Chapter Seven

The Second Amendment and Gun Control

Chapter Outline

A. Overview

B. Historical Context

C. Modern Federal Laws and Supreme Court Cases

D. State Approaches

E. The Continuing Debate

A. Overview

The Second Amendment states, " 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 an amendment that is only 27 words long, it has caused some of the most intense and lasting controversies of any words in the Constitution. Over the past century, two opposing and extreme viewpoints have shaped the public's perception of the gun control debate. However, most Americans hold a much more moderate position on gun ownership than the two positions often highlighted in public debates and media coverage.

Before exploring these contrasting points of view, it is important to understand what is meant by the term “militia.” Historically, a militia referred to a military force composed of civilians raised to supplement a regular army in times of emergency. Under current federal law, private militias are not permitted to operate without government authorization. Most states have similar regulations. The modern equivalent of a lawful militia is generally considered to be the National Guard, which functions under both state and federal authority. The word militia is not synonymous with the military. In other words, the Army, Navy, Air Force, and Marines are not considered part of a "militia" (Legal Information Institute, n.d.).

Understanding that the term "militia" does not mean the same thing as "military" provides important context for interpretations of the Second Amendment. First, Second Amendment absolutists oppose all forms of gun control. Sometimes referred to online as 2A advocates, with 2A being shorthand for the Second Amendment, they view the amendment as granting individual citizens the right to bear arms and believe that militias are mentioned only incidentally. A small percentage of these advocates even oppose laws that require individuals to obtain a license to own or carry a firearm, as well as requirements to register their weapons. Although most supporters of the Second Amendment have no issues with licensure requirements, many see red flag laws, also known as extreme risk protection orders, as an example of government overreach and oppose bans on military-style weapons, universal background checks, and restrictions on so-called “ghost guns.” They regard these measures as incremental steps toward a total gun ban and fear that a tyrannical government could easily disarm the American citizenry if such laws continue (NRA-ILA, n.d.).

Second, gun control advocates interpret the Second Amendment as primarily granting the right to bear arms to organized militias, based on the amendment’s opening phrase. They support all forms of gun control mentioned above (Brady United, n.d.). A small percentage of gun control advocates believe that only the armed services, military, and police should own firearms, and that all private ownership should be banned, even for hunting and self-defense (National Coalition to Ban Handguns, 1980).

Third, research shows that the majority of Americans’ beliefs fall somewhere in the middle of these first two points of view. A typical American believes the Second Amendment provides individuals, the military, police, and government-approved militias with the right to bear arms. They do not believe all guns should be banned. Most support red flag laws, bans on military-style weapons, and universal background checks (Pew Research Center, 2023; Gallup, 2023).

Like other hot-button issues, such as abortion and immigration, the majority of Americans do not hold extreme political views about the Second Amendment. Before exploring the history of gun control, it is helpful to understand the main arguments behind these debates, even those that are polarized, in order to provide context for the challenges Congress and the Supreme Court have faced over the past century.

Please review the Summary of Gun Control Arguments below. The arguments in red represent common "pro-gun" arguments. The arguments in blue represent common gun control arguments. The argument is purple font at the end of the chart has data supporting both sides of the Second Amendment debate.

Image 7.1

Source: Data compiled and summarized by Professor Heidi Getchell-Bastien

from multiple publicly available sources cited in the chart.

A. Overview - continued

After reviewing the arguments both for and against gun control, it is very important to review unbiased data and research before forming an opinion on such a complex issue. Social media, news outlets, websites, family members, friends, and even educators may unintentionally present information to students from a particular perspective. Therefore, it is important for students to think critically and reach their own conclusions. For the most recent, nonpartisan statistics on gun violence and firearm ownership, see the Pew Research Center’s report, “What the Data Says About Gun Violence in the U.S.” (2023).

B. Historical Context

The National Firearms Act of 1934 (NFA) was one of the first major federal gun laws. It required federal registration, taxation, and regulation of certain categories of firearms, such as machine guns, suppressors (silencers), and short-barreled rifles and shotguns. But it did not completely ban civilian ownership of these items. While the Act imposed taxes on transfers and increased regulatory burdens, Congress intended not only to raise revenue but to also restrict access to weapons frequently used in violent crime.

