Does the Second Amendment protect an individual right to own guns?

That's the million dollar question. Many say yes, and in 2008, in District of Columbia v. Heller, the Supreme Court ruled that the amendment does protect an individual right to own and use guns for lawful purposes including self-defense. But prior to this, the Court had consistently held that the Second Amendment did not protect an individual right. Instead the Court had ruled that the amendment protected either the states' rights to maintain militias, or the individual's right to bear arms in the service of the military.

Which court cases reflect the Court's earlier approach to the Second Amendment?

United States v. Cruikshank and United States v. Miller.

What explains the Court's inconsistency?

The text of the Second Amendment is not completely clear. It does not simply state that the people have a right to keep and bear arms; instead it prefaces this statement with a clause about the militia being necessary to the security of a free state. Read it for yourself: "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." Many have interpreted this to mean that the right to bear arms is contingent on a person serving in the militia.

Okay, but didn't colonial militias include everybody, or at least all men?

Yes. But when Congress drafted the Second Amendment, it discussed and then decided not to include a clause within the amendment specifying that the militia was "composed of the body of the people." Since Article I, Section 8 of the Constitution gave Congress authority over "organizing, arming, and disciplining, the militia," the decision to leave the composition of the militia vague in the Second Amendment suggests that the framers were leaving it up to Congress to decide who the militia included.

Okay, but how could the Court ignore the rather clear statement that this right belongs to "the people?"

For the most part, the Court held that "the people" should be understood collectively and as represented by the state. But many found this argument troubling because this is not the interpretation attached to "the people" in other amendments. For example, the First Amendment protects the "right of the people peaceably to assemble" and the Fourth guarantees "the right of the people to be secure in their persons." The Court never suggested that these were guarantees only to the people understood collectively.

So now that the Court has ruled in District of Columbia v. Heller is the issue finally settled?

Not really. Washington, D.C. is a special district under the direct authority of Congress; it is not a state or in a state. And the Court has always conferred far greater authority to the states than to the federal government to regulate guns. The Heller ruling did not say anything directly about the connection between this ruling and state and local gun laws. Moreover, the Heller ruling stated that certain forms of federal regulation were permissible. No doubt, there will be future litigation surrounding both state and federal regulations.

What sorts of federal gun regulations have been passed by Congress?

Congress began passing gun regulations in the 1930s. The first federal gun law, passed in 1934, tried to tax out of existence the sorts of guns commonly used by mobsters (machine guns and sawed-off shotguns). A second law passed four years later demanded that interstate gun dealers obtain dealer licenses and also record the names and addresses of those purchasing guns. The law also prohibited the sale of guns to persons convicted of violent felonies. In 1968 Congress passed a law prohibiting interstate commerce in guns and ammunition, forbidding the sale of guns to felons, minors, drug addicts, and the mentally ill, and making it illegal to import surplus military weapons unless classified as sporting guns or souvenirs. More recently Congress has banned armor-piercing bullets, guns made from materials that make them undetectable by airport security devices, and several types of assault weapons.

What sorts of gun regulations have been passed by the states?

The states regulate guns more heavily than the federal government. In many states people must obtain permits to purchase and carry guns, certain types of guns must be registered, and conditions can be attached to the transfer or sale of guns. For a more complete list of each state's gun regulations go here.

Does the general public support these sorts of gun regulations?

Public opinion polls taken over the last thirty years suggest that most Americans do support certain types of gun regulations, but not a total ban on guns. Sixty to seventy percent support a ban on assault weapons, and 60-80 percent support laws requiring handgun registration. There is also considerable minority of voters that professes support for an outright ban on handguns. During the 1990s, polls indicated that between 39 and 52 percent favored such a ban; in recent years that number has dropped into the low 30s.¹

Why has the Court given the states more latitude in regulating guns?

The Court has consistently held that the Second Amendment, like the other amendments, was intended to serve as a restriction against the federal government, not the states. And whereas in a series of cases the Court later concluded that through the doctrine of incorporation that the states as well as the federal government were barred from encroaching on certain guarantees in the Bill of Rights, the Court has never incorporated the Second Amendment.

What exactly is the doctrine of incorporation?

The legal doctrine of incorporation states that the restrictions and demands placed on the federal government by the Bill of Rights apply selectively to the states as well. Even though initially these restrictions and demands were addressed only to the federal government, many have been extended to the states by the due process clause of the Fourteenth Amendment. The Fourteenth Amendment declares that the states may not "deprive any person of life, liberty, or property, without due process of law." The Court has held that many of the protections extended under the Bill of Rights are central to our understanding of liberty and therefore "fundamental" to the states' guarantee of due process of law.

Do other states have arms clauses in their constitutions? Are they phrased similarly?

Most states have some sort of arms clause in their constitutions—but they are not all phrased the same way. In fact, the variety among them sums up much of the debate surrounding the meaning of the Second Amendment. For example, in the early years of the American republic, Massachusetts guaranteed to its citizens the right to "keep and bear arms," in order to provide for "the common defense." North Carolina stated that "the people have a right to bear arms, for the defence of the State." But Pennsylvania and Vermont guaranteed to their citizens a right to bear arms for "the defense of themselves and the state." These were all written before the Second Amendment. In the years following the ratification of the Second Amendment, new states wrote arms clauses into their constitutions. But these also were split between those suggesting that the right was linked to the common defense and those recognizing an individual right to bear arms for self-defense. For example, in 1792 Kentucky stated that "the right of the citizens to bear arms in defense of themselves and the State shall not be questioned." But in 1796 Tennessee suggested a more limited right in stating that the "freemen of this State have a right to keep and bear arms for their common defence.²

Whatever happened to state militias?

In the early twentieth century they were converted into the National Guard. Laws passed in 1903 and 1916 increased both federal support to and federal control over these militias.

How many guns are there in America? How many Americans own guns?

Estimates vary, but most suggest that there are now between 250 and 270 million guns in America, and that about one in three households owns a gun.³

How do these rates compare with the rates for other countries?

The United States has the highest gun ownership rate in the world at roughly 90 guns per 100 people. Yemen has the second highest rate at 61 guns per 100 people. Finland has 56 guns per 100 people, France has 32, Canada has 31, Germany has 30, Mexico has 15, and England has 6 guns per 100 people.⁴

Is there more gun violence in America as a result?

There is certainly more gun violence in America than elsewhere in the world. Gun homicides per 100,000 people are five times higher in America than in Italy, ten times higher in America than in Canada, and 26 times higher in America than in England.⁵ A Center for Disease Control study released in the 1990s reported that more than 5200 American young people (under age 20) were killed by guns during one year; meanwhile, guns killed only nineteen young people in Great Britain, 57 in Germany, 109 in France, and 153 in Canada.⁶

But people debate whether the high incidence of gun violence in the United States can be fairly linked to the number of guns in the country. While some argue that more guns means more gun violence, others argue that a more complex set of factors is responsible for America's high rates of gun violence, and that efforts to control gun ownership more tightly might make individuals less safe by leaving guns only in the hands of criminals.