The Boundaries of the Second Amendment

Amona Al-Refaei, University of Cincinnati Law Review, Associate Member

In 1791, the Second Amendment provided citizens with the right to keep and bear arms, specifying that the right shall not be infringed.[1] Despite this long history, the Supreme Court’s “first in depth examination of the Second Amendment is younger than the first iPhone.”[2] In 2008, the Supreme Court struck down an ordinance that generally prohibited the possession of handguns.[3]  In  District of Columbia v. Heller, an ordinance required residents to keep their lawfully owned firearms “unloaded and dissembled or bound by a trigger lock or similar device” unless the guns are in a place of business or are being used for lawful recreational activities.[4] The Court held (1) the Second Amendment protects an individual right to possess a firearm unconnected to serving a militia;[5] (2) the central component of the right itself was self-defense;[6] and (3) the Second Amendment provided an individual right for responsible citizens to use arms in defense of hearth and home.[7] However, the Court noted, “nothing in our opinion should be taken to cast doubt on the longstanding prohibitions of 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.”[8]

Following the Court’s opinion in Heller, the District of Colombia created a new gun regulation. This new gun regulation was recently struck down in Wrenn v. District of Columbia, where the court held that the right to carry a concealed weapon is a “core” right protected by the Second Amendment.[9] However, in Kachalsky v. Cty. Of Westchester, the Second Circuit held a New York regulation limiting handgun possession to those with a special need for self-protection was permissible under the Second Amendment.[10] The D.C. Circuit reached an incorrect decision in Kachalsky because the court extended the Second Amendment protection beyond that provided in Heller.

Wrenn v. District of Columbia

In Wrenn, the gun regulation limited licenses to carry concealed handguns to those showing a “good reason to fear injury to [their] person or property” or “any other proper reason for carrying a pistol.”[11] To receive a license based on a “good reason to fear injury,” applicants had to show a “special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant’s life.”[12] Moreover, the regulations stated living or working “in a high crime area shall not by itself establish a good reason” to carry.[13]  This regulation was the District of Columbia’s third major attempt in forty years to use gun regulations to balance public safety and the Second Amendment.[14]

The D.C. Circuit stated Heller revealed some absolute barriers created by the Second Amendment that no gun law may breach.[15] Because the Second Amendment is a fundamental right, the court needed to determine whether a gun law imposes “substantially” on the Second Amendment’s core.[16] The court determined the core or central component of the Second Amendment right to keep and bear arms protects individual self-defense by responsible citizens.[17] However, the court in Wrenn stated this does not mean home defense is the only right at the amendment’s core.[18] The Second Amendment’s core includes a responsible citizens’ right to carry common firearms for self-defense beyond the home.[19] The court concluded that the individual right to carry firearms beyond the home for self-defense falls within the core of the Second Amendment’s protections.[20]

Kachalsky v. Count of Westchester

The Second Circuit upheld the New York handgun licensing regulation, which did not ban handguns but required individuals to have an actual reason to carry the weapon.[21] Under New York’s regulation of firearms, individuals were required to show proper cause for the issuance of the license to carry.[22] Proper cause includes carrying a handgun for target practice, hunting or self-defense.[23] To obtain a license without any restrictions, individuals were required to demonstrate a special need for self-protection distinguishable from that of the general community.[24] Every application triggered a local investigation by police into the applicant’s mental health history, criminal history, and moral character.[25]

The Second Circuit stated Heller was never meant to clarify the entire field of Second Amendment jurisprudence.[26] The Second Circuit stated, “Second Amendment guarantees are at their zenith within the home.”[27] But, the court noted Heller did not explain the scope of the right beyond the home or the standards for determining when and how the right can be regulated.[28] The court observed that the states often disagreed as to the scope of the right to bear arms.[29] The court held that the good-reason law did not operate as a complete ban on the possession of handguns in public.[30] It concluded that the good-reason law fell outside the core Second Amendment protections identified in Heller because the regulation in New York affected the ability to carry handguns in public and the D.C. regulation ban applied in the home.[31]

The Second Amendment’s Limits

The D.C. Circuit was incorrect to hold that good-reason laws should be treated as a complete prohibition on the Second Amendment right to bear arms.[32] The court also should not have stated the regulation in Wrenn was similar to the ban disputed in Heller, which required residents to keep their firearms either unloaded or bound by a trigger lock at home,[33] because the regulation in Wrenn applied to carrying a concealed firearm. The Wrenn court argued the Second Circuit reached an incorrect result because it failed to use the historical method, as the Supreme Court required in Heller, to determine the Amendment’s core and boundaries.[34] The Second Circuit correctly noted the history of the Second Amendment does not provide clarity because the history indicates the states have disagreed about regulating firearms since the Amendment was ratified.[35]

Rather than striking down the regulation without applying any tiers of scrutiny, the court in Wrenn should have applied intermediate scrutiny to determine whether the regulation violated the Second Amendment. In Heller, the Court stated the “core” protection of the Second Amendment is the “right of law-abiding responsible citizens to use arms in defense of hearth and home.”[36] Applying less than strict scrutiny makes sense when the regulation does not burden the “core” of the right. Similar logic is used for analyzing other enumerated rights. For example, when analyzing First Amendment claims, regulations for commercial speech are subject to intermediate scrutiny,[37] but content-based restrictions on noncommercial speech are subject to strict scrutiny.[38] So long as challenged gun regulations further an important government interest, such as protecting the public, the regulations should be upheld by the judicial branch.