The constitutionality of the National Firearms Act was tested in United States v. Miller (1939), the first major Supreme Court case to interpret the Second Amendment. The case challenged the Act’s requirement that sawed-off shotguns be registered, which significantly restricted their ownership. Sawed-off shotguns, meaning shotguns with shortened barrels, are easier to conceal, have a wider shot spread at close range, and can cause greater destructive impact when fired at short distances. The Supreme Court upheld the law, ruling that the right to bear arms was connected to the preservation of a “well-regulated militia.” Because there was no evidence that a short-barreled shotgun had a reasonable relationship to militia efficiency, the Court concluded that the Second Amendment did not protect possession of that weapon.

The next major piece of legislation was the Gun Control Act of 1968. The GCA regulated interstate firearm commerce and banned interstate transfers of firearms to private persons. It also placed new restrictions on who could legally possess or receive firearms, banning felons from owning them. It strengthened licensing requirements for gun dealers and imposed record-keeping duties. This law helped shape early interpretations of gun laws that emphasized collective or regulatory control, rather than purely individual rights.

In 1980, a convicted felon challenged the Gun Control Act of 1968 in Lewis v. United States. Lewis argued that the law violated his Second Amendment rights. The Supreme Court upheld the law, ruling that a prior felony conviction, even one obtained without counsel, is a valid basis for restricting firearm possession. The Court confirmed that Congress may prohibit felons from owning guns as part of its authority to regulate firearms under the Gun Control Act of 1968.

C. Modern Federal Laws and Supreme Court Decisions

After 1980, three major federal gun laws were passed in succession. The Law Enforcement Officers Protection Act of 1986 prohibited the manufacture and sale of armor-piercing ammunition capable of penetrating bulletproof vests worn by police officers. The Undetectable Firearms Act of 1988 banned the production and possession of guns that could evade metal detectors or X-ray machines, addressing the growing concern over plastic and composite firearms. Finally, the Gun-Free School Zones Act of 1990 made it a federal offense to knowingly possess a firearm within 1,000 feet of a school.

The Brady Act, named after White House Press Secretary James Brady, who was permanently injured during the 1981 assassination attempt on President Ronald Reagan, was signed into law in 1993 and fully implemented by 1998. The law required federal background checks on individuals purchasing firearms from licensed dealers and initially imposed a five-day waiting period before a handgun could be transferred. When the National Instant Criminal Background Check System (NICS) became operational in 1998, the waiting period was replaced with an instant computerized check to determine whether a buyer is prohibited from purchasing a gun due to factors such as felony conviction, domestic violence, or mental health adjudication. The Brady Act significantly expanded federal oversight of handgun sales and remains a cornerstone of federal background check procedures.

Officially part of the Violent Crime Control and Law Enforcement Act of 1994, the Federal Assault Weapons Ban (FAWB) prohibited the manufacture, sale, and possession of certain semiautomatic firearms defined as “assault weapons,” as well as large-capacity magazines that could hold more than ten rounds of ammunition. The law identified 19 specific firearm models by name and applied a feature-based definition covering semiautomatic rifles with detachable magazines and at least two military-style features (such as a pistol grip, flash suppressor, or folding stock). The FAWB included a 10-year sunset clause, meaning it expired automatically in 2004. Although studies disagree on its effectiveness, most researchers found that mass-shooting fatalities declined during the ban and increased afterward.

The Lautenberg Amendment, enacted in 1996 as part of the Omnibus Consolidated Appropriations Act, expanded the Gun Control Act of 1968 by prohibiting individuals convicted of misdemeanor crimes of domestic violence from possessing or purchasing firearms. Unlike earlier laws that applied only to felons, this amendment closed a loophole that had allowed many domestic abusers to legally own guns. The law also applies to law enforcement and military personnel, meaning even on-duty possession is banned if the individual has a qualifying conviction.

