term of art referring to a class of persons who are part of the national community.

Before Heller, most federal appeals courts read the amendment as protecting a collective right tied to militia service. The first to adopt the individual reading was the Fifth Circuit in United States v. Emerson (2001), which nonetheless upheld the gun restriction at issue in that case.

The executive branch took a position as well. In 2004 the Justice Department's Office of Legal Counsel issued an opinion concluding that the Second Amendment secures a personal right of individuals, not only a right of states or of people serving in organized militias.

The Heller majority analyzed each word separately. To "keep" arms means to possess them in the home. To "bear" arms means to carry them. The dissent argued "bear arms" was a military term in the 18th century, meaning to serve as a soldier. Bruen later confirmed that the right to "bear" arms extends to carrying firearms in public for self-defense.

Linguistic research published after Heller searched large collections of founding-era documents and found that most uses of bear arms referred to military service, though the phrase also appeared in nonmilitary senses. Scholars on both sides have used these studies to support their readings.

Bruen struck down New York's proper-cause requirement, which dated to the Sullivan Law of 1911 and its 1913 amendments. Five other states and the District of Columbia had similar discretionary may-issue systems and had to switch to objective permit criteria. The New York state page covers the state's government.

At the other end of the spectrum, a majority of states no longer require any permit to carry a handgun. By 2024, 29 states had adopted permitless carry, sometimes called constitutional carry, for adults who are legally allowed to own a firearm.

Heller held that "arms" refers to weapons in common use for lawful purposes. It does not cover weapons that are dangerous and unusual. The Court has since held (Caetano v. Massachusetts, 2016) that the term extends to weapons not in existence at the founding, as long as they are in common use. Whether this covers semi-automatic rifles, large-capacity magazines, and other modern firearms is the subject of ongoing litigation as of 2026.

Caetano was decided without full briefing, in a short unsigned opinion. Justice Samuel Alito, joined by Justice Clarence Thomas, wrote separately that stun guns are widely owned and would have reversed the conviction outright rather than sending the case back.

Congress regulates some arms heavily. The National Firearms Act of 1934 requires registration of machine guns, short-barreled shotguns and rifles, and suppressors. Its $200 tax still applies to machine guns and destructive devices, but a 2025 budget law cut the tax to $0 for the other items starting January 1, 2026. The Firearm Owners Protection Act of 1986 froze civilian ownership of machine guns to those registered before May 19, 1986. See how a bill becomes law.

Federal definitions matter as much as the Constitution. In Garland v. Cargill (2024), the Supreme Court held 6-3 that bump stocks, which let a semi-automatic rifle fire rapidly, are not machine guns under federal law, invalidating an ATF rule adopted after the 2017 Las Vegas shooting.

Gun rights advocates argue that the word "infringed" is notably strong, stronger than "abridged" (used in the First Amendment) or "violated" (used in the Fourth Amendment). Heller acknowledged the right is not unlimited and that some regulations, including bans on possession by felons, conditions on commercial sales, and prohibitions on carrying in sensitive places like schools and government buildings, remain constitutionally permissible. Bruen later added that licensing systems with objective standards, including background checks, can continue.

Heller described its list of permissible rules as presumptively lawful regulatory measures, including longstanding bans on possession by felons and the mentally ill, bans in sensitive places, and conditions on the commercial sale of arms. The Court added that the list was not exhaustive.

The modern federal framework began with the Gun Control Act of 1968, passed after the assassinations of Martin Luther King Jr. and Robert F. Kennedy. The Brady Handgun Violence Prevention Act of 1993 required background checks, run since November 1998 through the FBI's National Instant Criminal Background Check System in the Justice Department.

The most recent major federal gun law, the Bipartisan Safer Communities Act of June 2022, added enhanced checks for buyers under 21 and funded state crisis-intervention programs. It passed the Senate 65-33, the first significant federal gun legislation in nearly 30 years.

Heller said the right protects weapons in common use for lawful purposes and does not protect dangerous and unusual weapons. Semi-automatic rifles including the AR-15 are among the most commonly owned firearms in the United States. Gun rights advocates argue their common ownership places them squarely within Heller's protection. Gun regulation advocates argue their capacity for rapid, lethal fire makes them more analogous to military weapons outside the scope of civilian protection, and that modern semi-automatic weapons are a dramatic technological change, which Bruen says calls for a looser historical comparison. This question is actively litigated in federal courts as of 2026.

State bans are not new. California passed the first one in 1989 after a shooting at a Stockton elementary school, and about ten states and the District of Columbia now restrict some semi-automatic rifles. A federal ban enacted in 1994 expired in September 2004 under its ten-year sunset clause.

