Reading the Second Amendment: Text, History and the Courts

The Second Amendment is a single sentence. It opens with a clause about the militia and closes with a command about a right, and much of the modern debate over its meaning has turned on how those two parts fit together.

An English Inheritance

The right did not begin in 1791. The English Bill of Rights of 1689, adopted after the Glorious Revolution, declared that Protestant subjects “may have arms for their defence suitable to their conditions and as allowed by law.” William Blackstone’s Commentaries, widely read in the colonies, treated the having of arms as an auxiliary right protecting the natural right of resistance and self-preservation. Early state constitutions carried the idea forward: Pennsylvania’s 1776 declaration of rights affirmed a right of the people to bear arms in defense of themselves and the state, and Virginia’s praised a well regulated militia drawn from the body of the people.

Drafting and Ratification

Anti-Federalists feared that Congress, given power to organize, arm and discipline the militia, might neglect or disarm the state militias and rely instead on a standing army. James Madison introduced proposed amendments in the House of Representatives on June 8, 1789, including a guarantee of the right to keep and bear arms. Congress sent twelve amendments to the states that September, and the ten that were ratified, the Second among them, took effect on December 15, 1791. Like the rest of the Bill of Rights, the amendment originally restrained only the federal government.

A Long Judicial Silence

For most of the next two centuries the Supreme Court said little about the amendment. In United States v. Cruikshank (1876) and Presser v. Illinois (1886), it held that the amendment limited Congress, not the states. In United States v. Miller (1939), it upheld the National Firearms Act as applied to a short-barreled shotgun, reasoning that there was no evidence the weapon had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Many lower courts read Miller to mean that the right belonged to the people only in connection with militia service. From the 1980s onward, a growing body of scholarship, including a widely cited 1989 article by the liberal law professor Sanford Levinson, argued that the amendment protected an individual right.

Heller and McDonald

In District of Columbia v. Heller (2008), the Court held 5–4, in an opinion by Justice Antonin Scalia, that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and it struck down the District’s ban on handguns in the home. The opening clause, the Court said, announces a purpose but does not limit the right that follows. The Court also stressed that, “like most rights,” the right is “not unlimited,” and it described longstanding prohibitions on possession by felons and the mentally ill, and laws forbidding firearms in sensitive places such as schools and government buildings, as presumptively lawful. In dissent, Justice John Paul Stevens tied the right to militia service, and Justice Stephen Breyer would have weighed the law’s benefits against its burdens.

Two years later, in McDonald v. City of Chicago (2010), the Court held 5–4 that the right applies against state and local governments through the Fourteenth Amendment.

Bruen, Rahimi and After

After Heller, most lower courts upheld gun laws by weighing the government’s interests against the burden on the right. In New York State Rifle & Pistol Association v. Bruen (2022), the Court rejected that approach. Writing for a 6–3 majority, Justice Clarence Thomas held that when the amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects it, and the government must show that its regulation is consistent with the Nation’s historical tradition of firearm regulation. The Court struck down New York’s requirement that applicants for a license to carry a handgun show “proper cause.”

In United States v. Rahimi (2024) the Court refined the test. By an 8–1 vote, it upheld the federal law disarming people subject to domestic-violence restraining orders, explaining that the government must identify a historical analogue, not a “historical twin.” In June 2026 the Court applied the framework twice more. In United States v. Hemani, all nine justices agreed that the government’s prosecution of a man for keeping a gun in his home while an unlawful user of a controlled substance was inconsistent with the Second Amendment. In Wolford v. Lopez, a 6–3 majority struck down a Hawaii law that barred licensed carriers from bringing handguns onto private property open to the public without the owner’s express permission.

Questions That Remain

Lower courts continue to apply the history-and-tradition test to laws on which firearms and magazines may be owned, minimum ages, sensitive places and the disarming of people with criminal records, often reaching different results. Supporters of the Court’s approach argue that it gives the Second Amendment the same respect as other enumerated rights and anchors judges in the Constitution’s original meaning. Critics, including justices in dissent, argue that the historical inquiry is difficult for judges and legislatures to apply and leaves modern public-safety measures uncertain. The text has not changed since 1791; the law built around it is still being written.