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Ratified in 1791, the Second Amendment provides, "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." For over two hundred years, the Supreme Court remained largely silent on the Second Amendment. In a series of relatively recent decisions, however, the Court has provided guidance on the substance and scope of this constitutional provision.
In 2008, in District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual right to possess firearms for certain purposes, including at least self-defense in the home. Two years later, in McDonald v. City of Chicago, the Court determined that the right to bear arms applies not only to laws imposed by the federal government, but also to laws enacted at the state and local levels. In 2016, in Caetano v. Massachusetts, the Court in a brief opinion clarified that "arms" within the meaning of the Second Amendment encompasses modern arms, including stun guns, that did not exist at the time of the founding.
In 2022, the Supreme Court in New York State Rifle & Pistol Association v. Bruen resolved two of the questions left open by the preceding decisions:
and
In Bruen, the Court held that the protections of the Second Amendment extend beyond the home generally to places of confrontation. The Bruen Court also announced the standard to be used in assessing Second Amendment challenges to firearm laws: When the plain text of the Second Amendment covers the regulated conduct, the Constitution "presumptively protects" it. To justify a regulation of that conduct, the government must demonstrate that a challenged law "is consistent with the Nation's historical tradition of firearm regulation."
Following Bruen, plaintiffs filed a number of legal actions contesting various federal and state firearm laws. Some of these cases involved challenges to long-standing provisions of the federal Gun Control Act prohibiting certain categories of individuals from possessing firearms:
On June 21, 2024, the Supreme Court reversed the Fifth Circuit's ruling in Rahimi, holding that Section 922(g)(8) is not facially unconstitutional under the Second Amendment. The Court reasoned that sufficient historical support existed for the principle that "[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed" temporarily.
The Supreme Court granted the petitions in Daniels and Range, vacated the corresponding circuit court opinions, and remanded the two cases back to the circuit courts for further consideration in light of Rahimi. On remand, the Fifth Circuit in Daniels, and the Third Circuit in Range, again concluded that Section 922(g)(3) and Section 922(g)(1), respectively, are unconstitutional as applied to the respective defendants.
This Sidebar is designed to serve as an ongoing, periodically updateda guide to selected Second Amendment cases at the Supreme Court involving federal statutes and regulations. The Sidebar does not discuss cases that challenge federal firearms statutes or regulations on some other legal basis, and it also excludes any petitions that challenge state laws.
As of this writing, the Court has not granted anytwo new Second Amendment cases for review. What follows is a list of (1) pending petitions for reviewthe two cases that the Court has accepted for review; (2) petitions involving the Second Amendment that the federal government has filed with the Court (which may be more likely to be granted relative to petitions filed by other parties); and (23) pending petitions for review, involving Second Amendment challenges to federal statutes or regulations, that have been filed with the Court by non-federal-government parties. While these petitions may press other grounds for appeal, they are presented here because they contain a Second Amendment challenge.
Cases are listed with identifying information and brief descriptions. The Sidebar concludes with considerations for Congress.
The Supreme Court has granted certiorari in two Second Amendment cases:The United States has filed a petition for review in Daniels, along with four other petitions that present the same questionAccepted by the Supreme Court
: "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment" as applied. The five petitions raising this question are:
The United States has filed two other petitions that present the same question at issue in Hemani:
It is possible that the Court will grant these petitions, vacate the underlying decisions, and remand the cases to the circuit level in light of the eventual decision in Hemani, as the Court did with Daniels following the ruling in Rahimi.
In both the Daniels and Sam petitions, the United States argued that Hemani is a "better vehicle" for the Court to address the constitutionality of Section 922(g)(3) because, according to the federal government, Daniels suffers from a "procedural wrinkle," and compared to Sam, the record in Hemani contains greater detail on the defendant's drug use. As such, the United States recommended that the Court grant the petition in Hemani, hold the Daniels and Sam petitions, and then dispose of them as appropriate following the ruling in Hemani.
This section lists petitions filed by nongovernmental parties involving federal statutes. As such, excluded from this list are any petitions contesting the constitutionality of state laws, such as state bans on the possession of particular semiautomatic weapons.
With this federal focus in mind, nongovernmental parties have brought their own challenges to the constitutionality of 18 U.S.C. § 922(g)(3):
Defendants in two separate cases have also asked the Supreme Court to hear Second Amendment challenges to 18 U.S.C. § 922(g)(3):
A number of parties also have mounted facial or as-applied challenges to the "felon-in-possession" statute, 18 U.S.C. § 922(g)(1). A primary focus ofissue in these cases is whether, under Bruen, individuals convicted of nonviolent felonies may be prohibited from possessing firearms under Section 922(g)(1):
One petition advances a related, threshold question about whether the right to bear arms "applies only to 'law-abiding citizens' who have no prior convictions":
A defendant filed a petition challenging the constitutionality of 18 U.S.C. § 922(n), which makes it "unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to . . . receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce":
A pair of25-5417.
Finally, with respect to specific arms subject to federal law, petitioners have raised the following questions:Finally, a defendant has filed a petition related to the National Firearms Act presenting the question
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Any of these Second Amendment cases that the Supreme Court accepts for review could inform and impact the statutory framework Congress has enacted to regulate firearms. If the Court does grant review in any of these cases, the Court may further clarify the status of existing federal firearms laws and the permissible bounds of any future firearms legislation. If the Supreme Court does not ultimately review any of these cases,Parallel developments in the courts of appeals may nonethelessalso offer further guidance for Congress on the constitutional standard established in Bruen and applied in Rahimi.