second amendment essay ideas

Second Amendment - List of Free Essay Examples And Topic Ideas

An essay on the Second Amendment of the United States Constitution can analyze the historical context, legal interpretations, and contemporary debates surrounding the right to bear arms. It can delve into the arguments for and against gun control, the role of firearms in American culture, and the impact of gun violence on society. We’ve gathered an extensive assortment of free essay samples on the topic of Second Amendment you can find in Papersowl database. You can use our samples for inspiration to write your own essay, research paper, or just to explore a new topic for yourself.

The Second Amendment – Firearm Legislation

Americans are being murdered at unprecedented rates and little action has been attempted to prevent similar events from reoccurring. According to the Centers for Disease Control and Prevention, ninety-six Americans die by firearms every day (The Editorial Board). Ninety-six lives end because of a bullet. It is unethical and immoral for that many people to perish, and for there to be little change made. Unfortunately, legislators can not just simply change firearm laws due to the long-standing and well-respected second […]

Gun Violence and the Second Amendment

According the Cornell Law Studies Institute, 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." The Second Amendment of the constitution is one of the most misunderstood and confusing sentences in the history of America. The 27-word sentence has a partial collectivist ora while still maintaining the individualistic right to keep and bear arms. Before discussing the reasons behind […]

Rights and Responsibilities of U.S. Citizens

United States citizens are some of the richest in the world when it comes to the rights that they are afforded. Along with those rights come responsibilities. The U.S. Constitution and the Declaration of Independence are the foundation upon which these rights and responsibilities were carved. A right is a freedom or privilege that is granted to U.S. citizens by the constitution. A responsibility is a duty or obligation to be able to enjoy those rights. Rights and responsibilities go […]

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Negative Consequences of Second Amendment

In late pasts guns were the only means of survival. The gun was what kept the home front safe from unwanted intruders from invading your land. It was also used to hunt for food to be put on the dinner table. However, today guns, as of late, are being used in the mass killings of innocent lives. Many of those who are caught in the crosshairs of a mass shooters were children and young adults. No amount of blood and […]

Second Amendment in the Bill of Rights

Imagine waiting on the line at the cafeteria on campus and you notice there are people running because there is a gunman firing not too far from where you are located. As a concealed carry license holder, do you reach for you gun realizing it is not there because it is not allowed on campus, or do you run for safety like everyone else? The founding fathers of America gave the right to bear arms for self-defense with the passing […]

The Gun Problem in America

Introduction As stated in the Social Problems textbook, “Social problems: Continuity and change”, “A social problem is any condition or behavior that has negative consequences for large numbers of people and that is generally recognized as a condition or behavior that needs to be addressed” (2015). As a result, I decided to discuss the social problem of the second amendment. Since the founding of the United States of America, the right to bear arms has always been a hot button […]

Supreme Court and the Second Amendment

Heller was a special police officer in Washington D.C. He was allowed to carry a Handgun as part of his job. Wanting to keep a handgun at his home, he applied for a license with the District of Columbia. They denied the request making heller sue the District For violating his second amendment rights. Based on what the second amendment said the District Court Found that the second amendment does not create an individual right to gun ownership Unrelated to […]

Second Amendment Gun Control: Urgent Need for Stricter Laws and Licensing

The 2007 Virginia Tech shooting killed 32. The Orlando nightclub shooting last year killed 49. The 2012 massacre at Sandy Hook Elementary School killed 27 first graders, all younger than six years old. Since the Columbine High School massacre in 1999, not a year has passed without a mass shooting. Yet little has been done to restrict the sale of the very weapons used for these senseless murders. Understanding Gun Control Laws in America Gun Control, at least in America, […]

3d Printed Guns It is Constitutional

Even though this is an incredibly new technology, politicians and even presidents around the globe makers have recognized 3D printed guns and what’s behind it. Regardless of what their actual thoughts are on the topic, the laws that they have tried to put into place that obstructs the progress of the technology has risen the number of questions that deal with it. Questions such as whether or not it is constitutional to make them, distribute them or even use them. […]

Gun Control in the United States

Over the past few decades, the United States has witnessed various high- profile mass shootings in towns including Las Vegas, San Bernardino, Orlando, and Newtown. Even though most homicides receive little public attention, incidents of mass shooting are extremely salient. Gun violence is the primary cause of mass shootings in the US. Victor Hayes attributes increased gun violence to how easily an individual can access a gun in the US and further argues that such ease of accessibility acts as […]

Problems with Gun Control

When a problem arises, people are most likely to asses the situation, find what is causing the complication, and then take actions to exterminate the cause of the problem. In recent years problems with gun control have risen and politicians, in addition to the general public, seem to lack an understanding of the true problem. However, it is undeniable that the rate of gun violence has risen, and many debates have taken place on whether guns should be take away […]

The Crucial Role of the Second Amendment in Preserving Liberty

In the intricate tapestry of American constitutional law, few provisions are as fiercely debated and deeply entrenched in the national consciousness as the Second Amendment. This cornerstone of American jurisprudence, enshrining the right to bear arms, is not merely a legalistic artifact but a living embodiment of the nation's foundational principles and historical narrative. To unravel the significance of the Second Amendment, one must delve into its origins and the broader context of the American experience. Emerging from the crucible […]

A Legal Watershed: Reinterpreting the Second Amendment in District of Columbia V. Heller

In the labyrinthine corridors of American legal history, few cases have elicited as much fervor and contention as District of Columbia v. Heller. Presented before the highest echelons of the United States Supreme Court in 2008, this seminal case grappled with the constitutionality of a District of Columbia statute that effectively proscribed handgun ownership by imposing stringent registration requirements and outright bans on certain firearms. Central to the case was the overarching query: does the Second Amendment enshrine an individual's […]

The Second Amendment: the Essence of ‘Well-Regulated Militia

Let's talk about a phrase that's been batted around more than a ball at a baseball game: "well-regulated militia." It's one of those terms that feels like it's been pulled straight out of a history textbook, yet here we are, still debating its meaning in coffee shops, courtrooms, and online forums. The Second Amendment of the United States Constitution is its home, a place where it sits snugly between discussions of individual rights and collective security. But what's it really […]

DC V. Heller: a Landmark Decision in American Second Amendment Rights

In the annals of American jurisprudence, few cases have sparked as much debate and legal scrutiny as District of Columbia v. Heller. Decided in 2008, this landmark Supreme Court decision unequivocally altered the landscape of Second Amendment rights, marking a significant shift in the interpretation of the Constitution's provision on the right to bear arms. At its heart, the case revolved around Dick Heller, a licensed special police officer in Washington D.C., who challenged the district's handgun ban as unconstitutional […]

Deciphering the Core of the 2nd Amendment: Unveiling its Complex Layers

Embarking on an odyssey through the annals of American constitutional jurisprudence, the Second Amendment emerges as a captivating enigma, a succinct phrase laden with profound implications. Nestled within the hallowed precincts of the Bill of Rights, this venerable clause has ignited a veritable tempest of discourse, provoking an array of divergent perspectives and interpretations. Let's embark on an expedition into the heart of this constitutional labyrinth to unravel the true essence of what the Second Amendment proclaims. The Second Amendment, […]

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The 'scope' of the argument: Why the Second Amendment matters

The U.S. Constitution's guarantee of the right to bear arms has been a primary conversation topic among Americans in 2020. As uncertainty and fear have plagued the world over the last eight months, there has been a surge in gun sales nationwide — many of them to first-time owners.

