Background: one sentence, two readings
"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."
The whole fight is about which half you lean on: the militia part, or "the right of the people."
- Collective-right view: it's about state militias, period.
- Individual-right view: the first clause just explains why; the right itself belongs to individuals.
In United States v. Miller (307 U.S. 174, 1939), the Court upheld regulation of a sawed-off shotgun because nothing showed it had any connection to a militia. For decades after that, the collective reading mostly carried the day in the lower courts.
The case: D.C.'s handgun ban
- Citation
- District of Columbia v. Heller, 554 U.S. 570 (2008)
- Vote
- 5–4, opinion by Justice Antonin Scalia
- Plaintiff
- Dick Heller, a D.C. special police officer (armed on duty, but couldn't keep a handgun at home)
- Law at issue
- D.C.'s effective ban on handguns in the home + requirement to keep firearms disassembled or trigger-locked
Law is hard because the same sentence can mean different things depending on when you read it from. 1791? Today? Interpreting texts across centuries is a whole profession for a reason. Scalia went digging through founding-era dictionaries and documents to figure out what these words meant to the people who wrote them.
The rulings: from Heller to Rahimi
But Scalia added that nothing in the opinion should cast doubt on "longstanding prohibitions" like bans on possession by felons and the mentally ill, or in sensitive places like schools and government buildings. That one paragraph became the battlefield for every case since.
- 2010 McDonald v. City of Chicago (561 U.S. 742): the right applies against the states too, through the 14th Amendment.
- 2022 NYSRPA v. Bruen (597 U.S. 1, 6–3, Thomas): New York's "proper cause" requirement for carrying in public struck down. And a brand-new test: a gun law must fit the Nation's historical tradition of firearm regulation. No more balancing against public interest.
- 2024 United States v. Rahimi (No. 22-915, 8–1, Roberts): disarming people under domestic-violence restraining orders is constitutional; it fits the historical tradition of disarming dangerous people.
Heller is on Justia; commentary in the Constitution Annotated.
Korea comparison: a license, not a right
Korea's Constitution has no right to bear arms. Under the Act on the Safety Management of Guns, Swords, Explosives, etc., guns are banned by default and allowed only by permit. Even hunting rifles are normally stored at a police station when not in use.
| Question | United States | South Korea |
|---|---|---|
| Starting point | Individual constitutional right | Statutory ban + permits |
| How a restriction is justified | Consistency with historical tradition (Bruen) | Proportionality to the public interest |
Cash Note
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Beauty UP
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Criticism and debate
- History test in practice: do judges now have to be historians? What's the "historical analogue" for an AR-15 or a 3D-printed gun? Lower courts have split all over the place.
- Ignoring real-world data: the Bruen dissent argued that leaving out evidence about gun violence makes no sense.
- The other side: that's exactly the point, defenders say. A written right shouldn't be whittled down by judges' policy views, same as any other right.
The gun debate is really a fight over what's allowed on the scale when you limit a right. Only history? Or present-day danger too? Get that difference and you'll instantly see why American and Korean legal instincts feel so far apart. Here's how to use that in your studies.
Study notes
- Comparing tests: U.S. history-and-tradition vs Korea's proportionality principle. There's a full comparison table in proportionality and levels of scrutiny.
- Korean material: Constitutional Rights of Psychopaths and Their Limits: Standards for Restricting Fundamental Rights Through Criminal Responsibility, Human Dignity, Personal Liberty and Equality walks through the standard for restricting basic rights with a Korean example. Great for seeing the "Korean scale" in action.
References and official sources
- Constitution Annotated, Second Amendment. congress.gov
- United States v. Miller, 307 U.S. 174 (1939).
- District of Columbia v. Heller, 554 U.S. 570 (2008). Justia
- McDonald v. City of Chicago, 561 U.S. 742 (2010).
- New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022).
- United States v. Rahimi, No. 22-915 (U.S. June 21, 2024).