When crafting good-reason laws, the government’s primary purpose is to prevent crime and increase public safety. The fundamental right to keep and bear arms is at its height when in individual’s homes. However, the right is not without limits outside the home. So long as the regulation passes intermediate scrutiny, it should be upheld. Additionally, good-reason laws are not outright bans on possession or use of firearms. These laws seek to reduce violent crimes, and citizens with a special need for self-defense are still permitted to carry firearms. While some citizens may not be permitted to carry firearms under good-reason laws, the potential to decrease violent crimes is enough to uphold a good-reason law.

The Supreme Court has a long history of striking down legislation that extends into the home.[39] For example, in Lawrence v. Texas, the Court held the state’s efforts to regulate private sexual conduct between consenting adults is not permitted when it intrudes into the home, because the state is not omnipresent in the home.[40] Moreover, the Supreme Court’s opinion in Heller did not provide a basis for applying the Second Amendment protections equally in the home and in public. Instead, the Supreme Court noted there is a heightened right for individuals to protect their homes.[41] Additionally, the Supreme Court has approved bans on some types of guns so long as guns that are most useful for home defense remain accessible.[42]

Similarly, other fundamental rights are subject to limitations under some circumstances. For example, the freedom of speech is significantly more limited when it is categorized as commercial speech than when the speech takes place in other settings, particularly in the home. Similarly, the Second Amendment protection may apply in the home, but the legislature should be permitted to establish limits on this right in the public so long as the regulations would satisfy intermediate scrutiny.  However, the government’s interest in public safety and crime prevention cannot be used to create a prohibition of firearm possession.


Legislatures concerned with risks to public safety may be tempted to regulate the possession or carrying of firearms. The Supreme Court has recognized and protected the Second Amendment right to possession in the home. However, the right is still subject to some limitations, including banning possession for felons and mentally ill individuals. The D.C. Circuit was incorrect by failing to apply any of the tiers of scrutiny after finding a good-reason law created a total ban on the right to bear arms. Instead, courts should follow the Second Circuit and determine whether the legislation is substantially related to the achievement of an important governmental interest.

[1] USCS Const. Amend. 2

[2] Wrenn v. District of Columbia, 864 F.3d 650, 655 (D.C. Cir. 2017).

[3] District of Columbia v. Heller, 554 U.S. 570, 574, 128 S. Ct. 2783, 2788 (2008).

[4] Id. at 575.

[5] Id. at 577.

[6] Id.

[7] Id. at 635.

[8] Id. at 626-27.

[9] Wrenn, 864 F.3d at 657.

[10] Kachalsky v. Cty. of Westchester, 701 F.3d 81, 83 (2d Cir. 2012).

[11] Wrenn, 864 F.3d at 655.

[12] Id.

[13] Id. at 656.

[14] Id.

[15] Id. at 655.

[16] Id. at 657.

[17] Id. at 657.

[18] Id. at 657.

[19] Id.

[20] Id. at 661.

[21] Kachalsky, 701 F.3d at 84.

[22] Id. at 85.

[23] Id. at 86.

[24] Id.

[25] Id. at 87.

[26] Id. at 88.

[27] Id. at 89.

[28] Id.

[29] Id. at 91.

[30] Id. at 91.

[31] Id. at 94.

[32] Wrenn, 864 F.3d at 665.

[33] Heller, 554 U.S. at 574.

[34] Wrenn, 864 F.3d at 661.

[35] Kachalsky, 701 F.3d at 91. “Compare Bliss v. Commonwealth, 12 Ky. 90, 1822 WL 1085, at*3 (1822) (concluding that a prohibition on carrying concealed weapons was unconstitutional), with Aymette v. State, 21 Tenn. 154, 1840 WL 1554, at **4-6 (1840) (citing to Bliss but reaching the opposite conclusion).”

[36] Heller, 554 U.S. at 634-45.

[37] See Florida Bar v. Went for It, Inc., 515 U.S. 618, 624-25 (1995).

[38] See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

[39] See Lawrence v. Texas, 539 U.S. 558 (2003).

[40] See Id. at 562. “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.”

[41] Id. at 628.

[42] Heller, 554 U.S. at 627.

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