Austin and Danielle, one young couple in Utah, had always talked about owning a firearm. Austin grew up in a city where gun ownership was less common, but Danielle grew up in a small town where gun ownership was normal. They both said the events of 2020 lead them to buy a firearm.

“We always talked about having a gun,' Austin said. 'I thought they were probably important to have for self-defense. Once COVID-19 hit , it made getting one feel like an important purchase to make.”

The couple bought their gun in early April. While they believe in gun ownership, they wanted to keep their last name anonymous to avoid the negative stigma some associate with gun owners.

“I feel like a lot of people have a mental image of gun owners as uneducated or having low IQs,' Danielle said. 'I do feel like most gun owners are responsible and only want them for recreation and self-defense purposes, but some people think they are hillbillies.”

The two cited the case of the Orem wildfires in mid-October, which were caused by target practice at a local gun range. They also mentioned a few other reasons they didn't want to be labeled as 'gun owners.'

“We wanted to remain anonymous because we didn’t want to be targeted for our political beliefs or because we choose to own a gun,' Austin said. 'Remaining anonymous is a safe choice. That’s the reason I bought a gun — it’s something to protect my family and keep us safe.”

While some Americans have sought to restrict gun ownership, for many others it is a cherished right they work to protect. According to The New York Times , demand for guns has surged since the start of the pandemic in March and hasn’t let up all year. The National Instant Criminal Background Check System (NICS) recorded an estimated 28 million background checks were requested from January to the end of September.

Jeffrey Denning, a Salt Lake City Police detective, teaches firearm safety classes to private parties. He has seen a dramatic increase in people wanting to exercise their Second Amendment rights.

“One gun store owner I talked to said the day after the Utah earthquake on March 13th, he received the most sales he had ever gotten,” Denning said. “After that, sales started going through the roof. The numbers are off the charts.”

According to the data reported by the NICS, the first spike (3.7 million background checks) in firearm demand happened in March likely because of the pandemic. The second spike (3.9 million background checks) was larger and occurred in June — right after acts of civil unrest began in major American cities.

“ People should be able to protect themselves individually and collectively,” Denning said. “We should be able to preserve our freedoms — this lets us have agency and a land of liberty.”

Denning said that while firearms are certainly good for personal protection, the reason the Second Amendment is considered a right is more complex than that.

“The Second Amendment was included in the Constitution so the government could not take over,” Denning said. 'It’s to serve against government encroachments. The amendments were developed because of what the founding fathers saw in other parts of the world.”

Most historians agree that this was the premise of the Second Amendment. But some people have grown increasingly wary of the potential dangers of an armed population. Because of this fear, there has been heated debate in recent years over whether to update or reform the Second Amendment.

Lucy Williams, an assistant professor of political philosophy, said the conflict was most pronounced in the 2008 Supreme Court case D.C. v. Heller.

“For some time, there was a debate about whether the prefatory clause ‘A well-regulated Militia being necessary to the security of a free State’ was intended to limit the right to bear arms or if it merely explained why the right is important,” Williams said. “The debate is now largely settled.”

Williams said reformers proposed that the Constitution only protects a right to bear arms in relation to military service. People who took the other position argued the right was not connected to military service. The Supreme Court sided with the latter position.

After this Supreme Court decision, it seems that the debate has shifted. Instead of asking whether individuals should be allowed to have firearms, the debate is focused on whether the government has the ability to regulate and restrict specific weapons from entering the public sphere.

This threat of potential regulation has made some Americans nervous, and conservative politicians say the Second Amendment is under attack, or will be eliminated because of their political opponents. Williams said this is not likely.

“Although the scope of (the Second Amendment) may change, it’s hard to imagine that the right could ever be eliminated entirely,” Williams said.

Though reform may happen in the future, more people are making use of their Second Amendment right. Background checks, first-time gun purchases and training classes are increasing in demand. It remains to be seen whether gun sales will trend downward anytime soon.

“If you haven’t had a gun in 70 years, and are only interested in one because you’re scared, there is no reason to buy one now,” Denning said. “You are going to be fine.”

Despite this, Denning said individuals who have considered buying a gun and want to educate themselves should do so.

“It’s ignorant and foolish not to have a plan for preparation and protection,” Denning said. “You can think all day long that something won’t happen ‘here’ or ‘to you’ but if it does, you’re not going to be prepared.”

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Second amendment - Free Essay Examples and Topic Ideas

The Second Amendment of the United States Constitution is part of the Bill of Rights and guarantees the right of American citizens to bear arms. It was adopted on December 15, 1791, and has been the subject of much debate and controversy. Advocates of gun rights argue that the Second Amendment protects their individual right to own firearms for self-protection, hunting, and recreational purposes. Critics argue that it has been interpreted too broadly and contributes to gun violence and mass shootings in the USA.

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Essays on Second Amendment

In essence, second Amendment states that, "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." Our nation’s fathers trusted that owning firearm was fundamental to the dignity and the character of a free...

Words: 1314

The Constitution of the United States of America came into force in 1789. At 229 years old, it is arguably the oldest Constitution still in use in the world today. Despite being the supreme law of the land, the sovereign power remains vested in the people of the United States...

Words: 1745

Guns in America There about 393, 347,000 guns in supply in the United States. It means that every 3 out of ten people own firearms. About 22% of the citizens have at least one or more guns. Americans have complex relationships and deep history with guns. It is a point of...

Words: 1682

In the recent past, the second amendment sparked an intense debate in the United States of America. The debate was about whether individuals or the local, state or federal legislative bodies have the rights to own firearms. This forced the Supreme Court to make a ruling and determine the right...

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The District of Columbia v Heller ruling on 26 June 2008 marked a landmark decision on the gun debate (Burkett, 2008). The Supreme Court said that a District of Columbia law that banned the ownership of usable firearms in a household was illegal because it violated the Second Amendment (Burkett,...

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Historically, how one interprets the legislation itself determines the second amendment's meaning. The amendment has generated debates because different people and cases have given it various interpretations. The second amendment is inscribed on the National Rifle Association's building, but the amendment's militia provision is not present. Therefore, they assert that...

Words: 1209

The Second Amendment and Its Importance The second amendment focused on the protection of all Americans’ rights, particularly the right to self-defense. This is where the laws governing the possession and use of firearms come into play. The amendment also addresses the right to own and use arms, and it went...

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The Second Amendment of the United States Constitution The Second Amendment of the United States Constitution, ratified in 1789, protects an individual right to own a firearm for self-defense. It is one of the ten constitutional amendments that collectively form the Bill of Rights, which were passed to protect the citizens...

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The first amendment, interpretation & debate, the second amendment, matters of debate, common interpretation, the reasonable right to bear arms, not a second class right: the second amendment today.

by Nelson Lund

University Professor at George Mason University University Antonin Scalia School of Law

by Adam Winkler

Professor of Law at University of California Los Angeles Law School

Modern debates about the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard. This question, however, was not even raised until long after the Bill of Rights was adopted.

