AP U.S. Government and Politics 3.5: Second Amendment: Right to Bear Arms

The Second Amendment refers to a well-regulated militia and the right of the people to keep and bear arms. Its constitutional interpretation concerns the relationship between those clauses and the right protected. Read the source before deciding what a writer argues: National Archives, Bill of Rights transcript. The existence of a militia reference does not by itself describe every conclusion a court will draw about individual possession.

The Supreme Court’s decisions on this amendment rest on its interpretation of the constitutional right. In an analysis of a judicial source, separate the claim, the evidence used to support it, and the reasoning connecting the evidence to the result. Together these form the source’s argument. The text, history, and earlier decisions can play different roles in that argument.

Original example: one reader emphasizes the militia language; another emphasizes the phrase referring to the people. Describing those perspectives is different from declaring that either reader’s preferred policy is already the Court’s holding. To explain a decision faithfully, identify the actual majority’s conclusion and preserve its stated limits.

Background case: District of Columbia v. Heller (2008) concerned federal District of Columbia restrictions, including a ban on handgun possession in the home and a requirement that lawful firearms be kept inoperable. Justice Scalia’s majority opinion interpreted the Second Amendment to protect an individual right to possess a firearm unconnected with militia service and to use it for traditionally lawful purposes, including self-defense in the home.

The Court held the handgun ban and the inoperability requirement unconstitutional as applied to lawful home self-defense. The majority reasoned from constitutional language and history, distinguishing a prefatory militia clause from the operative protection of the people’s right.

The opinion also said the right is not unlimited. It identified longstanding restrictions and conditions that its opinion did not cast doubt on. Thus, neither a requirement of actual militia service for all protection nor a claim of immunity from all firearm regulation describes the majority’s interpretation. For this lesson, Heller supplies the interpretive background for the required McDonald case. Source: District of Columbia v. Heller, 554 U.S. 570, 628-636 (2008).

In McDonald v. Chicago (2010), residents challenged Chicago and Oak Park handgun restrictions after Heller had recognized the right against the federal District of Columbia. The issue was whether the Second Amendment right recognized in Heller also applied to state and local governments through the Fourteenth Amendment.

The Court held that it did. Justice Alito’s controlling majority portions described the self-defense right as fundamental to the American scheme of ordered liberty and deeply rooted in the nation’s history and tradition. The judgment below was reversed and the case remanded. The decision extended the constitutional protection to state and local action; it did not decide that all firearm regulations are unconstitutional.

Be precise about agreement among justices. Four justices used the Fourteenth Amendment’s Due Process Clause as the route; Justice Thomas agreed with the result through the Privileges or Immunities Clause. The course’s incorporation framework uses due process, but describing the opinion should not claim five justices joined that route. Interpret the source’s argument about a fundamental right, not an imagined universal exemption. Source: McDonald v. Chicago, 561 U.S. 742 (2010).