Then, in two successive rulings in 2008 and 2010, the Supreme Court dramatically reversed course. First, in a 5-4 decision in Heller, the Court ruled that, lo and behold, the Second Amendment did protect an individual’s right to bear arms. Scalia, writing for the majority, relied heavily on English legal history and colonial-era texts to outline the Founders’ intent to protect that right. At the same time, he dismissed those who noted that despite this historical record, the Court itself had never before found such a right. “Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods,” he argued. “For most of our history the question did not present itself.”
Heller was a triumph of the gun-rights movement, which spent decades dragging the idea out of the hinterlands of American constitutional thought and into the Supreme Court’s rulings. But despite the fears of some and the hopes of others, the decision was more restrained than it could have been. D.C.’s handgun law was among the strictest in the country, making it an easy target for legal activists but limiting its factual relevance for future challenges to other city and state gun laws. In his opinion for the Court, Scalia also indicated that Heller should not throw most of the nation’s gun laws into chaos.
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
More importantly, the decision only applied to D.C. itself and to the federal government; it would take another ruling to apply it to the states. Two years later, the same 5-4 majority of justices incorporated the Second Amendment to strike down Chicago’s handgun ban in McDonald. Citing the historical record, Justice Samuel Alito wrote that “it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”
Throughout their opinions in McDonald, both sides braced for future legal challenges to gun laws nationwide. Justice John Paul Stevens complained that the Court “unleashed in Heller a tsunami of legal uncertainty,” citing hundreds of Second Amendment challenges filed in the lower courts in the previous two years. Alito countered those fears with the Court’s past reassurances.
We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.
Five justices formed the majorities in Heller and McDonald: Scalia, Thomas, Alito, Justice Anthony Kennedy, and Chief Justice John Roberts. All of them remain on the Court today. The Court does not identify how justices vote when granting or denying certiorari petitions, but four votes are required to grant a case. We can therefore logically conclude that at least two justices from the Heller/McDonald majority have refused to take a single Second Amendment case in the last five years.