How Supreme Court Rulings Reshaped The Second Amendment

The ground under the Second Amendment keeps shifting—and the story is bigger than a single case. With Professor Nelson Lund of George Mason University’s Antonin Scalia Law School, we walk through the decisions that rewrote the playbook: Heller’s recognition of an individual right, McDonald’s incorporation against the states, Bruin’s insistence on a history-and-tradition test, and Rahimi’s controversial turn toward preventive disarmament for those deemed dangerous. Along the way, we unpack why courts once avoided the Second Amendment, how the Fourteenth Amendment became the vehicle for applying it to state laws, and why lower courts swung from broad deference to tighter scrutiny and back again.

We dig into the mechanics of constitutional tests—what counts as a historical analogue, when modern public safety claims carry weight, and how a single sentence in a majority opinion can steer years of litigation. Professor Lund explains why Rahimi, despite its popular appeal, may blur the very standard Bruin tried to clarify, reviving the kind of judicial balancing that Heller warned against. That tension sets the stage for what comes next, because the doctrine is no longer just about muskets and militia; it is about how courts translate old principles to new realities without letting policy preferences masquerade as history.

Looking forward, we preview two cases with outsized impact: Hawaii’s rule that bars carry on private property without explicit permission, and the federal prohibition on firearm possession by unlawful drug users. Both raise high-stakes questions about practical self-defense, public safety, and the limits of historical reasoning. If you care about constitutional law, public policy, or teaching these issues in the classroom, this conversation offers a clear map of where the law has been—and the signals to watch as the Court charts the road ahead. If the episode resonates, follow the show, share it with a friend, and leave a review to help others find thoughtful legal analysis.

Professor Lund recommends The Heritage Guide to the Constitution for more, including the section on the Second Amendment that he authored. 

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Chapters

• 1:32 Introducing Professor Nelson Lund
• 2:33 Why Second Amendment Law Took So Long
• 4:32 Heller And The Individual Right
• 5:41 Incorporation Through The Fourteenth Amendment
• 7:19 Lower Courts After Heller
• 7:55 Bruin’s History-And-Tradition Test
• 9:05 Rahimi And The Return Of Deference
• 11:01 What Courts May Do Next
• 12:10 Two New Supreme Court Cases
• 13:15 Closing Thanks And Takeaways

Transcript

SPEAKER_00: 0:46

Today's guest is Nelson Lund, distinguished university professor at George Mason University's Antonin Scalia Law School. Professor Lund is the author of Rousseau's Rejuvenation of Political Philosophy, A New Introduction, and has written extensively on constitutional law, including topics like federalism, separation of powers, and the Second Amendment. He earned his PhD in political science from Harvard and his law degree from the University of Chicago, where he served as executive editor of the Law Review. His career includes service in the U.S. Department of Justice, the White House Counsel's Office, and clerkships with Justice Sandra Day O'Connor and Judge Patrick Hagenbotham. At George Mason, he teaches constitutional law and jurisprudence, and a scholarship continues to shape debates about the Constitution and American legal thought. Welcome back, everyone. If you have not listened to the podcast episode with Professor Lund as he goes over the Second Amendment, I highly suggest that I will make sure it's in the show notes. Today we're talking about the Supreme Court cases that go with the Second Amendment. So, Professor Lund, starting with the 2008 decision, District of Columbia versus Heller, there have been several, several Supreme Court decisions, hundreds of lower court decisions about the Second Amendment. But prior to that, we rarely ever heard the topic. Why did it take so long for this development to occur?

SPEAKER_01: 2:17

Well, the Second Amendment originally applied only to the federal government, and Congress first enacted a significant federal gun control law in 1934. That law put certain restrictions on weapons that had become associated in the public mind with gangsters during prohibition. One provision of the law established a registration requirement and an onerous tax on short-barreled shotguns. In 1939, the Supreme Court agreed to review that law. I think this was an obvious misinterpretation of the Supreme Court's opinion, but the court allowed these lower court decisions to stand until the 2008 Heller decision. In that case, by a vote of five to four, the court rejected the consensus among the lower courts and held that the Second Amendment protects an individual right to keep and bear arms, and it then invalidated a federal handgun ban in the nation's capital.

SPEAKER_00: 4:00

So Heller involves a federal regulation, but many other cases involve state and local laws. If the Second Amendment originally applied only to the federal government, why is it now being used to review state and local laws?

