Second Amendment to the United States Constitution in the context of United States v. Cruikshank

In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of the federal government and that the Bill of Rights did not place limitations on the authority of the states and their local governments. However, the post–Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, gave rise to the incorporation of other amendments, applying more rights to the states and people over time. Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation via the Due Process Clause of the Fourteenth Amendment of 1868.

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state, governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

In the United States, the right to keep and bear arms is a fundamental right protected by the Second Amendment to the United States Constitution, part of the Bill of Rights, and by the constitutions of most U.S. states. The Second Amendment declares:

Stemming from English common law tradition, the concept of a right to keep and bear arms was recognized prior to the creation of a written national constitution.

In the context of gun violence in the United States, there are two primary opposing ideologies regarding private firearm ownership: gun control and gun rights.

Advocates of gun control support increasingly restrictive regulations on gun ownership, while proponents of gun rights oppose such restrictions and often support the liberalization of gun ownership. These groups typically differ in their interpretations of the Second Amendment to the United States Constitution, as well as in their views on the role of firearms in public safety, their impact on public health, and their relationship to crime rates at both national and state levels.

In the United States, the right to keep and bear arms is modulated by a variety of state and federal statutes. These laws generally regulate the manufacture, trade, possession, transfer, record keeping, transport, and destruction of firearms, ammunition, and firearms accessories. They are enforced by state, local and the federal agencies which include the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

The private right to keep and bear arms is protected by the Second Amendment of the United States Constitution. This protection became legally explicit when the U.S. Supreme Court ruled in District of Columbia v. Heller (2008) that the Amendment defined and protected an individual right, unconnected with militia service. A subsequent holding in McDonald v. City of Chicago (2010) ruled that the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and thereby applies to state and local laws. In New York State Rifle & Pistol Association, Inc. v. Bruen (2022) the Court struck down New York's may-issue policy of being required to show "proper cause" to be granted a concealed carry license, but allowed states to enforce "shall-issue" permitting where applicants must satisfy certain objective criteria such as passing a background check. It also held that any regulation of firearms in the United States is presumed unconstitutional unless the state can prove it is rooted in the country's text, history, and tradition. In United States v. Rahimi (2024), this test was refined as the Court upheld federal laws restricting gun rights from those accused of domestic violence and said that lower courts should not seek exact comparisons when reviewing the historical tradition but rather look at similar analogues and general principles.