Many in the Founding generation believed that governments are prone to use soldiers to oppress the people. English history suggested that this risk could be controlled by permitting the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or other emergencies, the government could rely on a militia that consisted of ordinary civilians who supplied their own weapons and received some part-time, unpaid military training.

The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

Much has changed since 1791. The traditional militia fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nation’s military establishment has become enormously more powerful than eighteenth century armies. We still hear political rhetoric about federal tyranny, but most Americans do not fear the nation’s armed forces and virtually no one thinks that an armed populace could defeat those forces in battle. Furthermore, eighteenth century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those generally thought appropriate for civilian uses. Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).

The law has also changed. While states in the Founding era regulated guns—blacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rolls—gun laws today are more extensive and controversial. Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. Although there is substantial evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to protect the right of individuals to keep and bear arms from infringement by the states, the Supreme Court rejected this interpretation in United States v. Cruikshank (1876).

Until recently, the judiciary treated the Second Amendment almost as a dead letter. In District of Columbia v. Heller (2008), however, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nation’s capital. A 5–4 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.

The dissenters disagreed. They concluded that the Second Amendment protects a nominally individual right, though one that protects only “the right of the people of each of the several States to maintain a well-regulated militia.” They also argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.

Two years later, in McDonald v. City of Chicago (2010), the Court struck down a similar handgun ban at the state level, again by a 5–4 vote. Four Justices relied on judicial precedents under the Fourteenth Amendment’s Due Process Clause. Justice Thomas rejected those precedents in favor of reliance on the Privileges or Immunities Clause, but all five members of the majority concluded that the Fourteenth Amendment protects against state infringement of the same individual right that is protected from federal infringement by the Second Amendment.

Notwithstanding the lengthy opinions in Heller and McDonald , they technically ruled only that government may not ban the possession of handguns by civilians in their homes. Heller tentatively suggested a list of “presumptively lawful” regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in “sensitive places” such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.” Many issues remain open, and the lower courts have disagreed with one another about some of them, including important questions involving restrictions on carrying weapons in public.

Gun control is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a “well regulated Militia,” suggests as much. As the Supreme Court correctly noted in District of Columbia v. Heller (2008), the militia of the founding era was the body of ordinary citizens capable of taking up arms to defend the nation. While the Founders sought to protect the citizenry from being disarmed entirely, they did not wish to prevent government from adopting reasonable regulations of guns and gun owners.

Although Americans today often think that gun control is a modern invention, the Founding era had laws regulating the armed citizenry. There were laws designed to ensure an effective militia, such as laws requiring armed citizens to appear at mandatory musters where their guns would be inspected. Governments also compiled registries of civilian-owned guns appropriate for militia service, sometimes conducting door-to-door surveys. The Founders had broad bans on gun possession by people deemed untrustworthy, including slaves and loyalists. The Founders even had laws requiring people to have guns appropriate for militia service.

The wide range of Founding-era laws suggests that the Founders understood gun rights quite differently from many people today. The right to keep and bear arms was not a libertarian license for anyone to have any kind of ordinary firearm, anywhere they wanted. Nor did the Second Amendment protect a right to revolt against a tyrannical government. The Second Amendment was about ensuring public safety, and nothing in its language was thought to prevent what would be seen today as quite burdensome forms of regulation.   

The Founding-era laws indicate why the First Amendment is not a good analogy to the Second. While there have always been laws restricting perjury and fraud by the spoken word, such speech was not thought to be part of the freedom of speech. The Second Amendment, by contrast, unambiguously recognizes that the armed citizenry must be regulated—and regulated “well.” This language most closely aligns with the Fourth Amendment, which protects a right to privacy but also recognizes the authority of the government to conduct reasonable searches and seizures. 

The principle that reasonable regulations are consistent with the Second Amendment has been affirmed throughout American history. Ever since the first cases challenging gun controls for violating the Second Amendment or similar provisions in state constitutions, courts have repeatedly held that “reasonable” gun laws—those that don’t completely deny access to guns by law-abiding people—are constitutionally permissible. For 150 years, this was the settled law of the land—until Heller .

Heller , however, rejected the principle of reasonableness only in name, not in practice. The decision insisted that many types of gun control laws are presumptively lawful, including bans on possession of firearms by felons and the mentally ill, bans on concealed carry, bans on dangerous and unusual weapons, restrictions on guns in sensitive places like schools and government buildings, and commercial sale restrictions. Nearly all gun control laws today fit within these exceptions. Importantly, these exceptions for modern-day gun laws unheard of in the Founding era also show that lawmakers are not limited to the types of gun control in place at the time of the Second Amendment’s ratification.

In the years since Heller , the federal courts have upheld the overwhelming majority of gun control laws challenged under the Second Amendment. Bans on assault weapons have been consistently upheld, as have restrictions on gun magazines that hold more than a minimum number of rounds of ammunition. Bans on guns in national parks, post offices, bars, and college campuses also survived. These decisions make clear that lawmakers have wide leeway to restrict guns to promote public safety so long as the basic right of law-abiding people to have a gun for self-defense is preserved.

Perhaps the biggest open question after Heller is whether the Second Amendment protects a right to carry guns in public. While every state allows public carry, some states restrict that right to people who can show a special reason to have a gun on the street. To the extent these laws give local law enforcement unfettered discretion over who can carry, they are problematic. At the same time, however, many constitutional rights are far more limited in public than in the home. Parades can be required to have a permit, the police have broader powers to search pedestrians and motorists than private homes, and sexual intimacy in public places can be completely prohibited. 

The Supreme Court may yet decide that more stringent limits on gun control are required under the Second Amendment. Such a decision, however, would be contrary to the text, history, and tradition of the right to keep and bear arms.

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If that’s enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Court’s specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

The Second Amendment also raises issues about which reasonable people can disagree. But if the Supreme Court takes this provision of the Constitution as seriously as it now takes the First Amendment, which it should do, there will be some easy issues as well.

•           District of Columbia v. Heller (2008) is one example. The “right of the people” protected by the Second Amendment is an individual right, just like the “right[s] of the people” protected by the First and Fourth Amendments. The Constitution does not say that the Second Amendment protects a right of the states or a right of the militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.

•           McDonald v. City of Chicago (2010) was also an easy case under the Court’s precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are “deeply rooted in this Nation’s history and tradition.” The right to keep and bear arms clearly meets this test.

•           The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The courts should invalidate regulations that prevent law-abiding citizens from carrying weapons in public, where the vast majority of violent crimes occur. First Amendment rights are not confined to the home, and neither are those protected by the Second Amendment.

•           Nor should the government be allowed to create burdensome bureaucratic obstacles designed to frustrate the exercise of Second Amendment rights. The courts are vigilant in preventing government from evading the First Amendment through regulations that indirectly abridge free speech rights by making them difficult to exercise. Courts should exercise the same vigilance in protecting Second Amendment rights.

•           Some other regulations that may appear innocuous should be struck down because they are little more than political stunts. Popular bans on so-called “assault rifles,” for example, define this class of guns in terms of cosmetic features, leaving functionally identical semi-automatic rifles to circulate freely. This is unconstitutional for the same reason that it would violate the First Amendment to ban words that have a French etymology, or to require that French fries be called “freedom fries.”

