The Second Amendment and Gun Control

How the Supreme Court Has Historically ruled on Gun Control

The U.S. Supreme Court had astonishingly little to say about the Second Amendment before the 21st century, but recent rulings have clarified the Court's position on the right of Americans to bear arms. Here's a summary of some of the major decisions handed down since 1875. 

United States v. Cruikshank (1875)

Man resting hands on gun display case, mid-section
Paul Edmondson/The Image Bank/Getty Images

In a racist ruling that primarily functioned as a way to disarm black residents while protecting white Southern paramilitary groups, the Supreme Court held that the Second Amendment applied only to the federal government. Chief Justice Morrison Waite wrote for the majority:

"The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government ... "

Because Cruikshank deals only in passing with the Second Amendment, and because of the distressing historical context surrounding it, it's not an especially useful ruling. It remains frequently cited, however, perhaps because of the lack of other pre-Miller rulings on the function and scope of the Second Amendment. The U.S. v. Miller decision would be another 60-plus years in the making. 

United States v. Miller (1939)

Another frequently-cited Second Amendment ruling is United States v. Miller, a challenging attempt to define the Second Amendment's right to bear arms on the basis of how well it serves the Second Amendment's well-regulated-militia rationale. Justice James Clark McReynolds wrote for the majority:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense."​

The emergence of a professional standing army — and later, the National Guard — deprecated the citizen militia concept, suggesting that a firm application of the Miller standard would render the Second Amendment largely irrelevant to contemporary law. It can be argued that this is exactly what Miller did until 2008. 

The U.S. Supreme Court decided to strike down a law on Second Amendment grounds for the first time in U.S. history in a 5-4 ruling in 2008. Justice Scalia wrote for the narrow majority in District of Columbia v. Heller: 

"Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, 'A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.' That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause ...

"The first salient feature of the operative clause is that it codifies a 'right of the people.' The unamended Constitution and the Bill of Rights use the phrase 'right of the people' two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ('The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people'). All three of these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body ...

"We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."

Justice Stevens' view represented the four dissenting justices and was more in alignment with the traditional position of the Court:

"Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there; we ourselves affirmed it in 1980 ... No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.

"The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; post-enactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself ...

"Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations ...

"The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice."
More »

Going Forward

Heller paved the way for another landmark ruling in 2010 when the U.S. Supreme Court granted the right to keep and bear arms to individuals in every state in McDonald v. Chicago. Time will tell whether the old Miller standard ever resurfaces or if these 2008 and 2010 decisions are the wave of the future.