The next major Supreme Court case analyzing the Second Amendment did not present itself until 2008. In District of Columbia v. Heller, the Supreme Court struck down a Washington, D.C. handgun ban and their requirement that firearms in the home be kept inoperable. The Court held, for the very first time, that the Second Amendment protects an individual right to possess firearms unconnected to militia service, particularly for lawful purposes such as self-defense within one’s home. This landmark decision overturned decades of precedent interpreting the Second Amendment as a collective right and fundamentally reshaped modern gun rights jurisprudence.

Two years later the Supreme Court decided McDonald v. Chicago. In that case the Supreme Court ruled that the Second Amendment applies to the states through the Incorporation Doctrine. This decision extended the individual right to bear arms recognized in Heller to all fifty states and local governments. This decision limited the ability of states and municipalities to enact total firearm bans.

In New York State Rifle & Pistol Association v. Bruen (2022), the Supreme Court struck down New York’s century-old law that required applicants to show “proper cause” to obtain a license to carry a handgun in public. The Court held that the Second Amendment protects an individual’s right to carry firearms outside the home for self-defense and established a new standard for evaluating gun regulations. Under this “history and tradition” test, modern firearm laws are constitutional only if they are consistent with the nation’s historical tradition of firearm regulation. The decision significantly expanded gun rights and made it more difficult for states to justify restrictive public carry laws.

Two days after the Court decided the Bruen case, President Biden signed the Bipartisan Safer Communities Act (2022), which was the most significant federal gun legislation in nearly three decades. It expanded background checks for gun buyers under age 21, closed the “boyfriend loophole” by restricting firearm access for dating partners convicted of domestic violence, and provided funding for state red-flag laws and mental health programs. The act sought to balance gun rights with public safety concerns in response to mass shootings in Uvalde, Texas, and Buffalo, New York.

For the most recent Supreme Court case addressing gun control, please read the excerpt from United States v. Rahimi (2024) below. This decision clarified how the “history and tradition” test applies to firearm restrictions, particularly for individuals subject to domestic violence restraining orders.

Landmark Case Spotlight:

United States v. Rahimi (2024)

Case Excerpt (Not Full Case)

Click here for full text.

Chief Justice Roberts delivered the opinion of the Court.

A federal statute prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual. 18 U.S.C. §922(g)(8). Respondent Zackey Rahimi is subject to such an order. The question is whether this provision may be enforced against him consistent with the Second Amendment.

I A In December 2019, Rahimi met his girlfriend, C.M., for lunch in a parking lot. C.M. is also the mother of Rahimi’s young child, A.R. During the meal, Rahimi and C.M. began arguing, and Rahimi became enraged. C.M. attempted to leave, but Rahimi grabbed her by the wrist, dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard. When he realized that a bystander was watching the altercation, Rahimi paused to retrieve a gun from under the passenger seat. C.M. took advantage of the opportunity to escape. Rahimi fired as she fled, although it is unclear whether he was aiming at C.M. or the witness. Rahimi later called C.M. and warned that he would shoot her if she reported the incident.

Undeterred by this threat, C.M. went to court to seek a restraining order. In the affidavit accompanying her application, she recounted the parking lot incident as well as other assaults. She also detailed how Rahimi’s conduct had endangered A.R. Although Rahimi had an opportunity to contest C.M.’s testimony, he did not do so. On February 5, 2020, a state court in Tarrant County, Texas, issued a restraining order against him. The order, entered with the consent of both parties, included a finding that Rahimi had committed “family violence.” It also found that this violence was “likely to occur again” and that Rahimi posed “a credible threat” to the “physical safety” of C.M. or A.R. Based on these findings, the order prohibited Rahimi from threatening C.M. or her family for two years or contacting her during that period except to discuss A.R. It also suspended Rahimi’s gun license for two years.

In May, however, Rahimi violated the order by approaching C.M.’s home at night. He also began contacting her through several social media accounts. In November, Rahimi threatened a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon. While Rahimi was under arrest for that assault, Texas police identified him as the suspect in at least five additional shootings.