In most American states, including many with large urban population centers, responsible adults have easy access to ordinary firearms, and they are permitted to carry them in public. Experience has shown that these policies do not lead to increased levels of violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, prevent countless crimes and have saved many lives. What’s more, the most vulnerable people—including women, the elderly, and those who live in high crime neighborhoods—are among the greatest beneficiaries of the Second Amendment. If the courts require the remaining jurisdictions to stop infringing on the constitutional right to keep and bear arms, their citizens will be more free and probably safer as well.

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Discussing Controversial Topics: The Second Amendment

In July of 2012, a g

Bill of Rights Institute Resources

• The United States Constitution
• The United States Bill of Rights
• District of Columbia v. Heller (2008)
• McDonald v. Chicago (2010)

News Resources

• Temple massacre has some Sikhs mulling gun ownership , FOX News
• Candidates show little appetite for new gun control laws , CNN
• Gunman Dies After Killing at Empire State Building , New York Times

Ac tivity/How to Use

• What right does the Second Amendment protect?
• No right in the Bill of Rights is considered absolute. What limits on firearms has the Supreme Court ruled are constitutional? What limits on firearms do you believe are constitutional?
• One group should prepare to argue that high profile shootings are reasons to increase gun control.
• The other should prepare to argue that high profile shootings are reasons to loosen restrictions on firearms.
• Speak courteously: No raised voices or insults.
• Listen courteously: No interruptions.
• Argue authoritatively: Use primary sources to support reasoning.
• Distribute “Questions to Consider” to help students prepare their data and arguments. The teacher may add additional questions during the debate to help clarify or extend arguments.
• Students will have to think about why they are for or against increasing or decreasing gun control.
• Students should use primary sources and facts to support their argument.
• Students should think about why the opposing group believes what they believe and be able to respond to that argument.
• Alternate which team answers the questions first.
• Allow students from the opposing group to ask clarifying questions if necessary.
• Give each group a time limit on each question to keep the debate moving.

Questions to Consider

What right does the Second Amendment to the Constitution protect?  Do you think this protection is necessary? Why or why not? Why did the Founders include the Second Amendment in the Bill of Rights?  Do you think that their reasons are still valid today? Why or why not? What has the Supreme Court ruled about the meaning of the Second Amendment? Do you agree with their reasoning and conclusions? What types of restrictions have local and state governments put on weapons?  What laws have local and state governments proposed?  Do you support or oppose these restrictions?  Explain. What laws would you propose regarding gun control?  How do you think the public would react to your ideas?  Why do you think gun control is controversial? During the Empire State Building shooting, it is believed that police officers fired shots at the accused shooter and accidentally wounded nine bystanders.  A grand jury is now reviewing evidence in this case to determine whether the officers should stand charges.  How does this knowledge impact your understanding of the Second Amendment?  How does it impact your opinion on gun control regulations?

• After the debate, students should think about what they learned from reading the articles and debating on the the topic.  They should write a brief essay explaining what they learned and if their opinion changed after thinking about the issue.
• Students should research laws regarding guns in your state or community and then write a brief essay explaining one of the laws.  Examples may include limits on sale or ownership of certain weapons, concealed carry requirements, limits on gun purchases, or others. Their essay should include reasons the law was proposed or passed, what the final vote on the law was, and how the community reacted to the law.

Related Content

The Constitution

The Constitution was written in the summer of 1787 in Philadelphia, Pennsylvania, by delegates from 12 states, in order to replace the Articles of Confederation with a new form of government. It created a federal system with a national government composed of 3 separated powers, and included both reserved and concurrent powers of states.

Bill of Rights: The 1st Ten Amendments

The first 10 amendments to the Constitution make up the Bill of Rights. James Madison wrote the amendments, which list specific prohibitions on governmental power, in response to calls from several states for greater constitutional protection for individual liberties.

McDonald v. Chicago | Homework Help from the Bill of Rights Institute

Does the Second Amendment prevent a city from effectively outlawing handgun ownership? In 2008, Otis McDonald attempted to purchase a handgun for self-defense purposes in a Chicago suburb. However, the city of Chicago had banned handgun ownership in 1982 when it passed a law that prevented issuing handgun registrations. McDonald argued this law violated the Fourteenth Amendment’s Privileges and Immunities Clause as well as the Due Process Clause. In a 5-4 decision, the Court ruled that McDonald’s Second Amendment right to bear arms was protected at the state and local level by the Due Process Clause of the Fourteenth Amendment.

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The Second Amendment in The United States

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Second Amendment

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

The Second Amendment, often referred to as the right to bear arms, is one of 10 amendments that form the Bill of Rights, ratified in 1791 by the U.S. Congress. Differing interpretations of the amendment have fueled a long-running debate over gun control legislation and the rights of individual citizens to buy, own and carry firearms.

Right to Bear Arms

The text of the Second Amendment reads in full: “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 framers of the Bill of Rights adapted the wording of the amendment from nearly identical clauses in some of the original 13 state constitutions.

During the Revolutionary War era, “militia” referred to groups of men who banded together to protect their communities, towns, colonies and eventually states, once the United States declared its independence from Great Britain in 1776.

Many people in America at the time believed governments used soldiers to oppress the people, and thought the federal government should only be allowed to raise armies (with full-time, paid soldiers) when facing foreign adversaries. For all other purposes, they believed, it should turn to part-time militias, or ordinary civilians using their own weapons.

State Militias

But as militias had proved insufficient against the British, the Constitutional Convention gave the new federal government the power to establish a standing army, even in peacetime.

However, opponents of a strong central government (known as Anti-Federalists) argued that this federal army deprived states of their ability to defend themselves against oppression. They feared that Congress might abuse its constitutional power of “organizing, arming and disciplining the Militia” by failing to keep militiamen equipped with adequate arms.

So, shortly after the U.S. Constitution was officially ratified, James Madison proposed the Second Amendment as a way to empower these state militias. While the Second Amendment did not answer the broader Anti-Federalist concern that the federal government had too much power, it did establish the principle (held by both Federalists and their opponents) that the government did not have the authority to disarm citizens.

Well-Regulated Militia

Practically since its ratification, Americans have debated the meaning of the Second Amendment, with vehement arguments being made on both sides.

The crux of the debate is whether the amendment protects the right of private individuals to keep and bear arms, or whether it instead protects a collective right that should be exercised only through formal militia units.

Those who argue it is a collective right point to the “well-regulated Militia” clause in the Second Amendment. They argue that the right to bear arms should be given only to organized groups, like the National Guard, a reserve military force that replaced the state militias after the Civil War .

On the other side are those who argue that the Second Amendment gives all citizens, not just militias, the right to own guns in order to protect themselves. The National Rifle Association (NRA) , founded in 1871, and its supporters have been the most visible proponents of this argument, and have pursued a vigorous campaign against gun control measures at the local, state and federal levels.

Those who support stricter gun control legislation have argued that limits are necessary on gun ownership, including who can own them, where they can be carried and what type of guns should be available for purchase.