SPEAKER_01: 4:16

In 1868, after the Civil War, the nation ratified the 14th Amendment. And one of the one of those provisions in the 14th Amendment was the privileges or immunities clause, which prohibited the state the states from violating the privileges or immunities of United States citizens. That suggested, and there's legislative history to support it, that the right to keep and bear arms would be protected by that clause of the 14th Amendment, and the states would be forbidden uh to infringe on the right. But in 1876, only a few years after the amendment was adopted, uh the Supreme Court rejected that interpretation in the Krupshank case. So the Bill of Rights from then on uh just didn't apply to the state governments. In the 20th century, the the Supreme Court began a process incorporating some provisions of the Bill of Rights into the into the into the 14th Amendment, not using the Privileges or Immunities Clause, which Krukshank had rejected, but using the Due Process Clause. And during the 20th century, the court kind of one by one started applying various provisions of the Bill of Rights to the states, not all of them at one time, and they never did get around to actually doing all of them. Well, I think they're pretty close to it now. But for most of the 20th century, they just didn't do it for the Second Amendment, but they finally did so in the McDonald versus City of Chicago case, which was two years after Heller. So they waited until after Heller, and then they decided for the first time that the right to keep and bear arms and the right protected by the Second Amendment would apply to the states as well as the federal government.

SPEAKER_00: 6:17

So now that the Supreme Court has decided that the Second Amendment protects an individual's right against infringement from any level of government, whether that be federal, state, or local, what kinds of laws get upheld and what kind get invalidated?

SPEAKER_01: 6:33

For many years after the Heller decision, the lower courts upheld virtually every gun control law that they reviewed. They did this by interpreting Heller to create a strong presumption that any laws that seemed like reasonable public safety measures would be upheld. They also took advantage of some stray remarks in Heller. I call them stray remarks, but I would say they're non-binding remarks in Heller that endorsed a number of uh modern gun control laws that were not at issue in the Heller case itself. In 2022, the court repudiated the very deferential approach to the government's uh gun control regulations in the Bruin case. That case involved a New York statute that gave government bureaucrats almost unlimited discretion to deny anyone the right to carry a handgun for self-protection. By a vote of six to three, the Supreme Court invalidated this law and held that any law infringing on the right to keep and bear arms is unconstitutional unless the government can affirmatively prove that the law is consistent with America's historical tradition of firearm regulation. But because there were almost no restrictions on possessing or carrying guns in 1791 and very few in 1868, this legal test seemed to create an almost insurmountable barrier for most modern gun control regulations.

SPEAKER_00: 8:15

So has that proved to be true?

SPEAKER_01: 8:18

No, it hasn't. In United States versus Rahimi in 2024, the Supreme Court upheld by a vote of 8 to 1 a federal statute that made it a crime to possess a firearm if a state court has found that you are a danger to what the statute calls your intimate partner and has ordered you not to threaten that partner. The majority opinion in the Rahimi case did not identify a single historical law that prevented anyone from possessing whatever weapons they wanted. Lots of laws punished the misuse of weapons, of course, but until the 20th century, even people convicted of violent crimes were free to possess firearms after they served their sentences. The court in Raimi basically invented a non-existent historical tradition by pointing to two kinds of historical laws. One of them punished the misuse of weapons in ways that terrorized the public. The other allowed a court to require someone to post a bond if there was probable cause to think that he would disturb the peace. Neither of these laws were remotely comparable to the statute at issue in Rahimi. Nevertheless, the majority opinion said that those laws confirmed what common sense suggests, namely that the government should be free to disarm anyone who possesses, who poses a clear threat of violence to someone else. In effect, this case revives the approach taken by all the lower courts in the period between Heller and Bruin. That approach, which Bruin said was fundamentally wrong, allows courts to uphold any regulation that they think is a good idea based on a judge's common sense or policy preferences.

SPEAKER_00: 10:15

So does this mean that we should expect almost every gun control law to be upheld from now on?

SPEAKER_01: 10:22

Not necessarily. Many judges today, especially those appointed by President Trump, are inclined to think that the robust protection of the right to keep and bear arms is fundamentally important. And they are more skeptical about the value of restricting the rights of law-abiding citizens than most judges have been in the past. And the deferential test that seems to have been endorsed by the Himi case gives these judges and all judges a lot of leeway to either uphold or strike down and validate laws, gun control laws based on the policy views of the judges, especially their policy views about the value of the Second Amendment as an important part of the Constitution or an unimportant and unmoded, outmoded part of the Constitution. So we don't know where this jurisprudence is going to go with respect to the many particular issues that are raised by specific gun control statutes. We'll maybe get a little bit of an idea of where things are going this coming year because the courts agreed to review two new cases, and that may tell us more about what the future holds. One of them is a Hawaii law that forbids you to carry a gun on private property unless you first get the express permission of the property owner. That law would make it impossible as a practical matter to carry a gun for self-defense in daily life. So if it's upheld, that will be an indication that the court has stopped taking the value of the Second Amendment seriously. The other case involves a federal statute that forbids habitual users or unlawful users of illegal drugs to possess a firearm. Like the Rahimi case, this one involves a law that has great political appeal. It will be interesting to see whether the court's legal reasoning is any better than what we saw in the Rahimi opinion.

SPEAKER_00: 12:25

Those will be exciting to see how the Supreme Court uh looks at those. Professor Lund, thank you so much for taking a topic that is, again, very vast and really distilling it down for us, especially for classroom teachers who need to talk about this in class. We have a lot of case law to look at. So thank you so much. We really appreciate your expertise.

SPEAKER_01: 12:50

Thank you very much for having me.