Second Amendment To The United States Constitution - Supreme Court Cases

Supreme Court Cases

See also: Firearm case law in the United States

For almost a century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times. The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. The notable exception to this general rule was Houston v. Moore, 18 U.S. 1 (1820), where the Supreme Court mentioned the Second Amendment in an aside, but Justice Story "misidentified" it as the "5th Amendment."

State and federal courts historically have used two models to interpret the Second Amendment: the now generally accepted individual rights model, and the "collective rights" model, which holds that the right is dependent on militia membership. While having influenced a number of past court cases, the "collective rights" model has been discarded by the U.S. Supreme Court, in favor of the individual rights model.

The primary U.S. Supreme Court Second Amendment cases include Robertson v. Baldwin, (1897); United States v. Miller, (1939); District of Columbia v. Heller, (2008); and McDonald v. Chicago (2010).

In Heller and McDonald the U.S. Supreme Court supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which U.S. militias have historically been armed.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Of the collective rights model that holds that the right to arms is based on militia membership, the U.S. Supreme Court, in Heller, had this to say:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.