The History of Gun Rights in America

A Timeline of the 2nd Amendment

gun rights rally
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After going virtually unchallenged for more than 100 years, the right of Americans to own guns has developed as one of today’s hottest political issues. The debate is most likely going nowhere until an inevitable and definitive ruling is handed down by the nation’s courts: Does the Second Amendment apply to individual citizens?

Gun Rights Before the Constitution

Though still British subjects, colonial Americans considered the right to bear arms as necessary for fulfilling their natural right to defend themselves and their property.

In the midst of the American Revolution, the rights that would later be expressed in the Second Amendment were being explicitly included in early state constitutions. The Pennsylvania Constitution of 1776, for example, stated that “the people have a right to bear arms for the defence of themselves and the state.”

1791: The Second Amendment Is Ratified

The ink had hardly dried on the ratification papers before a political movement was undertaken to amend the Constitution to declare gun ownership as a specific right.

A select committee assembled to review amendments proposed by James Madison authored the language that would become the Second Amendment to the Constitution: “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.”

Prior to ratification, Madison had hinted at the need for the amendment. Writing in Federalist No. 46, he contrasted the proposed American federal government to European kingdoms, which he criticized as being “afraid to trust the people with arms.” Madison went on to assure Americans that they would never need to fear their government, as they had the British Crown because the Constitution would ensure them “the advantage of being armed ...” 

1871: NRA Is Founded

The National Rifle Association was founded by a pair of Union soldiers in 1871, not as a political lobby but in an effort to promote the shooting of rifles. The organization would grow to become the face of America's pro-gun lobby in the 20th Century.

1822: Bliss v. Commonwealth Brings "Individual Right" Into Question

The Second Amendment’s intent for individual Americans first came into question in 1822 in Bliss v. Commonwealth.

The court case arose in Kentucky after a man was indicted for carrying a sword concealed in a cane. He was convicted and fined $100.

Bliss appealed the conviction, citing a provision in the Commonwealth’s Constitution that states: “The right of the citizens to bear arms in defense of themselves and the state, shall not be questioned.”

In a majority vote with just one judge dissenting, the court overturned the conviction against Bliss and ruled the law unconstitutional and void.

1856: Dred Scott v. Sandford Upholds Individual Right

The Second Amendment as an individual right was affirmed by the U.S. Supreme Court in its Dred Scott v. Sandford decision in 1856. The nation’s highest court opined on the intent of the Second Amendment for the first time with the rights of slaves in question, writing that affording slaves the full rights of American citizenship would include the right “to keep and carry arms wherever they went.”

1934: National Firearms Act Brings About First Major Gun Control

The first major effort to eliminate private ownership of firearms came with the National Firearms Act of 1934. A direct response to the rise of gangster violence in general and the Saint Valentine’s Day massacre in particular, the National Firearms Act sought to circumvent the Second Amendment by controlling firearms through a tax excise—$200 for each gun sale.

The NFA targeted fully-automatic weapons, short-barreled shotguns and rifles, pen and cane guns, and other firearms defined as “gangster weapons.”

1938: Federal Firearms Act Requires Licensure of Dealers

The Federal Firearms Act of 1938 required that anyone selling or shipping firearms must be licensed through the U.S. Department of Commerce. The Federal Firearms License (FFL) stipulated that guns could not be sold to persons convicted of certain crimes. It required that sellers log the names and addresses of anyone to whom they sold guns.

1968: Gun Control Act Ushers in New Regulations

Thirty years after America’s first sweeping reform of gun laws, the assassination of President John F. Kennedy helped usher in new federal legislation with wide-ranging implications. The Gun Control Act of 1968 prohibited mail order sales of rifles and shotguns.

It increased license requirements for sellers and broadened the list of persons prohibited from owning a firearm to include convicted felons, drug users and the mentally incompetent.

1994: The Brady Act and Assault Weapons Ban

Two new federal laws passed by a Democrat-controlled Congress and signed by President Bill Clinton in 1994 became the hallmark of gun control efforts in the latter 20th Century. The first, the Brady Handgun Violence Protection Act, required a five-day waiting period and background check for the sale of handguns. It also required that the National Instant Criminal Background Check System be created.

The Brady Act had been spurred by the shooting of press secretary James Brady during the attempted assassination of President Ronald Reagan by John Hinckley Jr. on March 30, 1981. Brady survived but was left partially paralyzed as a result of his wounds

In 1998, the Department of Justice reported that the pre-sale background checks had blocked an estimated 69,000 illegal handgun sales during 1977, the first year the Brady Act was fully enforced. 

The second law, the Assault Weapons Ban—officially entitled the Violent Crime Control and Law Enforcement Act—banned a number of rifles defined as “assault weapons,” including many semi-automatic and military-style rifles such as the AK-47 and SKS.

2004: The Assault Weapons Ban Sunsets

A Republican-controlled Congress refused to pass the reauthorization of the Assault Weapons Ban in 2004, allowing it to expire. President George W. Bush was criticized by gun control supporters for not actively pressuring Congress to renew the ban, while gun rights advocates criticized him for indicating that he would sign a reauthorization if Congress passed it.

2008: D.C. v. Heller Is a Major Setback for Gun Control

Gun rights proponents were thrilled in 2008 when the U.S. Supreme Court ruled in District of Columbia v. Heller that the Second Amendment extends gun ownership rights to individuals. The decision affirmed an earlier decision by a lower appeals court and struck down handgun bans in Washington D.C. as unconstitutional.

The Court ruled that the District of Columbia’s total ban on handguns in the home was unconstitutional because the ban was contrary to the Second Amendment’s purpose of self-defense — an intent of the amendment never before acknowledged by the Court.

The case was lauded as the first Supreme Court case to affirm the right of an individual to keep and bear arms in accordance with the Second Amendment. The ruling applied only to federal enclaves, however, such as the District of Columbia. Justices did not opine on the Second Amendment’s application to the states.

Writing in the Courts majority opinion, Justice Antonin Scalia wrote that the “people” protected by the Second Amendment are the same “people” protected by the First and Fourth Amendments. “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” 

2010: Gun Owners Score Another Victory in McDonald v. Chicago

Gun rights supporters scored their second major Supreme Court victory in 2010 when the high court affirmed an individual's right to own guns in McDonald v. Chicago.

The ruling was an inevitable follow-up to D.C. v. Heller and marked the first time that the Supreme Court ruled that the provisions of the Second Amendment extend to the states. The ruling overturned an earlier decision by a lower court in a legal challenge to Chicago’s ordinance banning the possession of handguns by its citizens.

Current Legislation With 2nd Amendment Implications

To date, 2017 has seen the introduction in Congress of two new gun control-related pieces of legislation. These bills are:

The SHARE Act: Introduced in September 2017, the “Sportsmen Heritage and Recreational Enhancement Act,” or SHARE Act (H.R. 2406) would expand access to public land for, hunting, fishing, and recreational shooting; and reduce the current federal restrictions on purchasing firearm silencers, or suppressors.

The Background Check Completion Act: Introduced on October 5, 2017, less than a week after the deadly October 1 mass shooting in Las Vegas, the Background Check Completion Act would close a current loophole in the Brady Handgun Violence Prevention Act that allows gun sales to proceed if a background check is not completed after 72 hours, even if the gun buyer is not legally allowed to purchase a gun.

Updated by Robert Longley