The firearm industry's trade group, the National Shooting Sports Foundation, estimates that more than 32 million AR-style and similar rifles were made for or imported into the U.S. market from 1990 through 2023, a figure gun rights advocates cite as proof that the rifles are in common use for lawful purposes.

The Supreme Court has so far declined to decide the question. In June 2025 it turned away a challenge to Maryland's ban in Snope v. Brown, though Justice Brett Kavanaugh wrote that the Court should address the issue within a term or two, and three other justices would have heard the case. On June 30, 2026, the Court agreed to hear Viramontes v. Cook County, a challenge to Illinois's Cook County ban, with argument set for December 2, 2026.

Several states ban magazines that hold more than ten rounds of ammunition. Courts have split on whether large-capacity magazines are arms protected by the Second Amendment at all. Some courts have found they are not arms and dismissed challenges at step one of the Bruen analysis. Others have found they are arms but that bans have sufficient historical analogues. The Washington Supreme Court upheld that state's large-capacity magazine ban in 2025. The challengers in Duncan v. Bonta asked the Supreme Court to review California's ban, but as of mid-2026 the Court had repeatedly relisted the petition without granting it; the assault-weapons case it did accept, Viramontes v. Cook County, asks only about rifles, not magazine limits.

The federal assault weapons ban of 1994 also limited new magazines to ten rounds, and that limit expired with the rest of the law in 2004. Since then, magazine limits have been set state by state, most at ten rounds.

In March 2025, the full Ninth Circuit upheld California's ban in Duncan v. Bonta, reasoning that large-capacity magazines are accessories rather than arms themselves, and that the ban fits a tradition of regulating especially dangerous uses of weapons.

Challengers argue that magazines holding more than ten rounds come standard with many of the most popular handguns and rifles, so a ban reaches ordinary firearms. Congress has considered both restoring a national limit and preempting state limits, without passing either; see how a bill becomes law.

Heller said governments may prohibit carrying in sensitive places like schools and government buildings. Bruen extended the right to public carry. After Bruen, states including New York and California attempted to designate broad categories of locations as sensitive places, including bars, churches, and public transit. Courts have struck down some of these designations while upholding others, attempting to identify which locations have historical analogs to founding-era sensitive places. The outer boundary of what counts as a sensitive place remains unsettled.

Within days of Bruen, New York passed the Concealed Carry Improvement Act, which designated more than twenty categories of sensitive places, including subways, parks, and houses of worship. The Second Circuit upheld most of the list, and reaffirmed that ruling in 2024 after the Supreme Court asked it to reconsider in light of Rahimi.

Some states also reversed the default on private property, barring carry on property open to the public unless the owner posts permission. Federal appeals courts have split on those rules, with the Second Circuit striking down New York's version and the Ninth Circuit largely upholding Hawaii's. The Supreme Court settled the question on June 25, 2026, in Wolford v. Lopez, striking down Hawaii's no-carry default rule 6-3 in an opinion by Justice Alito.

Federal law has its own school rule. The Gun-Free School Zones Act of 1990 was struck down in United States v. Lopez (1995) as beyond Congress's commerce power, one of the landmark Supreme Court cases, and Congress re-enacted it in 1996 with a requirement that the gun have moved in interstate commerce.

Heller listed prohibitions on felon possession as presumptively lawful. Under Bruen's historical test, however, challengers have argued that the founding era did not categorically disarm all felons, particularly those convicted of nonviolent offenses. The federal felon-in-possession statute has faced numerous post-Bruen challenges. In January 2026, the Supreme Court denied certiorari in dozens of these cases. It had agreed in October 2025 to hear United States v. Hemani, involving marijuana users and gun possession. On June 18, 2026, the Court ruled 9-0, in an opinion by Justice Gorsuch, that the federal ban on drug users possessing guns could not be applied to Ali Hemani based on his marijuana use alone, without a showing that he was dangerous. The ruling was narrow: it did not strike down the law, and it did not decide whether the ban can be applied to people who are addicted or currently intoxicated.

The federal ban covers anyone convicted of a crime punishable by more than one year in prison, regardless of the sentence actually served. It took its current form in the Gun Control Act of 1968; an earlier 1938 law had covered only people convicted of certain violent crimes.

The leading challenge is Range v. Attorney General, in which the full Third Circuit held the ban unconstitutional as applied to Bryan Range, whose only conviction was a 1995 food stamp fraud offense classified as a misdemeanor under state law but punishable by up to five years.

Federal law has long allowed people to ask the government to restore their gun rights, but Congress blocked funding for processing those requests starting in 1992. In 2025 the Justice Department announced plans to revive the relief process.