Second Amendment Protects Gun Owners from State, Local Bans

PHOENIX – In its 2008 decision in District of Columbia v. Heller, the U.S. Supreme Court declared that individual gun ownership is a basic right guaranteed to Americans by the U.S. Constitution. But the decision applied immediately only to unconstitutional restrictions on gun ownership adopted under federal authority, not the individual states. A new case before the Supreme Court presents an opportunity to protect gun rights from state or local interference through the 14th Amendment, just like other freedoms enshrined in the Bill of Rights.

Nick Dranias, the Goldwater Institute’s constitutional policy director, explains why in a new policy brief, “Reconsidering McDonald v. Chicago: How the 14th Amendment Obligates States to Protect the Fundamental Right to Bear Arms.”

The 14th Amendment originally was adopted after the Civil War to guarantee that former slaves could exercise all of their rights as American citizens. Since then, the Supreme Court has used the 14th Amendment to stop states from usurping basic constitutional liberties. But the Court has been reluctant to expressly state that all rights protected by the U.S. Constitution must be guaranteed by federal and state and local governments.

The Supreme Court is now considering McDonald v. Chicago because two appellate courts have refused to apply gun rights to the states, citing three century-old opinions from the higher court. But Mr. Dranias concludes those three cases do not authorize states to violate rights protected by the Second Amendment. He adds the principle of federalism, the idea that states have the sovereign right to act in areas not granted to the federal government, cannot be used to justify the stripping of gun rights.

“Federalism is ultimately aimed at securing individual liberty,” Mr. Dranias writes. “The goal of preserving federalism should not trump the fundamental rights federalism was meant to protect.”

Goldwater’s Scharf-Norton Center for Constitutional Litigation also filed an amicus brief in McDonald v. Chicago and the Court is scheduled to hear oral arguments in the case on March 2, 2010.

“Reconsidering McDonald v. Chicago” is available online or by calling (602) 462-5000.

The Goldwater Institute is an independent government watchdog supported by people who are committed to expanding free enterprise and liberty.

About the author: Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute’s Dorothy D. and Joseph A. Moller Center for Constitutional Government.


  1. While we’re considering this, what’s Rep Kirkpatrick doing developing another piece of Democratic Party legislation about gun rights?
    She assures us all she’s pro-second amendment, but no one really knows what the legislation is aimed at “fixing.” Like, if it ain’t broke…don’t fix it. But she’s “fixing.”

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