Congress passed one of the most high-profile federal gun control efforts, the so-called Brady Bill , in the 1990s, largely thanks to the efforts of former White House Press Secretary James S. Brady, who had been shot in the head during an assassination attempt on President Ronald Reagan in 1981.

District of Columbia v. Heller

Since the passage of the Brady Handgun Violence Prevention Act, which mandated background checks for gun purchases from licensed dealers, the debate on gun control has changed dramatically.

This is partially due to the actions of the Supreme Court , which departed from its past stance on the Second Amendment with its verdicts in two major cases, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).

For a long time, the federal judiciary held the opinion that the Second Amendment remained among the few provisions of the Bill of Rights that did not fall under the due process clause of the 14th Amendment , which would thereby apply its limitations to state governments. For example, in the 1886 case Presser v. Illinois , the Court held that the Second Amendment applied only to the federal government, and did not prohibit state governments from regulating an individual’s ownership or use of guns.

But in its 5-4 decision in District of Columbia v. Heller , which invalidated a federal law barring nearly all civilians from possessing guns in the District of Columbia, the Supreme Court extended Second Amendment protection to individuals in federal (non-state) enclaves.

Writing the majority decision in that case, Justice Antonin Scalia lent the Court’s weight to the idea that the Second Amendment protects the right of individual private gun ownership for self-defense purposes.

McDonald v. Chicago

Two years later, in McDonald v. Chicago , the Supreme Court struck down (also in a 5-4 decision) a similar citywide handgun ban, ruling that the Second Amendment applies to the states as well as to the federal government.

In the majority ruling in that case, Justice Samuel Alito wrote: “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller , we held that individual self-defense is ‘the central component’ of the Second Amendment right.”

Gun Control Debate

The Supreme Court’s narrow rulings in the Heller and McDonald cases left open many key issues in the gun control debate.

In the Heller decision, the Court suggested a list of “presumptively lawful” regulations, including bans on possession of firearms by felons and the mentally ill; bans on carrying arms in schools and government buildings; restrictions on gun sales; bans on the concealed carrying of weapons; and generally bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.”

Mass Shootings

Since that verdict, as lower courts battle back and forth on cases involving such restrictions, the public debate over Second Amendment rights and gun control remains very much open, even as mass shootings became an increasingly frequent occurrence in American life.

To take just three examples, the Columbine Shooting , where two teens killed 13 people at Columbine High School, prompted a national gun control debate. The Sandy Hook shooting of 20 children and six staff members at the Sandy Hook Elementary School in Newtown, Connecticut in 2012 led President Barack Obama and many others to call for tighter background checks and a renewed ban on assault weapons.

And in 2017, the mass shooting at country music concert in Las Vegas in which 60 people died (to date the largest mass shooting in U.S. history, overtaking the 2016 attack on the Pulse nightclub in Orlando, Florida ) inspired calls to restrict sales of “bump stocks,” attachments that enable semiautomatic weapons to fire faster.

On the other side of the ongoing debate of gun control measures are the NRA and other gun rights supporters, powerful and vocal groups that views such restrictions as an unacceptable violation of their Second Amendment rights.

Bill of Rights, The Oxford Guide to the United States Government . Jack Rakove, ed. The Annotated U.S. Constitution and Declaration of Independence. Amendment II, National Constitution Center . The Second Amendment and the Right to Bear Arms, LiveScience . Second Amendment, Legal Information Institute .

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JD Vance and Tim Walz claim to be 2nd Amendment stalwarts. But where do the VP picks really stand on guns?

"The choice is clear," said Gen Z voter Timberlyn Mazeikis.

Sen. JD Vance and Gov. Tim Walz both claim to be champions of gun rights for law-abiding citizens and have touted personal stories of growing up in households where firearms were commonplace, but the vice presidential candidates have vastly different views on how to curb America's gun violence epidemic .

As the Democratic National Convention begins Monday in Chicago, Vice President Kamala Harris has made gun control a top priority.

"We who believe that every person should have the freedom to live safe from the terror of gun violence, will finally pass red flag laws, universal background checks and an assault weapons ban," Harris said at her first presidential campaign rally in Milwaukee.

Harris was appointed in September 2023 by President Joe Biden to oversee the first-ever White House Office of Gun Violence Prevention.

Meanwhile, there was little acknowledgment of the nation's gun violence scourge at the Republican National Convention last month, despite GOP presidential nominee former President Donald Trump being the victim of a would-be assassin wielding an AR-15-style rifle.

In the 2024 GOP convention platform, there was no mention of firearm violence or gun control, while in 2020, the party's platform contained three paragraphs supporting reciprocity legislation allowing Americans to carry firearms in all 50 states regardless of which state they received a carry permit, and opposing an assault weapons ban, "frivolous" lawsuits against gun manufacturers and "any effort to deprive individuals of their right to keep and bear arms without due process of law."

While Harris and Trump's polarizing stances on gun control are well documented, the positions of their running mates are emerging for the first time on a national level.

Vance, the 40-year-old Ohio U.S. senator and Marine veteran, and Walz, the 60-year-old Minnesota governor and Army National Guard veteran, have portrayed themselves as strong Second Amendment advocates. But they have voiced starkly different views on gun control.

Vance's stand on gun control

"I'm a big pro-Second Amendment guy and I know a lot of people who will strongly, stridently defend the Second Amendment. None of them think convicted felons, who have been afforded their due process rights should be able to buy firearms and then kill people," Vance said during a June 2022 U.S. Senate election debate against his Democratic opponent, former Ohio Rep. Tim Ryan.

In a 2022 federal candidate survey for the Ohio Gun Owners and the American Firearms Association, Vance said he opposes "red flag" gun laws, legislation to ban certain semiautomatic rifles, including AR-15s; supports abolishing the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and establishing a national stand-your-ground law giving individuals the right to use reasonable force, including deadly force, to protect themselves.

Vance also checked yes on voting to repeal the 1994 Gun-Free Schools Act and supported a national Second Amendment Preservation Act that prohibits the use of federal funds to enforce gun control laws, regulations and executive orders.

"We need to fix the system we have that has problems as opposed to layering on a bunch of new regulations and laws on top of it," Vance said during the debate against Ryan. "The thing that I don't like is when you create a new background check system with new sets of regulations that go after law-abiding citizens."

The National Rifle Association -- which according to OpenSecrets , a nonprofit research and government transparency group that tracks money in politics and its effect on elections and policy -- contributed nearly $500,000 to Vance's senate campaign. The NRA has also endorsed the Trump-Vance ticket.

"Now, more than ever, freedom and liberty need courageous and virtuous defenders," Doug Hamlin, executive vice president and CEO of the NRA, said in a statement in July. "President Trump and Senator Vance have the guts and the grit to stand steadfast for the Second Amendment."

In June 2024, Vance called efforts by Senate Majority Leader Chuck Schumer to ban bump stocks, a device that enables semiautomatic rifles to fire almost like machine guns, a "huge distraction."

The gunman who committed the 2017 mass shooting at the Route 91 Harvest Festival concert in Las Vegas that killed 58 people and left more than 800 injured, used guns fitted with bump stocks, according to investigators.

