Other Protecting the Rule of Law Topics:

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 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). The lower federal courts have split on whether the Second Amendment guarantees gun rights outside one’s home or business, and some states have imposed onerous “good cause” requirements for obtaining concealed carry permits.

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 proposed gun control laws do not correlate with decreased violence, and 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 existing 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 in favor of 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 unreasonably restrict Second Amendment rights 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


Prevent the Federal Government from Passing Any New Ban of Any Particular Type of Firearm. Artificial bans on so-called assault rifles or on other items, such as high-capacity magazines, violate the Second Amendment and endanger the safety of law-abiding citizens by restricting their ability to obtain the best technology for protecting themselves and their families.

Prevent the Federal Government from Establishing a National Gun Ownership Registry. Such a registry would not provide any realistic aid to law enforcement, as there is simply no reason to believe that criminals would register their illegally obtained guns. Instead, the registry could be used to target citizens exercising their constitutional right of owning a gun.

Ensure that Instant Background Checks Are Conducted for the Sole Purpose of Keeping Guns Away from Individuals Who Are Already Legally Prohibited from Possessing a Firearm, such as convicted felons and individuals who have been adjudicated by a court of law to be mentally ill.

Ensure that the Ability of Citizens to Engage in Otherwise Lawful Private Sales of Their Firearms Is Not Restricted. States and the federal government should not restrict and impose regulatory burdens on private gun sales that infringe on Second Amendment rights.

Allow Citizens to Obtain Concealed-Carry Permits with No Requirement of Demonstrating to Government Officials “Good Cause,” or Overly Expensive Training or Fees. No citizen should be required to demonstrate “good cause” to exercise a constitutional right, whether it is the First Amendment or the Second Amendment. Governments should not use burdensome and expensive training and fees as a way of limiting gun ownership.

Ensure that a Concealed-Carry Permit Granted by Any State Is Given Full Faith and Credit by All Other States and by the Federal Government in National Parks and other National Lands. Article IV of the Constitution requires states to give “Full Faith and Credit” to the “public acts, Records, and judicial Proceedings of every other State.” States as well as the federal government should recognize the concealed carry permits issued by other states in the same manner that they recognize driver’s licenses issued by other states.

Allow Citizens to Purchase Firearms Across State Lines, as They Are Able to Purchase Other Products Regardless of Their State of Residence. There is no reason to treat firearms differently from other products, such as automobiles, and gun sales should be allowed across state lines. One of the reasons for the drafting of the Constitution to replace the Articles of Confederation was to stop states from limiting and restricting the flow of products and commerce across state lines.

Refuse Ratification of the Arms Trade Treaty, which nominally seeks to control the illicit international trade in arms, but which would 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


FACT: Gun ownership and right-to-carry legislation help to reduce crime.

  • Armed citizens are less likely to be injured by an attacker, and the number of defensive gun uses may be as high as 2.5 million times per year.
  • In localities where right-to-carry laws have been enacted, communities have seen a decline in murder rates and instances of other violent crimes.
  • According to researcher John Lott, analyzing county-level data for the entire U.S. from 1977 to 2000, there were annual reductions in murder rates of between 1.5 percent and 2.3 percent for each additional year that a right-to-carry law was in effect.
  • Gun buyback and gun turn-in programs have not reduced crime, and there is no evidence that so-called assault weapons bans or gun-free zones reduce gun-related violence.

FACT: An increase in gun ownership has not resulted in an increase in the number of gun-related crimes.

  • 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 shootings since then.
  • 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.
  • The number of unintentional deaths due to firearm-related incidents accounted for less than 1 percent of all unintentional fatalities in 2010.
  • The vast majority of gun-related deaths are suicides, not homicides.
  • 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.

Selected Additional Resources


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

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

John Lott, Florenz Plassmann, and John Whitley, “Confirming More Guns, Less Crime,” SSRN, December 9, 2002.

Nelson Lund, “The Second Amendment and the Inalienable Right to Self-Defense,” Heritage Foundation Constitutional Guidance for Lawmakers No. 16, 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 Daily Signal, 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, “Chicago Loses Another Gun Case,” National Review Online, January 23, 2017.

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, “Illinois Absolutely Tortured the Law to Restrict Your Second Amendment Rights,” Conservative Review, October 31, 2016.

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