Heller, McDonald and Bruen Explain How Judges Now Read the Second Amendment

The Second Amendment has twenty-seven words in it. I counted, and then I counted again, because it is hard to believe that so few words have generated so much paper. It took 217 years, from ratification in 1791 to the Supreme Court's decision in District of Columbia v. Heller in 2008, for the Court to say definitively whether those words protect an individual's right or something else. That is 2008 minus 1791, and the answer is 217. Think of all the amendments that never got a day in court for two centuries. This one was waiting for its turn.

I want to do something a little unusual in this post. I'm going to leave the gun policy debate at the door. Whether your state should have a permit system, how long a waiting period ought to be, what a background check should cover: those are real arguments for another day. Today I want to explain how judges decide these cases, because the method has changed three times in fifteen years, and if you do not understand the method you will misread every headline. Here are the cases in order: Heller, McDonald, Bruen and Rahimi.

The words

The text reads: "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."

There are two parts. The opening phrase, about the militia, is called the prefatory clause. The rest, about the right of the people, is the operative clause. The argument for most of the twentieth century was about how they fit together. If the first part limits the second, then the right is about militias. If the first part only states one reason for the second, then the right belongs to individuals. We go through the clauses one at a time in What the Second Amendment says, read one clause at a time, and the historical background is in Why the Founders wrote the Second Amendment after Lexington and Concord.

Before 2008: two readings and one old case

The Supreme Court had spoken to the Second Amendment only a few times before 2008. The most important case was United States v. Miller (1939), which involved two men charged with transporting a sawed-off shotgun across state lines in violation of the National Firearms Act. The Court said there was no evidence that a sawed-off shotgun had a reasonable relationship to the preservation or efficiency of a well-regulated militia, and so the Second Amendment did not protect it. That was a narrow holding about a particular weapon. But many lower courts read it as meaning the amendment protected a collective or militia-based right and not an individual one.

So for decades two readings competed. Under the collective-right reading, the amendment protects the states' ability to maintain militias, and individuals have a right only in connection with service. Under the individual-right reading, the amendment protects the right of ordinary people to own and carry arms, with the militia clause stating a purpose. For most of the century the first view was common in the courts, and the second was common among citizens and was gaining support among scholars. In 1989, a respected liberal law professor named Sanford Levinson published an article in the Yale Law Journal called "The Embarrassing Second Amendment," which argued that scholars across the spectrum should take the individual-right reading seriously. It was a turning point in the scholarly debate.

Heller (2008): the text wins

Washington, D.C., had one of the strictest gun laws in the country. It banned the possession of handguns in the home, and it required that any lawfully owned rifle or shotgun in the home be kept unloaded and disassembled or bound by a trigger lock. Dick Heller, a special police officer who carried a handgun on the job, applied for a license to keep one at home. The District refused. He sued.

On June 26, 2008, the Supreme Court held, five to four, that the Second Amendment protects an individual's right to possess firearms for traditional lawful purposes such as self-defense in the home, and that D.C.'s handgun ban and its disassembly requirement violated that right. Justice Scalia wrote the opinion.

The method is the story. Scalia began with the words, as they were understood at the time of the founding. "The people" appears in the First, Second and Fourth Amendments and refers to individuals, not to a collective. "Keep and bear arms" was an ordinary phrase for having and carrying weapons. The prefatory clause explains why the right matters but does not shrink it. And the opinion treated the right as one that pre-existed the Constitution, a right the amendment protected, not one it created. He then tested the reading against founding-era history, state constitutions and the way later generations understood the right.

Two justices wrote powerful dissents. Justice Stevens argued that the amendment was tied to militia service. Justice Breyer argued that even if there was an individual right, the District's law was a reasonable response to a serious problem, and that courts should weigh the government's interest against the burden. That argument will matter later.

What Heller said it was leaving alone

Here is something that gets forgotten in the heat. The same opinion that struck down D.C.'s handgun ban said the right is not unlimited. Scalia wrote that nothing in the opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, on laws forbidding firearms in sensitive places such as schools and government buildings, or on laws imposing conditions and qualifications on the commercial sale of arms. A footnote called these "presumptively lawful regulatory measures." The opinion also said that the historical tradition supports prohibiting "dangerous and unusual weapons," and that the protected arms are those in common use for lawful purposes.

That list is a feature, not a bug. It tells you the Court meant to protect a right while preserving room for regulation. But it was a list, not a test. Nobody knew how to decide the next hundred cases, and they showed up soon.

McDonald (2010): the right reaches the states

Heller involved the District of Columbia, a federal enclave, so it did not decide whether the Second Amendment applied to the states. In McDonald v. City of Chicago (2010), the Court answered that question. Otis McDonald, a retired maintenance engineer in his seventies, wanted a handgun for self-defense in a neighborhood he considered dangerous, and Chicago had effectively banned handguns.

The Court held, again five to four, that the Fourteenth Amendment makes the Second Amendment applicable to the states. Justice Alito's opinion reasoned that the right to keep and bear arms for self-defense is fundamental to the American scheme of ordered liberty and deeply rooted in the nation's history. Justice Thomas agreed in the result but would have used a different clause, the Privileges or Immunities Clause, which he argued was the proper home of the right. We explain the incorporation story in How McDonald v. Chicago carried the Second Amendment to every state.