"I think that we have to ask ourselves: 'What is the real gun violence problem in this country?' and are we legislating in a way that solves fake problems? Or solves real problems?" Vance told reporters in June as his name was then being floated as Trump's running mate. "And my very strong suspicion is that the Schumer legislation is aimed at a PR problem, not something that's going to meaningfully reduce gun violence in this country."

While he wasn't a member of the U.S. Senate at the time, Vance said he would have voted against the Bipartisan Safer Communities Act , the first major gun safety law enacted in 30 years that Biden signed in June 2022, about a month after a teenage gunman killed 19 students and two teachers at Robb Elementary School in Uvalde, Texas.

The law enhances background checks for gun buyers under 21, closes the so-called "boyfriend loophole" to prevent people convicted of domestic abuse from purchasing guns, and allocates $750 million to help states implement "red flag laws" to remove firearms from people deemed to be dangerous to themselves and others.

"First of all, from what I've seen of this bill, I would not support it. I think red flag laws, in particular, they certainly are a slippery slope. They also don't solve the problem of gun violence," Vance said in a 2022 interview with the Breitbart News Daily podcast.

During his RNC acceptance speech, Vance -- author of the bestselling memoir "Hillbilly Elegy" -- told the story of how after the death of his beloved grandmother, whom he called Mamaw, his family found 19 loaded guns in her house.

"The thing is, they were stashed all over her house -- under her bed, in her closet, in the silverware drawer, and we wondered what was going on," Vance said. "It occurred to us that toward the end of her life, Mamaw couldn't get around so well, so she was sure that no matter where she was, she was within arm's length of whatever she needed to protect her family. That's who we fight for. That's the American spirit."

Walz's stand on gun control

Walz, a former high school geography teacher and football coach, has proudly proclaimed being an avid hunter who once received an A-rating and an endorsement from the National Rifle Association while a five-term Congressman from rural Minnesota. As a member of Congress, Walz sponsored the Sportsman's Heritage and Recreational Enhancement Act, which expanded access to public lands for hunting and supported legislation to reform the ATF.

"I'm proud to stand with the NRA to protect our Second Amendment rights, and I'm truly grateful for their endorsement," Walz said in a 2010 statement.

In 2016, Guns & Ammo magazine praised Walz's record on protecting gun rights and put him on a list of top 20 politicians for gun owners.

"While most congressional Democrats have jumped on the gun control train with both feet, Tim Walz and a few others have stuck to their guns," Guns & Ammo wrote.

But Walz said his NRA rating fell to an F-rating when his stance on gun control dramatically changed following the Feb. 14, 2018, mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, that left 15 students and two adults, including a football coach, dead.

"My job today is to be dad to a 17-year-old daughter," Walz said during a 2018 community meeting in Minnesota while running for governor in the aftermath of the Parkland massacre. "Hope woke up as many of you did five weeks ago and said, 'Dad, you're the only person I know who's in elected office. You need to stop what's happening with this.'"

In an editorial he wrote that was published in the Minneapolis Star Tribune in February 2018 -- which was titled "Tim Walz: Please understand my full record on guns'' -- Walz explained how the Parkland shooting forced him to reevaluate his positions on gun control.

"We all put ourselves in the place of a loved one or someone who faced that terror. It hits me as the dad of a fifth-grader and a high-school student. It hits me as a former high school geography teacher and football coach, when I think about the geography teacher and the coach at that school who gave their lives so that their students could keep theirs."

Walz said he donated the $18,000 campaign contribution he received in his 2018 gubernatorial run from the NRA, to a charity that helps families of military personnel killed or injured while serving and came out in favor of an assault weapons ban.

In a Star Tribune editorial, he also said that during his time in Congress, he supported "common-sense" gun-control reform laws, repeatedly voted in favor of universal background checks and preventing people on no-fly lists from purchasing firearms. He also said he supported legislation to fund gun violence research by the Centers for Disease Control and Prevention, was a co-sponsor of a bill to ban bump stocks and voted against concealed-carry reciprocity.

Walz also confronted the NRA, writing in the editorial that the organization is "the biggest single obstacle to passing the most basic measures to prevent gun violence in America -- including common-sense solutions that the majority of NRA members support."

As governor, Walz signed in May 2023 a historic suite of gun-safety measures that created red flag laws, extended the waiting period for gun transfers between parties from 7 to 10 days and expanded background checks to include private purchases between individuals, including those made at gun shows. The laws also require anyone buying a pistol or "semiautomatic military-style assault weapons" to apply for a permit to purchase or carry such guns from their local police agency or sheriff's department.

"As a veteran, gun-owner, hunter, and dad, I know basic gun safety isn't a threat to the Second Amendment -- it's about keeping our kids safe," Walz said during a ceremony to sign the gun legislation. "There's no place for weapons of war in our schools, churches, banks, or anywhere else people are just trying to live their lives. Today is about taking meaningful action to create a safer future for our kids, and I am proud to sign this commonsense, life-saving legislation into law."

'The number one killer of our generation'

Timberlyn Mazeikis, who endured a Feb. 13, 2023, mass shooting at Michigan State University that left three of her classmates dead and five others injured, told ABC News that for her and many other Gen Z members the choice in this election "is simple."

"Gun violence is the leading cause of death in our generation, and for a lot of us, we can no longer sit by and continue to watch this happen and just wait for the next massacre to occur. Because of that, we are showing up to vote," said 21-year-old Mazeikis, now a senior at the University of Minnesota Twin Cities.

Mazeikis, who will be voting in her first presidential election in November, said the MSU mass shooting "took a toll on me" as she recounted being barricaded in the school gym for hours, terrified that the shooter would burst through the doors at any minute.

After the shooting, she became a volunteer leader for Students Demand Action, an organization that fights for gun control legislation.

"I felt that I could no longer sit back and watch as further communities were destroyed by gun violence," Mazeikis said. "And that experience of being on campus and the fear that I felt that day and losing my classmates and my sense of security has really worked as a catalyst to push me in this movement and to realize that we can no longer live this way."

She said that while she views Trump and Vance as a "gun extremist dream ticket," she said Harris and Walz have given her "hope."

"The choice is simple. Our lives are on the line," Mazeikis said. "We either go back with Trump and Vance or we go forward with Harris and Walz."

Mazeikis also said Walz's transformation from a strong pro-gun politician into one who now favors sensible gun regulations doesn't concern her, saying, "his stance on gun violence prevention is one of strength and one of courage to change."

"He is living proof that the gun lobby and the gun industry are lying to us, that you can be a responsible gun owner and still want to keep your community safe and believe in gun safety," Mazeikis said.

However, Rob Doar, vice president of the Minnesota Gun Owners Caucus -- the largest gun rights group in Minnesota with more than 10,000 dues-paying members -- told ABC News that he's been following Walz's policies and actions on guns for about a decade and was surprised he was picked to be Harris' running mate.

MORE: US surpasses 400 mass shootings so far in 2023: National gun violence website

"Initially, my thought was that it was not a good pick if the goal of the campaign was to try to appeal to maybe disaffected Republicans and moderates, just because he has had some flip-flopping on contentious issues like firearms," Doar said. "But then as I saw more of the campaign strategy roll out, it seems like the goal has been to more highlight him as an example of what progressive leaders can do. In that vein, I think that he's probably serving the campaign very well, given the high number of progressive policies that Minnesota's passed recently."

