The Evolution of the Second Amendment: Licenses and Handguns

A rundown of the major Supreme Court cases involving the Second Amendment in the past decade. From D.C. v. Heller in 2008 to New York State Rifle and Pistol Association Inc. v. Bruen in 2021, this article explores the implications of the court’s decisions surrounding gun rights.

On November 3rd, 2021, the Supreme Court heard the most important Second Amendment case since D.C. v. Heller in 2008. 

Perhaps the most contentious amendment to the Constitution, the Second Amendment states that “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.” Due to the advancement of increasingly lethal gun technology, the courts have had to decipher the intent of this amendment.The presence of guns in American culture is intrinsically tied to the Second Amendment and is unique in comparison to most other countries. Only two other countries guarantee the right to bear arms to their citizens: Mexico and Guatemala.

The Second Amendment is generally broken down into two clauses, the prefatory clause and the operative clause. The prefatory clause refers to “A well regulated Militia, being necessary to the security of a free State” whereas the operative clause refers to “the right of the people to keep and bear Arms, shall not be infringed.” These two clauses are crucial to understanding the divide in constitutional interpretation within the Second Amendment. The legal historians tend to fall into two camps of interpretation of this amendment: those who believe in the right of the state and those who believe in the right of the individual. The legal scholars who assert that the emphasis is on the prefatory clause believe that the Second Amendment, in its original intention, guarantees the right for a state to have an armed militia. On the other side, they contend that the operative clause guarantees the right to bear arms to individual citizens. The judicial system has since established that the Second Amendment more heavily relies on the operative clause and that individuals do have the right to possess firearms.

In 2008, the Supreme Court received a case from the Court of Appeals, challenging the decision made in the District of Columbia Circuit Court. The Circuit Court ruled that D.C. had violated Dick Anthony Heller’s Second Amendment rights. Dick Anthony Heller was a special police officer working in D.C. At the time, citizens of the District of Columbia could not legally possess a handgun; the police chief could issue one-year licenses for handguns and they had to be kept unloaded and disassembled or with a trigger lock. Dick Anthony Heller applied for one of these licenses and was denied; he filed suit saying that the refusal to grant him a license and the need for his handgun to be disassembled violated his Second Amendment right. 

In a 5-4 decision, the Supreme Court ruled in this landmark case that the District of Columbia violated Dick Anthony Heller’s Second Amendment right. In his majority opinion, Antonin Scalia vigorously supported access to firearms, and specifically handguns. He followed an originalist interpretation of the Constitution and concluded that the operative clause showed that an individual has the right to bear arms. By examining the original definition of the word “militia,” Scalia showed that individuals had the right to remain armed and that any legislation that threatened access to a weapon was a constitutional violation. He leaned on historians’ analysis of the term a “well regulated militia,” citing that the amendment actually refers to the ability of men available for the military to bear arms. 

D.C. v. Heller paved the way for the effective legalization of registered handguns, striking down laws that restricted citizens' abilities to obtain licenses for their handguns. The Fourteenth Amendment guarantees that states cannot make laws that do not respect the rights of citizens without providing due process. At the time, lawyers were discussing whether the Due Process clause applied to the Second Amendment. However, in Heller, the court could not rule on whether the Fourteenth Amendment allowed the Second Amendment to be respected by the States, as the District of Columbia is a federal territory. 

In 2010, Otis McDonald filed suit against the City of Chicago, stating that their gun bans violated the precedent set in D.C. v. Heller. McDonald v. Chicago tackled the questions left unanswered by the Heller decision, specifically whether the Due Process clause of the Fourteenth Amendment applies to the Second Amendment. In the court’s ruling, they found that the Due Process clause does incorporate the Second Amendment and that the states therefore have to respect citizens’ right to bear arms. This ruling furthered the previous ruling in Heller, advancing the legal theory that firearms are a guaranteed liberty for the American people and that they should be available for self-defense purposes. 

These two cases solidified the operative clause interpretation of the Second Amendment and provided ample precedent for the court to continue to protect the right to own a firearm for American citizens. 

In New York State Rifle and Pistol Association Inc. v. Bruen, a gun rights group filed suit against the New York Police Superintendent for the New York laws surrounding the licensing process for firearms. The New York laws require the licensee to prove that they have “proper cause” to license their firearm for concealed carry under the Sullivan Act. The petitioner claimed that this law and the necessity for a citizen to provide “proper cause” are a violation of their client’s Second Amendment rights. Paul D. Clement, the lead lawyer for the petitioner in this case, focused his arguments on showing the court that his client should not have to prove to the government why they should be able to exercise their constitutional right. Clement also relied heavily on the Heller case, constantly reminding the court that they had laid down prior precedent on gun licensing laws. 

The implications of this case are crucial for the evolution of self-defense. If the petitioners win, which seems likely given the reactions of the judges and the current conservative supermajority, the elimination of the “proper cause” legislation could lead to concealed carry being allowed throughout public spaces. However, the justices hinted that they may lay down a more narrow ruling than this interpretation. Chief Justice Roberts questioned Clement about how expansive he wanted the ruling to be, showing his reservations about issuing a sweeping ruling. The Supreme Court could opt for a decision that only addresses the licensing aspect of this case, delaying larger questions about whether concealed carry is permissible to a later case. 

From D.C. v. Heller to New York State Rifle and Pistol Association Inc. v. Bruen, the evolution of the interpretation of the Second Amendment and whether states can restrict access to firearms has dominated the national dialogue around gun rights. The operative interpretation cemented in Heller has shifted the country in a perhaps unalterable direction where an individual’s right to have access to a firearm is a central right. 

The New York case has the potential to be the largest ruling regarding gun rights in over a decade; the court can once again decide the direction that the country’s gun control policy turns. 

Visit the Supreme Court website to get updates about the status of New York State Rifle and Pistol Association Inc. v. Bruen.

Andreas Rivera Young is a Sophomore at Brown University, concentrating in Political Science and History. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at andreas_rivera_young@brown.edu.