Protecting Second Amendment Rights



The Issue


The Second Amendment right of Americans to “keep and bear Arms” has been recognized by the Supreme Court of the United States in two recent and significant cases: District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). Those decisions declared unconstitutional the virtual ban on the ownership of handguns imposed by Washington, DC, and Chicago, Illinois, making clear that the Second Amendment grants an individual the right to bear arms in defense of one’s home, and that this right applies against federal, state, and local governments. The Supreme Court has not yet addressed the important issue of whether citizens have a constitutional right to carry a weapon in public (either concealed or open-carry) to help ensure their safety. The lower federal courts have split on whether the Second Amendment guarantees gun rights outside one’s home or business.

The Second Amendment guarantee is a right that is fundamental to a free society, which in turn ultimately depends on personal responsibility. Many existing and several recently proposed gun control laws do not correlate with decreased violence, but instead hamper the ability of law-abiding citizens to defend themselves and their families. Incidents of mass violence, often perpetrated by individuals with severe mental illness (against whose possession of guns, laws attempt to protect), should not be used by policymakers as an opportunity to restrict constitutional rights. Lawmakers have an obligation to be faithful to the original public meaning of the Second Amendment. Understandable revulsion at incidents of violence committed by dangerous or unhinged individuals should not cause a rush to judgment on prescriptions that violate first principles, ignore the real root causes of complex societal problems, or disregard careful social science research.

Although the Supreme Court has acknowledged the right of the government to impose reasonable regulations on the ownership and use of firearms, the federal government’s role must be limited and constrained by constitutional principles. Moreover, federal, state, and local governments have a constitutional obligation not to restrict Second Amendment rights unreasonably by making it unduly expensive or burdensome for ordinary Americans to purchase, own, carry, or use a firearm. Citizens have the right to defend themselves, their families, and their property.


Recommendations


The Federal Government Should Not Pass Any New Ban of Any Particular Type of Firearm.

The Federal Government Should Not Be Allowed to Establish a National Gun Ownership Registry.

Instant Background Checks Should Be Conducted Only to Prevent Individuals Who Are Currently Prohibited by Law from Possessing a Firearm, such as convicted felons and individuals who have been adjudicated to be mentally ill, from purchasing firearms from commercial dealers.

The Ability of Citizens to Engage in Otherwise Lawful Private Sales of Their Firearms Should Not Be Restricted.

States Should Allow Citizens to Obtain Concealed-Carry Permits with No Requirement of Demonstrating to Government Officials “Good Cause” or Overly Expensive Training.

A Concealed-Carry Permit Granted by Any State Should Be Given Full Faith and Credit by All Other States.

Citizens Should Be Able to Purchase Firearms Across State Lines as They Are Able To Purchase Other Products Regardless of the State of Their Residence.

The U.S. Senate Should Not Consent to U.S. Ratification of the Arms Trade Treaty, which nominally seeks to control the illicit international trade in arms and set standards for the licit trade, but which in application could restrain U.S. policymaking with respect to arms sales. This would undermine the ability of the U.S. to govern itself under the Constitution.


Facts and Figures


  • Armed citizens are less likely to be injured by an attacker, and the number of defensive gun uses may be as high as 2.1 million to 2.5 million times per year.
  • The rate of mass killings, defined as four or more fatalities in a 24-hour period, peaked (on a per capita basis) in 1929, and there has not been any upward trend in the number of mass shooting incidents.
  • According to the FBI, the total U.S. homicide rate has fallen by over half since 1980, and the gun homicide rate has fallen along with it.
  • While gun ownership doubled in the late 20th century, Americans are safer today from violent crime, including gun homicide, than they have been at any time since the mid-1960s.
  • In localities where right-to-carry laws have been enacted, communities have seen a decline in murder rates and instances of other violent crimes.
  • The number of unintentional deaths due to firearm-related incidents accounted for less than 1 percent of all unintentional fatalities in 2010.
  • Firearms-related death rates for youths age 15–19 declined from 1994 to 2009.
  • The vast majority of gun-related deaths are suicides, not homicides.
  • Gun buyback/turn-in programs are ineffective at reducing crime, and there is no evidence that so-called assault weapons bans or gun-free zones reduce gun-related violence.

Selected Additional Resources


David S. Addington, “Loose Language in Reid’s Gun Control Bill Allows the Beginnings of a National Gun Registry,” The Heritage Foundation, The Foundry, April 3, 2013.

Ted R. Bromund, “The U.S. Must Uphold the Arms Trade Treaty’s Limits at the First Conference of States Parties,” Heritage Foundation Issue Brief No. 4456, August 21, 2015.

Ted R. Bromund, “Top 10 Reasons Why the U.S. Should Not Sign the U.N. Arms Trade Treaty,” Heritage Foundation Issue Brief No. 4028, August 27, 2013.

Ted R. Bromund, “Why Firearms Makers Are So Worried Even as the Second Amendment Is Stronger than Ever,” Heritage Foundation Commentary, January 29, 2015.

Nelson Lund, “The Second Amendment and the Inalienable Right to Self-Defense,” Heritage Foundation Report No. 16-CGL, April 17, 2014.

Nelson Lund, “The Second Amendment Comes Before the Supreme Court: The Issues and the Arguments,” Heritage Foundation WebMemo No. 1851, March 14, 2008.

John G. Malcolm, “The So-Called Gun Show Loophole: Lies, Damned Lies, and Statistics,” The Heritage Foundation, The Foundry, February 8, 2013.

John G. Malcolm and Jennifer A. Marshall, “The Newtown Tragedy: Complex Causes Require Thoughtful Analysis and Responses,” Heritage Foundation Backgrounder No. 2761, January 18, 2013.

Frank Miniter, “Is this the Gun Case the U.S. Supreme Court Will Take?Forbes, June 22, 2015.

Hans A. von Spakovsky, “Concealed Carry: Illinois Supremes Catch Up on the Second Amendment,” Heritage Foundation Issue Brief No. 4055, September 26, 2013.

Hans A. von Spakovsky, “Protecting the Second Amendment (But Just Barely),” The Heritage Foundation, The Foundry, June 28, 2010.

The Consequences of McDonald v. Chicago: Will the Sky Fall or Do More Guns Mean Less Crime?” The Heritage Foundation, Video Event, July 20, 2010.