Doar said his organization does not endorse presidential candidates and noted that his members don't necessarily like Trump.

MORE: US stats show violent crime dramatically falling, so why is there a rising clash with perception?

"I think both tickets have problematic histories as far as a Second Amendment standpoint goes. Donald Trump was a huge advocate for the bump stock ban. Donald Trump made quotes like, 'to take the guns first and then get due process second,' and he's made some other statements that have been fairly anti-Second Amendment," Doar said. "On the other hand, you've got Kamala Harris, who is talking about, initially, mandatory gun buybacks for certain types of firearms. She has walked that back a little bit, but I think both tickets, as far as somebody who looks at the Second Amendment as their primary issue at the polls, have some problems."

He said Vance's "posturing" on gun rights is something a lot of Second Amendment supporters like.

"But these are the same kind of things that we heard out of Tim Walz when he was a representative in the first district [of Minnesota]," Doar said. "Unfortunately, JD Vance just doesn't have the longevity of a political career to be able to back up the words that he's saying, but I do think the way that he's positioning himself is a way that might appeal to those who value the Second Amendment when they go to the polls."

He said many of his group's members have expressed concern about keeping the current conservative majority of the Supreme Court intact.

"I do hear a lot from our members that they don't like Trump, but the sole reason they're voting for him is because of the Supreme Court and for federal judicial nominations. So that's not an unpopular sentiment among gun rights advocates," Doar said. "I do think that the general consensus is that Trump would be much more favorable from a Second Amendment jurisprudence standpoint in his judicial appointments."

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Intro.9.2.22 Gonzalez v. Trevino : Free Speech, Retaliation, First Amendment

The Free Speech Clause of the First Amendment prevents the government from unduly abridging the freedom of speech. 1 Footnote 3 1072"> U.S. Const. amend. I ( Congress shall make no law . . . abridging the freedom of speech . . . . ). The Supreme Court has held that some restrictions on speech are permissible. See Amdt1.7.5.1 Overview of Categorical Approach to Restricting Speech ; see also Amdt1.7. 3 .1 Overview of Content-Based and Content-Neutral Regulation of Speech . Though the Clause refers to Congress and making law, its prohibition extends beyond legislative acts to all branches and offices of government. 2 Footnote 3 107 3 "> See Miami Herald Pub’g Co. v. Tornillo , 418 U.S. 241 (1974) (observing that the Free Speech Clause applies to any government agency—local, state, or federal ) (quoting Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels. , 41 3 U.S. 3 76, 400 (197 3 ) (Stewart, J., dissenting)). In particular, individuals may initiate legal proceedings against federal or state officials for violating their right to free speech. 3 " href="#ALDF_00031074"> 3 Footnote 3 1074"> An action brought against a federal official for violating constitutional rights is known as a Bivens action, after the Supreme Court case that established the right to file such an action. Bivens v. Six Unknown Named Agents , 40 3 U.S 3 88 (1971) . An individual may bring an action against a state official for violating constitutional rights under a federal civil rights statute known as Section 198 3 . 42 United States Code, Section 198 3 . For more information on these actions, see ArtIII.S2.C1.1 3 .4 Suits Against the United States and Sovereign Immunity . One basis for such a claim may be that an official took adverse action against the individual in response to the individual engaging in protected speech.

The Supreme Court has held that a plaintiff claiming to have suffered retaliation in violation of the Free Speech Clause must first demonstrate that the plaintiff engaged in constitutionally protected speech and such speech was a motivating factor behind the official’s adverse action. 4 Footnote 3 1075"> Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle , 429 U.S. 274, 287 (1977) . If the plaintiff demonstrates this, the official must show that it would have taken the same action absent the protected speech. 5 Footnote 3 1076"> Id. The Supreme Court has held that a plaintiff alleging retaliatory prosecution—that is, being charged with a crime in retaliation for speech—must also prove that their prosecution was not supported by probable cause, as required by the Fourth Amendment . 6 Footnote 3 1077"> Hartman v. Moore , 547 U.S. 250, 265–66 (2006) ; U.S. Const. amend. IV ( The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . . ). In Nieves v. Bartlett , the Court recognized an exception to the probable cause rule, holding that a plaintiff alleging retaliatory arrest need not show a lack of probable cause if the plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. 7 Footnote 3 1078"> Nieves v. Bartlett , 587 U.S. 3 91, 406 (2019) .

In Gonzalez v. Trevino , the Court was asked to weigh in on the scope and application of the probable cause exception articulated in Nieves . Sylvia Gonzalez, a former city council member, organized a petition while in office to oust the city manager. 8 Footnote 3 1079"> Gonzalez v. City of Castle Hills , No. 5:20-CV-1151-DAE, 2021 WL 4046758, at *1 (W.D. Tex. Mar. 12, 2021) , rev’d sub nom. Gonzalez v. Trevino , 42 F.4th 487 (5th Cir. 2022) , cert. granted , 144 S. Ct. 3 25 (202 3 ) ; see Joint App. at JA-2, Gonzalez v. Trevino , No. 22-1025 (U.S. Dec. 11, 202 3 ) . Later, Gonzalez was arrested on charges that she violated a government records law after placing the petition in her personal binder at the conclusion of a city council meeting. 9 Footnote 3 1080"> See Petition for a Writ of Certiorari at 6–7, Gonzalez v. Trevino , No. 22-1025 (U.S. Apr. 20, 202 3 ) ; Brief in Opposition at 2– 3 , Gonzalez v. Trevino , No. 22-1025 (U.S. June 8, 202 3 ) . The charges against Gonzalez were later dismissed by the district attorney. 10 Footnote 3 1081"> Gonzalez , 2021 WL 4046758,at *2 . Gonzalez brought a federal civil action against three city officials alleging that her arrest was retaliatory in violation of the First Amendment . 11 Footnote 3 1082"> Id. Gonzalez provided data taken from county records indicating that, of the past indictments, prosecutors did not apply the law to situations resembling her circumstances. 12 Footnote 3 108 3 "> Id. at *6 .

A federal district court held that Gonzalez’s evidence of general charging data was sufficient to invoke the Nieves exception and she therefore did not need to demonstrate a lack of probable cause for her arrest. 3 " href="#ALDF_00031084">1 3 Footnote 3 1084"> Id. The U.S. Court of Appeals for the Fifth Circuit reversed. 14 Footnote 3 1085"> Gonzalez , 42 F.4th 487 . The Fifth Circuit observed that the language of Nieves speaks of comparative evidence . . . of otherwise similarly situated individuals who engage in the same conduct. 15 Footnote 3 1086"> Id. at 492 (quoting Nieves v. Bartlett , 587 U.S. 3 91, 406 (2019) ). The court concluded that general data that the charge had never been used in similar circumstances did not meet this standard. 16 Footnote 3 1087"> Id. Gonzalez appealed to the Supreme Court. In addition to arguing that objective evidence, including charging data, may satisfy the Nieves exception, Gonzalez argued more broadly that the lack of probable cause requirement applicable in retaliatory arrest cases should not apply to her case, because the requirement applies only when the claims are based on split-second decisions to arrest. 17 Footnote 3 1088"> Petition for a Writ of Certiorari, supra note 9, at 25–26.

