Vol. 3, No. 2 | October 2008

The Second Amendment Protects a Personal Right to Bear Arms for Self Defense

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu

[Note:  Unless indicated otherwise, materials in quotation marks are quotes from the opinion of the court deciding the case under discussion.  Also, unless indicated otherwise, a case discussed below was decided by the United States Supreme Court.  Descriptions below of the facts of a case often quote verbatim (or at least draw heavily) from the opinion’s description of the facts or from the summary of the case provided by one of the legal reporters, such as Lexis-Nexis or www.findlaw.com]

District of Columbia v. Heller (U.S. Supreme Court, 6-26-08)

Facts:  In 1975, the District of Columbia was given authority to make its own laws (rather than Congress making its laws).  A year and a half later, the D.C. City Council passed an ordinance forbidding the registration of handguns (in effect banning the possession of handguns).  Because the District is a federal entity, the Constitution (and the Second Amendment) apply to it directly.

Issue:  Does the 2nd Amendment provide for an individual right to bear arms that makes the D.C. ordinance unconstitutional?

Held:  Yes, it does (5-4).  Although the Second Amendment uses “prefatory” language that refers to in an intended purpose to insure that the states would be able to maintain well-armed militia, this language does not necessarily mean that the framers of the Second Amendment did not mean to create a personal right to bear arms.  An examination of the history of the time and similar provisions that were placed in state constitutions suggest that the intent was to create a personal right that would extend at least to arms that are reasonably related to the desire for self-defense.

Note, however, that the 2nd Amendment has never been made applicable to the states.  Through a process often called Selective Incorporation, most of the provisions in the Bill of Rights, originally intended to apply only to the federal government, have been made applicable to the states as well.  The Supreme Court has decided that most of the rights in the Bill of Rights are part of what is meant by due process of law.  The 14th Amendment prohibits states from denying people life, liberty, or property without due process of law.  The Court’s ruling that the 2nd Amendment provides an individual right to bear arms has no effect on state gun control laws (unless and until the Court incorporates the 2nd Amendment).

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.