It is sometimes hard for me to understand just how far we’ve come in Second Amendment jurisprudence. I remember the time when there were legal battles and arguments about who did the right extend to.
On one side, there was a group of people saying that the right belonged to the militia. Since the right belonged to the militia, the only people or group of people that had standing to challenge on Second Amendment grounds were the militia. Since the only legal militia was the National Guard, under the control of the state, the only people who had standing to challenge a state law on Second Amendment grounds were the state.
In 2008 the Supreme Court smashed that argument to pieces. They applied their standard methods and stated it plainly: Dick Heller had the constitutional right to have a handgun in his home for self-defense in ready condition. Right?
Nope, the holding was broader than that.
-
- The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
- The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
- The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
- The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
- The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
- Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
- None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
- Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
- The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
- The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
478 F. 3d 370, affirmed.
This wasn’t an as-applied holding; this found that the D.C. law was unconstitutional.
But it was much more important that striking down several laws forbidding The People from having functional firearms in their homes changed how the lower courts (were supposed to) evaluate Second Amendment challenges.
This upset the gun grabbers, so they fought back. Many of the inferior courts said, “D.C. is a special case because it is a federally controlled area, not a state. The Second Amendment does not apply to the states.” Their stated reasoning for this was that the Supreme Court had never explicitly told them that the Second Amendment was a part of the Constitution and applied like everything else in the Constitution.
The Seventh Circuit Court of Appeals actually said that since the Supreme Court had never said the Second Amendment was part of the Constitution, the state of Illinois did not have to respect it.
This led to McDonald, where the Supreme Court, once again, told the inferior courts, “Stop being jackasses; of course the Second Amendment applies to the states.”
These two cases advanced Second Amendment jurisprudence immensely. They opened the floodgates to a slew of Second Amendment challenges.
And there were actual advances in The People regaining some of their protected rights.
That is, until the inferior courts found a new hook. Interest balancing.
The inferior courts said, “We are too stupid to understand how to evaluate Second Amendment challenges as Heller told us. So we are going to look to First Amendment jurisprudence for guidence.”
While this might sound good on its face, it wasn’t when twisted by the states and inferior courts. First Amendment jurisprudence is littered with free speech exceptions. While the core protected rights are strongly protected, there is a lot of case law that gives rise to exceptions.
Consider political speech. Everybody knows you can get up on your soapbox and start yapping about anything political. But the courts have actually put limits on this. For example, they can restrict the time and place of such speech. You can’t set up your soapbox in the middle of an intersection. You can’t use a megaphone at midnight to make your speech.
The courts have gone further in limiting some types of speech. There are restrictions on certain topics at certain locations. You can’t show pornographic movies on the sidewalk outside a school. Even if that would be an acceptable location to give a political speech.
The gist was that there was a “core” protected right that had the strongest protections, and then there were other parts of the protected right that were not so strongly protected.
In First Amendment jurisprudence, the courts balanced how much the modern day regulation infringed on the “core” protected right and balanced it against the “good” of the modern day regulation.
In the inferior courts, they went to town with this exception process. When it came to Second Amendment challenges, the courts had three steps: 1) Is the plain text of the Second Amendment implicated? 2) How much does the modern regulation impede the core protected right? 3) What are the benefits of the modern infringement?
Being evil but not stupid, these inferior courts then bypassed the first question: Is the plain text implicated? If they were to answer this question in the negative, that would be a reason for appeals, and their decisions could be overturned on just that. If they said the plain text was implicated, then they have established a record that they could be held to later.
So they did the sidestep; they said, “Without making a determination, we accept that the modern day regulation does implicate the plain text of the Second Amendment.” They never said a single modern day infringement actually implicated the Second Amendment.
Having made that assumption, they then evaluated the infringement against the core protect right of armed self-defense within the home. This is similar to evaluating a rape by how much lube was being used. Yes, you have a right not to be raped, but they used a lot of lube so it didn’t hurt all that much.
Having decided how much it was hurting The People, they then looked at the government’s stated intentions, not the results, not what was actually happening, but on what the state said their intentions were. If those intentions were “good enough” when balanced against the pain The People were feeling, the courts ruled in favor of the state.
The reality was that the courts were working backwards. They wanted “the rape” to continue, so they looked at the government’s stated intention in passing the regulation, decided what level of scrutiny would survive that intention, and then justified that.
We were right back where we started from. The inferior courts in gun grabbing states were consistently (always, the Ninth Circuit Court en banc has never ruled against the state in a Second Amendment Challenge) finding for the state on interest balancing reasons.
In 2022, the Supreme Court issued their opinion in Bruen. Bruin took issue with the two-step shuffle. Justice Thomas wrote that the two step shuffle was one step too far and restated Heller’s core jurisprudence: When the plain text of the Second Amendment is implicated, the burden shifts to the government to prove that the modern regulation is a match for this Nation’s history and tradition of firearms regulation.
The holding in Bruen was that NYC’s may issue game was inconsistent with the Constitution. That part of the “core” protected rights of the Second Amendment was the ability to carry, to bear arms, outside the home.
The gun grabbers ran back to their corners and immediately put into place new laws to stop people from legally carrying. In some ways, the people of New York were worse off after Bruen than before. Before Bruen, if you were wealthy, connected, or lucky, you could get a permit to carry. Once you had that permit, you could carry in most places. After the Bruen tantrum, The People could get permits, but they couldn’t carry anyplace because every place they wanted to carry was off-limits, or the ability to get to a place where they could legally carry put them at risk of going through a prohibited location.
