Civil Rights

The Second Amendment: What Are the Limits on the Right to Own Guns?

By E.A. Gjelten, Author and Editor
Most U.S. citizens have a Second Amendment right to own and carry firearms, but that doesn’t mean all gun control is unconstitutional.

The meaning and scope of the Second Amendment has long been one of the most hotly contested constitutional issues in the United States. In 2008, the U.S. Supreme Court ruled that the amendment protects the rights of individuals to have and use guns for legal purposes. At the same time, however, the Court clearly said that the Second Amendment right isn’t unlimited. Since that decision, other courts in the country have upheld most—but not all—federal, state, and local gun control laws.

Gun Rights Are Individual Rights

The long-running argument over the Second Amendment largely stems from its language, especially at the beginning: “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.” For decades, many scholars and courts interpreted the amendment as preserving states’ authority to keep militias, which would mean that the right to have firearms was linked to militia service. But in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court opted for a broader interpretation, finding that the Second Amendment gave individuals a right to have guns—unconnected to any militia service—and to use them for traditionally legal purposes like self-defense.

Some Gun Control Is Constitutional

The Supreme Court said that the law involved in Heller was unconstitutional because it essentially banned all handguns—the most popular type of gun Americans choose for “the core lawful purpose of self-defense.” It also kept people from using their guns to defend their families and property by requiring them to keep all firearms trigger-locked or dissembled, even in the home.

What about other kinds of guns and other reasons for having them? Like most constitutional rights, the Heller Court explained, “the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” In the years since that decision, there’s been a flood of legal challenges to federal and state gun control laws. According to one study, in 94 percent of those cases, courts have found that reasonable gun regulations didn’t violate the Second Amendment. They’ve mostly relied on the Heller Court’s explanation that its ruling shouldn’t “cast doubt” on several longstanding gun restrictions, including bans on gun ownership by certain individuals (like felons), prohibitions on some types of “dangerous and unusual weapons,” limits on carrying firearms in certain public places, and requirements for gun sales. Although federal law covers some of these restrictions, most gun control is a patchwork of state and local laws and regulations. That means it can be wildly different from place to place.

Restrictions on Some Gun Owners

Federal law outlaws the possession of firearms or ammunition by several categories of people, including:

  • convicted felons
  • anyone who’s been convicted of a misdemeanor for domestic violence or is under a domestic violence restraining order (but only if the order protects an “intimate partner” or child from physical force or threats)
  • people who’ve been committed to a psychiatric institution or labeled mentally ill under a court ruling
  • undocumented immigrants and those in the country under nonimmigrant visas
  • illegal drug users, and
  • former military members who had a dishonorable discharge.

(18 U.S.C. § 922(g).)

Many states also prohibit or restrict gun possession by other groups of people, such as stalkers and people subject to other kinds of restraining orders, minors, juvenile offenders, and those convicted of alcohol- and/or drug-related crimes. And a few states allow courts to order some people to give up their guns temporarily if they pose an immediate risk to themselves or others.

Restrictions on Some Types of Guns

Under federal law, it’s illegal for civilians to have fully automatic weapons (referred to as machine guns in 18 U.S.C. § 922(l)). Another federal law that banned assault weapons (semiautomatic firearms with certain features) expired in 2004, and attempts to renew it have failed so far. After the 2017 mass shooting in Las Vegas, there were widespread calls supporting a ban on bump stocks—the same device that essentially converted the shooter’s rifles into automatic weapons. But as has been the case after other mass shootings, congressional action stalled.

Still, a handful of states and local governments—including California, New Jersey, and New York—have their own prohibitions or restrictions on assault weapons that have withstood court challenges. And although the Heller Court ruled out blanket bans on handguns, many states regulate handguns by requiring permits to buy them.

Guns in Public

As the Supreme Court recognized in Heller, guns have traditionally been prohibited or restricted in certain public places under federal, state, and local laws. These “sensitive places” include schools, government buildings and courtrooms, public transit facilities, airports, and polling stations.

A U.S. appellate court has held that the Second Amendment doesn’t protect carrying a concealed weapon in public (Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013)). Most states require a concealed-carry permit, but the conditions vary a lot from state to state. The strictest laws allow authorities to deny a permit when the applicant doesn’t have a good moral character or a good reason for carrying a gun in public. The most lenient require authorities to issue the permit to anyone who applies, with little or no discretion. Nearly all states restrict concealed weapons in some places, such as bars, hospitals, and public sporting events. But several states allow concealed weapons on public college campuses, under legislation or state court rulings that overturned longtime bans.

And finally, some states have “open carry” laws that ban or set conditions on openly carrying certain types of guns in public or in private cars.

Buying and Selling Guns

Licensed gun dealers have to meet several requirements under federal law, including performing background checks, keeping records of sales, and reporting multiple sales of handguns to the same person. (18 U.S.C. § 923.) But those requirements don’t apply to private sellers, including those at gun shows. Some states have stronger laws, and a few require licensing for the sale of all guns.

Talking to a Lawyer

If you believe that a local law or regulation infringes on your Second Amendment rights as a gun owner, you might want to speak with a civil rights attorney about your options for challenging the restriction. And if you’ve been charged with a crime related to owning, carrying, or using a gun, you should strongly consider consulting with a criminal defense lawyer. The circumstances in each case are unique, and the laws vary in different states and localities. An attorney who’s experienced in this area can explain how the relevant laws apply in your situation and what defenses you might have.

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