“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.”
—The Second Amendment to the US Constitution
Does the Second Amendment prevent effective gun regulations? What is the “right to bear arms”? Second Amendment litigation has become a critical battleground since the US Supreme Court held, in District of Columbia v. Heller, that the Amendment guarantees an individual right to possess a firearm in the home for self-defense. This decision created a radical shift in the meaning of the Second Amendment, but it doesn’t prevent smart gun regulations. In fact, since Heller, courts nationwide have found a wide variety of firearms laws constitutional because they can help prevent gun deaths, injuries, and crimes in communities across the country.
Giffords Law Center not only tracks the extensive Second Amendment litigation currently happening nationwide, but also analyzes the trends, to bring you the latest developments in the courts.
The New Landscape of Second Amendment Litigation
In 2008, the US Supreme Court singlehandedly inserted the judicial system into the ongoing national debate over gun laws in America. In a 5-4 decision in District of Columbia v. Heller, the Court invalidated the District of Columbia’s handgun ban and firearm storage law, stating for the first time that the Second Amendment protects a responsible, law-abiding citizen’s right to possess an operable handgun in the home for self-defense.
Heller was unquestionably a radical decision, overturning the Court’s previous ruling that the Second Amendment was tied to state militia service. For almost seventy years, lower federal and state courts nationwide had relied on that pronouncement to reject hundreds of Second Amendment challenges.
The Heller decision immediately drew strong criticism from a wide array of legal scholars, historians, advocates and legislators, including a particularly scathing rebuke from respected conservative judge Richard Posner, who noted that, “The only certain effect of the Heller decision will be to increase litigation over gun ownership.”
In fact, new litigation started almost immediately. The day that Heller was announced, plaintiffs filed a lawsuit challenging the City of Chicago’s handgun ban, with a second suit filed the next day. Other suits emerged soon after, escalating once the Supreme Court confirmed that the Second Amendment also applied to state and local laws in 2010’s McDonald v. City of Chicago decision. After that case, the number of lawsuits challenging gun laws nationwide skyrocketed.
Thankfully, despite the explosion of litigation, courts across the country have rejected the overwhelming majority of Second Amendment challenges initiated since Heller. Gun rights advocates and criminal defendants across the country have sought to expand the Second Amendment to invalidate almost every gun law on the books today. In siding with us and the majority of Americans who support sensible gun laws, courts are finding that smart laws aren’t just constitutional—they’re also critical to keeping our communities safe from gun violence.