Consider a subject of New York state who has a permit to carry. They want to drive through NYC to get to some place. If they were to drive through Times Square, they would be in violation of one of the many locations where carry is prohibited.
As the governor of New York state said when asked where people could legally carry, “I don’t know, maybe some streets?”
The inferior courts were in a quandary; they had clear marching orders from their bosses, but that would require them to overturn most gun control laws. They had to do something.
They immediately pivoted to “We are to stupid to do our jobs.” Even though they have been through years of schooling on how to interpret and understand the laws of this Nation, even though they have studied case law for nearly a decade before being allowed to practice law, and even though most of them have some experience before being appointed to the bench, history was beyond them.
The legal profession is nearly 100% about interpreting the legal history of this Nation. How can a judge make a ruling on anything without looking to history? It could be the history of last week or of 250 years ago. If a judge is looking at a challenge to 18 U.S.C. § 922(g), they are looking at history from nearly 60 years ago when the Gun Control Act of 1968 was passed.
If they are looking at machine gun regulations, they are looking at laws from 1986. Before Heller and Bruen, the courts routinely looked at the Sullivan Act from 1911.
All of that is “Legal History” and that is all that Bruen demanded they do.
When that wasn’t making headway, they turned to sensitive places.
And still they were losing ground.
Under Joe Biden, the DoJ brought Rahimi to The Court. This was an attempt by the Biden DoJ to gut Bruen. The thinking was that Mr. Rahimi was a bad man doing bad things who deserved to be disarmed and incarcerated. We still won and Second Amendment Jurisprudence advanced again.
The important parts of Rahimi, for us, was that the Supreme Court clearly stated that any loss of Second Amendment protected rights could only be temporary. There is no such thing as a lifetime loss of gun rights. The second big thing was that to remove someone’s Second Amendment protected rights, the person must be adjudicated a danger to themselves or others.
This is actually a death knell for Red Flag laws. It hasn’t happened yet, but until you are adjudicated in a court of law with proper representation, you cannot lose your Second Amendment protected rights.
Because of Rahimi, there are hundreds of challenges to 18 U.S.C. §922(g)1, felon in possession. Some of these have made it to the Supreme Court and are waiting on final disposition; some have been rejected. But for every one that made it to that stage, I’m sure there are dozens that were resolved in an inferior court.
Which brings us to June, 2026. The Supreme Court has issued two new Second Amendment opinions.
The first was Hemani, another case with bad facts. Mr. Hemani is a bad man, in my opinion, but not in the opinion of the courts. He hasn’t been adjudicated of any violence. In fact, his charges were simply one count of violating 18 U.S.C. §922(g)3.
18 U.S.C. § 922(g) 3
It shall be unlawful for any person —
- who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Nothing about his terrorist-loving parents nor the fact that he is a dual citizen and also loves him some terrorists.
This was an as-applied opinion. It will be used to help other people who are accused under §922(g)3, but it doesn’t strike down §922(g)3 as is. We’ll have to wait to see how the government responds. The most likely change would be the removal of “unlawful user.”
As Hemani pointed out, tying the loss of Constitutionally protected rights to definitions under complete and arbitrary definitions by a federal agency is inconsistent with the Constitution.
But that is not the big part of Hemani. The important part was that it reaffirmed Heller, Bruen, and Rahimi as well as defining how to do regulation comparisons.
This is a big step forward. The inferior courts have a bad habit of saying “close enough” when it isn’t. It makes sense why this case was taken. It allowed The Court to issue an opinion focused on deriving analogous regulations from this Nation’s history and tradition of firearms regulations.
When the court issued Wolford v. Lopez, it was a win for people living under vampire rules. This is relief for millions of people. It didn’t sound like it was an important win for Second Amendment jurisprudence.
I was wrong. It is a huge win for us.
Whereas Hemani took on the “how” and the “why” of matching, Wolford v. Lopez takes on the inferior courts, pushing the historical analysis into the linguistic analysis for a Second Amendment challenge.
We know how to do a plain text analysis. The inferior courts have said they are too stupid to do so.
This is the takeaway. This is the step forward in Second Amendment jurisprudence. Stop pushing the historical analysis into the linguistic analysis. Is it an arm or does it relate to an arm? Are the people involved? Do the people wish to keep or bear the arm?
If the answer to these three questions is “yes” then the plain text of the Second Amendment is implicated.
There is almost nothing that removes a person from being a part of “the people”. As far as I can tell, the set of people that can be excluded are people who are in the U.S. illegally and those that are not within the U.S.
Keep and bear encompasses not only the possession and carrying of arms but also acquiring arms and all the things that make an arm useful or functional. While smokeless powder might not be a firearm, it is required for a modern firearm to function efficiently. Therefore, we have a protected right to acquire smokeless powder or ammunition in general.
We only have to look to Minneapolis Star & Tribune Co. V. Minnesota to understand that even minor financial burdens infringe.
This leaves the question of “Is it an arm?”
If it is a firearm, then it is an arm. That means all platform bans are covered under the plain text of the Second Amendment.
But the term “arms” also includes those things that facilitate armed self-defense. That means everything from the firing pin and sling to ammo belts, clips and magazines.
This opinion is going to gut many of the current cases when the challengers start using Wolford v. Lopez to get the burden back on the state and to stop this game playing of the state claming “actually, that’s not an arm.”