On June 20, 2024, the Supreme Court reversed in a per curiam opinion, holding that the Fifth Circuit misapplied the principles of Nieves . 18 Footnote Gonzalez v. Trevino , No. 22-1025, slip op. (U.S. June 20, 2024) . The Court explained that the Nieves exception does not require evidence of virtually identical and identifiable comparators. 19 Footnote Id . at 4 . Instead, the Court recognized that evidence that no one has ever been arrested for engaging in a certain kind of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is not novel, — is sufficient to invoke Nieves . 20 Footnote Id . at 5. The Court declined to address Gonzalez’s second argument that Nieves did not apply to her case, having resolved the case on the basis of Gonzalez’s first argument. 21 Footnote 3 "> Id .

Whether the Nieves probable cause exception can be satisfied by objective evidence other than specific examples of arrests that never happened.

Whether the Nieves probable cause rule is limited to individual claims against arresting officers for split-second arrests. 22 Footnote 3 1089"> Supreme Court of the United States Granted & Noted List , October Term 202 3 Cases for Argument, No. 22-1025 , https://www.supremecourt.gov/docket/docketfiles/html/qp/22-01025qp.pdf .

CONSTITUTIONAL PROVISION IMPLICATED: First Amendment , Free Speech Clause

CONSTITUTIONAL TOPIC: Freedom of Speech

SUPREME COURT DOCKET NUMBERS: 22-1025 3 " href="#ALDF_00031090">2 3 Footnote 3 1090"> Docket for 22-1025 , U.S. Supreme Court , https://www.supremecourt.gov/docket/docketfiles/html/public/22-1025.html .

APPEAL FROM: U.S. Court of Appeals for the Fifth Circuit

LOWER COURT CASE NUMBER: 21-50276

DECISION BELOW: 42 F.4th 487

ORAL ARGUMENT: March 20, 2024 24 Footnote 3 1091"> Oral Argument Transcript, Gonzalez v. Trevino , No. 22-1025 (U.S. Mar. 20, 2024) , https://www.supremecourt.gov/oral_arguments/argument_transcripts/202 3 /22-1025_8m58.pdf .

FINAL DECISION: June 20, 2024

Justice Alito concurring

Justice Kavanaugh concurring

Justice Jackson (joined by Justice Sotomayor) concurring

Justice Thomas dissenting

• 3 1072"> 3 1072">   Jump to essay-1 U.S. Const. amend. I ( Congress shall make no law . . . abridging the freedom of speech . . . . ). The Supreme Court has held that some restrictions on speech are permissible. See Amdt1.7.5.1 Overview of Categorical Approach to Restricting Speech ; see also Amdt1.7. 3 .1 Overview of Content-Based and Content-Neutral Regulation of Speech .
• 3 107 3 "> 3 107 3 ">   Jump to essay-2 See Miami Herald Pub’g Co. v. Tornillo , 418 U.S. 241 (1974) (observing that the Free Speech Clause applies to any government agency—local, state, or federal ) (quoting Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels. , 41 3 U.S. 3 76, 400 (197 3 ) (Stewart, J., dissenting)).
• 3 1074"> 3 1074"> 3 ">   Jump to essay- 3 An action brought against a federal official for violating constitutional rights is known as a Bivens action, after the Supreme Court case that established the right to file such an action. Bivens v. Six Unknown Named Agents , 40 3 U.S 3 88 (1971) . An individual may bring an action against a state official for violating constitutional rights under a federal civil rights statute known as Section 198 3 . 42 United States Code, Section 198 3 . For more information on these actions, see ArtIII.S2.C1.1 3 .4 Suits Against the United States and Sovereign Immunity .
• 3 1075"> 3 1075">   Jump to essay-4 Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle , 429 U.S. 274, 287 (1977) .
• 3 1076"> 3 1076">   Jump to essay-5 Id.
• 3 1077"> 3 1077">   Jump to essay-6 Hartman v. Moore , 547 U.S. 250, 265–66 (2006) ; U.S. Const. amend. IV ( The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . . ).
• 3 1078"> 3 1078">   Jump to essay-7 Nieves v. Bartlett , 587 U.S. 3 91, 406 (2019) .
• 3 1079"> 3 1079">   Jump to essay-8 Gonzalez v. City of Castle Hills , No. 5:20-CV-1151-DAE, 2021 WL 4046758, at *1 (W.D. Tex. Mar. 12, 2021) , rev’d sub nom. Gonzalez v. Trevino , 42 F.4th 487 (5th Cir. 2022) , cert. granted , 144 S. Ct. 3 25 (202 3 ) ; see Joint App. at JA-2, Gonzalez v. Trevino , No. 22-1025 (U.S. Dec. 11, 202 3 ) .
• 3 1080"> 3 1080">   Jump to essay-9 See Petition for a Writ of Certiorari at 6–7, Gonzalez v. Trevino , No. 22-1025 (U.S. Apr. 20, 202 3 ) ; Brief in Opposition at 2– 3 , Gonzalez v. Trevino , No. 22-1025 (U.S. June 8, 202 3 ) .
• 3 1081"> 3 1081">   Jump to essay-10 Gonzalez , 2021 WL 4046758,at *2 .
• 3 1082"> 3 1082">   Jump to essay-11 Id.
• 3 108 3 "> 3 108 3 ">   Jump to essay-12 Id. at *6 .
• 3 1084"> 3 1084"> 3 ">   Jump to essay-1 3 Id.
• 3 1085"> 3 1085">   Jump to essay-14 Gonzalez , 42 F.4th 487 .
• 3 1086"> 3 1086">   Jump to essay-15 Id. at 492 (quoting Nieves v. Bartlett , 587 U.S. 3 91, 406 (2019) ).
• 3 1087"> 3 1087">   Jump to essay-16 Id.
• 3 1088"> 3 1088">   Jump to essay-17 Petition for a Writ of Certiorari, supra note 9, at 25–26.
•   Jump to essay-18 Gonzalez v. Trevino , No. 22-1025, slip op. (U.S. June 20, 2024) .
•   Jump to essay-19 Id . at 4 .
•   Jump to essay-20 Id . at 5.
• 3 "> 3 ">   Jump to essay-21 Id .
• 3 1089"> 3 1089">   Jump to essay-22 Supreme Court of the United States Granted & Noted List , October Term 202 3 Cases for Argument, No. 22-1025 , https://www.supremecourt.gov/docket/docketfiles/html/qp/22-01025qp.pdf .
• 3 1090"> 3 1090"> 3 ">   Jump to essay-2 3 Docket for 22-1025 , U.S. Supreme Court , https://www.supremecourt.gov/docket/docketfiles/html/public/22-1025.html .
• 3 1091"> 3 1091">   Jump to essay-24 Oral Argument Transcript, Gonzalez v. Trevino , No. 22-1025 (U.S. Mar. 20, 2024) , https://www.supremecourt.gov/oral_arguments/argument_transcripts/202 3 /22-1025_8m58.pdf .