The first, which occurred in December 2020, arose from Rahimi’s dealing in illegal drugs. After one of his customers “started talking trash,” Rahimi drove to the man’s home and shot into it. While driving the next day, Rahimi collided with another car, exited his vehicle, and proceeded to shoot at the other car. Three days later, he fired his gun in the air while driving through a residential neighborhood. A few weeks after that, Rahimi was speeding on a highway near Arlington, Texas, when a truck flashed its lights at him. Rahimi hit the brakes and cut across traffic to chase the truck. Once off the highway, he fired several times toward the truck and a nearby car before fleeing. Two weeks later, Rahimi and a friend were dining at a roadside burger restaurant. When the restaurant declined his friend’s credit card, Rahimi pulled a gun and shot into the air. The police obtained a warrant to search Rahimi’s residence. There they discovered a pistol, a rifle, ammunition—and a copy of the restraining order.

B Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U.S.C. §922(g)(8). At the time, such a violation was punishable by up to ten years’ imprisonment (since amended to fifteen). A prosecution under §922(g)(8) may proceed only if three criteria are met.

First, the defendant must have received actual notice and an opportunity to be heard before the order was entered. Second, the order must prohibit the defendant from either “harassing, stalking, or threatening” an “intimate partner” or the partner’s child, or “engaging in other conduct that would place [the] partner in reasonable fear of bodily injury.” Third, the order must either contain a finding that the defendant “represents a credible threat to the physical safety” of the intimate partner or child, or explicitly prohibit the “use, attempted use, or threatened use of physical force” against them.

Rahimi’s restraining order met all three criteria. He received notice and a hearing, the order prohibited him from contacting or threatening C.M., and it found that he posed a credible threat to her safety.

Rahimi moved to dismiss the indictment, arguing that §922(g)(8) violated the Second Amendment on its face. The District Court denied his motion, and Rahimi pleaded guilty. On appeal, he again raised his Second Amendment challenge. After this Court decided New York State Rifle & Pistol Association v. Bruen (2022), which held that firearm regulations must be consistent with the nation’s “historical tradition of firearm regulation,” the Fifth Circuit reversed and held §922(g)(8) unconstitutional. The Supreme Court granted certiorari.

II When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, U.S. firearm laws have included provisions preventing individuals who threaten physical harm from misusing firearms. As applied to Rahimi, §922(g)(8) fits comfortably within this tradition.

The Court reaffirmed that the Second Amendment protects an individual right to bear arms, but that this right, like most others, is not unlimited. Historical evidence from the colonial and founding eras shows that governments regulated the misuse of weapons, prohibited the carrying of “dangerous and unusual weapons,” and imposed restrictions on individuals who posed threats to others. Early “surety” and “going armed” laws allowed courts to require individuals likely to breach the peace or threaten others to post bonds or be disarmed temporarily.

These laws, which provided procedural safeguards and limited durations, were aimed at preventing violence before it occurred. The Court found §922(g)(8) analogous in both purpose and method: it applies only to individuals found by a court to pose a “credible threat” to another’s physical safety and imposes only a temporary restriction on firearm possession.

The Court rejected Rahimi’s argument that District of Columbia v. Heller (2008) forbids such laws because they restrict possession in the home. Heller held that some restrictions—such as those on felons or the mentally ill—are “presumptively lawful.” Likewise, §922(g)(8) is lawful because it targets individuals judicially determined to be dangerous.

The Court also clarified that Bruen does not require modern laws to have identical historical twins, only that they be “relevantly similar” in purpose and scope to historic firearm regulations. The Fifth Circuit erred by applying too strict a historical test and by treating hypothetical cases as determinative rather than focusing on the statute’s constitutionality as applied to Rahimi.

Finally, the Court rejected the government’s argument that Rahimi could be disarmed simply because he was “not responsible.” That standard, the Court said, is vague and not grounded in precedent.

III. Holding

The Court held that 18 U.S.C. §922(g)(8) is constitutional as applied to individuals found by a court to pose a credible threat to others’ safety.
Such persons may be temporarily disarmed consistent with the Second Amendment.

The judgment of the Court of Appeals for the Fifth Circuit was reversed and the case remanded.It is so ordered.