The test the lower courts built

After Heller, federal courts of appeals had to decide hundreds of cases, and they needed a framework. Most settled on a two-step test. Step one: does the law burden conduct that is within the scope of the Second Amendment as historically understood? Step two: if so, weigh the law under some level of scrutiny, usually "intermediate scrutiny," asking whether the law serves an important government interest and is reasonably tailored to it.

Notice what step two does. It looks very much like the balancing Justice Breyer urged in his Heller dissent. Judges weighed the government's goals against the burden on the right. And the government usually won. Critics said the courts had accepted Heller in word and ignored it in practice. The Court eventually agreed.

Bruen (2022): history, not balancing

In New York State Rifle & Pistol Association v. Bruen, two New Yorkers wanted licenses to carry handguns outside their homes. New York law required an applicant to show "proper cause," a special need for protection beyond the general one, which the licensing officers interpreted narrowly. The applicants were denied.

On June 23, 2022, the Court held, six to three, in an opinion by Justice Thomas, that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home, and that New York's proper-cause requirement violated it. More important than the result was the method. The Court threw out the two-step test. In its place came this rule: when the text of the Second Amendment covers an individual's conduct, the Constitution presumptively protects it, and the government must justify its regulation by showing that it is consistent with the nation's historical tradition of firearm regulation.

That is a different question. The judge no longer asks whether the law is a good idea or whether the benefits outweigh the burdens. The judge asks whether there is a historical tradition of regulation that resembles this one. The Court said the government need not find a "historical twin," only a well-established and representative historical analogue. The opinion also recognized that places such as schools and courthouses are sensitive places where arms may be prohibited, and Justice Kavanaugh's concurrence, joined by the Chief Justice, stressed that licensing regimes that apply objective criteria remained available. We go through the follow-up in Bruen and Rahimi explained, the history test every gun law now faces.

Rahimi (2024): the test is not a blank check

The next big question was whether the history test forbids every restriction that lacks an exact historical match. In United States v. Rahimi (2024), a man named Zackey Rahimi was subject to a domestic violence restraining order, entered after a court found that he posed a credible threat to the physical safety of his partner. A federal law, 18 U.S.C. 922(g)(8), bars people under such orders from possessing firearms. Rahimi challenged the law. A federal appeals court agreed with him, reading Bruen strictly.

The Supreme Court reversed by a vote of eight to one, with Chief Justice Roberts writing the opinion and Justice Thomas in dissent. The Court said that when the government disarms a person who has been found to pose a clear threat of violence to another, the law is consistent with the principles underlying the nation's tradition. It looked at historical laws that disarmed dangerous people, such as surety laws and "going armed" laws, and said the Second Amendment inquiry asks about the principles, not about a dead ringer. Several justices wrote separately, including Justices Sotomayor, Gorsuch, Kavanaugh, Barrett and Jackson, and their concurrences are a window into how differently the Court's members think about the method.

So Rahimi is a lesson in both directions. It shows the test is real, because the Court went through the history. And it shows the test doesn't ban every restriction, because the Court upheld the law. Anyone who tells you that Bruen means no gun law can ever stand has not read Rahimi, and anyone who tells you it changed nothing has not read Bruen.

The strongest objection, and the answer

The strongest argument against the history-and-tradition test runs like this. One, judges are not trained historians. Two, the founding era had no semi-automatic pistols, no modern cities and no mass shootings, so asking what eighteenth-century legislators did is a poor guide to the present. Three, historical evidence is often thin and mixed, so judges will find in it what they are inclined to find. Four, therefore a balancing test, which looks at today's problems, is better.

That is a serious argument and I will answer it in four parts. First, point two is partly right, which is why the Court says the government needs an analogue and not a twin. The question is whether the principle behind an old law fits a new one. Second, point three cuts against balancing as well: a judge who weighs "important government interests" against "burdens" is making a policy judgment too, and with no text to restrain him. Third, the Constitution already took a side in the balance. The people who wrote it decided that this right was worth protecting, and a judge who balances the right away every time the government has a good reason has repealed it by interpretation. Fourth, a rule that a judge can apply to every other right in the Bill of Rights, such as speech, religion and the rights of the accused, ought to apply to this one. Nobody in a free speech case asks whether this speech is worth protecting in light of current problems. They ask what the First Amendment covers. For the larger case for reading a text as it was written, see Originalism Explained for People Who Skipped Law School, and for the conservative defense of the Heller reading, see Why Heller got it right and the 'militia only' reading falls apart.

The bottom line

• Three cases built the modern framework: Heller (an individual right), McDonald (it binds the states), and Bruen (judges ask about text, history and tradition, not about balancing interests).
• Heller itself listed regulations that it called presumptively lawful, and Rahimi shows the history test does not forbid every restriction. The right is real and so are some limits.
• Where a case arises, the question is whether the law has a historical analogue, so legislators who want their laws to survive need to be able to show one.
• Read your own state's statute on the Legislature's website, and if you carry, read the rules on sensitive places and travel before you go. The details differ from state to state.
• Whatever side you are on, learn the method. It is the difference between predicting a decision and being surprised by one.