A Right to Bear Arms?
The Issue:  Does the Second Amendment Give Individuals a Right to Bear Arms?
Introduction
The meaning of the Second Amendment depends upon who you talk to.  The National Rifle Association, which has the Second Amendment (minus the militia clause) engraved on its headquarters building in Washington, insists that the Amendment guarantees the right of individuals to possess and carry a wide variety of firearms.  Advocates of gun control contend that the Amendment was only meant to guarantee to States the right to operate militias.  The Supreme Court could easily resolve this debate, but ever since the cryptic decision of U. S. vs. Miller in 1939, the Court has ducked the issue. 

Miller is subject to two possible interpretations.  One, that the Second Amendment is an individual right, but that the right only extends to weapons commonly used in militias (the defendants in Miller were transporting sawed-off shotguns).  The second--broader--view of Miller is that the Amendment guarantees no rights to individuals at all. 

There is also a second open question concerning the Second Amendment: If it does create a right of individuals to own firearms, is the right enforceable against state regulation as well as against federal regulation?  In 1876, the Supreme Court said the right--if it existed--was enforceable only against the federal government, but there's been a wholesale incorporation of Bill of Rights provisions into the 14th Amendment since then, and it's not clear that the Court would come to the same conclusion today.  In Quilici vs Morton Grove, a case involving a challenge to a Chicago suburb's ban on the possession of handguns, the Seventh Circuit concluded that the right was not enforceable against the states.

In 2007, the D. C. Court of Appeals, in Parker v District of Columbia, struck down a Washington, D.C. ban on individuals having handguns in their homes.  With its 2 to 1 ruling, the D. C. Circuit became the nation's second court of appeals (following the Fifth Circuit) to find that the Second Amendment creates an individual right to own firearms.  Most other circuits courts had concluded the Second Amendment protects only the rights of states to maintain militias.  The split in the circuits suggested that the time was finally be ripe for another Supreme Court decision on the issue.  The Supreme Court granted cert in the fall of 2007 (the case has been re-named District of Columbia v Heller) and a decision is expected in June 2008.

Cases
United States vs. Miller (U.S. SCt. 1939)
Quilici vs Morton Grove (7th Cir. 1982)
Parker v District of Columbia (D.C. Cir.  2007)


District of Columbia officials hold a press conference to denounce the Court of Appeals decision in Parker v D. C.

...[T]he Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

Judge Laurence Silberman, for the majority in Parker v District of Columbia (DC Cir. 2007)

The Second Amendment 
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.
Supreme Court to Hear Second
Amendment Case in 2008
The Supreme Court granted cert in November 2007 in the case of District of Columbia v. Heller, No. 07-290. Certiorari is granted limited by the court to the following question: Do D.C. Code Section 7-2502.02(a)(4), which generally bars the registration of handguns; Section 22-4504(a), which bars carrying a pistol without a license; and Section 7-2507.02, which requires that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

Opinion below of the D. C Circuit:
Parker v District of Columbia (2007)
(students should skim majority opinion for class discussion)

Questions

1. Does the historical evidence support the conclusion that the Second Amendment guarantees the right of individuals to possess firearms?
2.  If the Second Amendment does create an individual right, how broad is the right?  Does it include the right to possess arms that would be useful to a militia today--hand grenades, rocket launchers, etc.?  Or does it create only a right to possess arms that would have been used by a militia in 1791--muskets?  Or is the right answer somewhere between these extremes?
3.  The Second Amendment speaks of the right to bear arms.  Does this suggest, for example, that there is no right to possess weapons that could not be carried, such as cannons?
4.  If the underlying concern that inspired the Second Amendment--fear of an abusive federal government oppressing states and their citizens--no longer exists, should that affect how we interpret the Amendment?
5.  What is the argument for choosing what provisions of the Bill of Rights we will give full effect?
6.  If the test for whether a provision of the Bill of Rights is incorporated into the 14th Amendment is whether the right in question is "fundamental to the American scheme of justice" what conclusion should we come to with respect to the right to keep and bear arms?
7. Which of the following regulations of firearms is constitutional?: (1) an age restriction, (2) a four-day waiting period for purchase of a firearm, (3) a ban on the carrying of concealed weapons.

The Morton Grove trustees that voted for gun ban

Links
Sources on the Second Amendment (UCLA Law)
Second Amendment Foundation
Citizen's Committee for the Right to Keep Arms
National Rifle Association
Handgun Control, Inc.
 Exploring Constitutional Conflicts Homepage