Photograph of Jackson “Jack” Miller, one of the defendants in United States v. Miller (1939), alongside a sawed-off shotgun, a firearm with a shortened barrel that increases the spread and impact of pellets at close range, making it lethal and difficult to control. Because they can be easily concealed and their destructive power, such weapons were regulated under the National Firearms Act of 1934. The Supreme Court upheld these restrictions, finding no evidence that sawed-off shotguns were connected to the preservation or efficiency of a well-regulated militia.

Image 7.2

SilencerCo. (n.d.)

D. State Approaches

Even though the Supreme Court has affirmed that the Second Amendment protects an individual right to bear arms and that this right applies to the states, firearm regulations continue to differ significantly across the country. For example, Massachusetts is known for its strict licensing requirements and limits on certain types of firearms, while Texas has some of the most permissive gun laws in the nation, allowing permitless carry for most adults.

Although Everytown for Gun Safety is a well-known gun control advocacy organization, its online comparison tool for state gun laws is considered accurate and informative. The tool is also regularly updated by the researchers who maintain the database. Click here to compare gun laws in Massachusetts and Texas. (Other organizations have similar online comparison tools, such as the National Rifle Association, the Giffords Law Center, and the RAND Corporation, but most students find the Everytown tool is the easiest to navigate.)

When comparing the two states, you will see that Massachusetts ranks #2 in the nation for gun law strength, according to Everytown's analysis, while Texas ranks #32. Massachusetts has one of the lowest gun death rates in the country at 3.7 per 100,000 residents, compared with 14.9 per 100,000 in Texas. Massachusetts has comprehensive firearm laws, including mandatory background checks, concealed carry permits, extreme risk protection orders, and a ban on assault weapons and high-capacity magazines. The state also regulates ghost guns, requires dealer licensing, and allows local governments to enact additional gun restrictions.

By contrast, Texas has few statewide restrictions. It does not require background checks for private sales or gun show purchases, permits open and concealed carry without a license, and has no bans on assault-style weapons, bump stocks, or high-capacity magazines. However, Texas does have laws prohibiting gun possession by convicted felons, domestic abusers, and those under restraining orders, and it supports violence intervention programs (Everytown for Gun Safety Research & Policy, 2025).

It’s also helpful to compare two other states, such as California and Idaho, by looking directly at their crime rates and gun control laws while setting aside the site’s subjective rankings. What patterns emerge from the data? What factors are you seeing that cannot be explained by data alone?

Correlation does not equal causation, but state-by-state law comparison tools can offer useful, objective data to help understand the complex issue of gun control if students ignore editorial enhancements, such as rankings, and focus solely on the statistics related to crime.

E. The Continuing Debate

In the future, federal changes to gun laws may depend on new legal challenges arising from state gun regulations that are appealed to the Supreme Court. Some special interest groups contend that current laws in states such as Massachusetts and California violate recent Supreme Court decisions by imposing overly restrictive limits on gun ownership. Gun control advocates, however, continue to argue that the ongoing rise in gun violence and mass shootings demonstrates that reviving the federal Assault Weapons Ban is long overdue.

Regardless of these long-standing debates, the current landscape of gun policy in the United States resembles a patchwork quilt shaped largely by state lawmakers. Pending federal proposals include a national red flag law, though deep divisions in Congress make passage unlikely. At the state level, the Massachusetts legislature is considering legislation that would allow victims of gun violence to bring civil lawsuits against firearm industry members, while the New Hampshire legislature has recommended passage of a bill that would prohibit colleges from regulating firearms on campus, despite opposition from university law enforcement officials who warn it could undermine campus safety and increase suicide risks (National Rifle Association Institute for Legislative Action, 2026; Sexton, 2026). A central question remains whether national consistency in gun regulation is possible, or even desirable.

Conclusion

The Second Amendment has been interpreted in different ways. Historically, it reflected the Founders’ belief that an armed citizenry could defend against tyranny and protect community safety. Over time, Americans have developed additional interpretations of this right. Modern Supreme Court decisions have affirmed the right for individual to own guns while allowing certain regulations. Today, states vary widely in their gun laws, and the national debate continues over how to balance public safety with constitutional liberty.

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Please note that the URLs listed below are presented as plain text rather than active hyperlinks in order to avoid triggering automated security filters.

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