The Courts, the Second Amendment, and Public Safety

In 2008, the US Supreme Court held that the Second Amendment protects an individual's right to have a handgun in their home for self-defense, unrelated to any service in a "well-regulated Militia." The Court then left open for over a decade what other aspects of gun possession and use were constitutionally protected. In 2022, the Court rejoined the Second Amendment debate, striking down a New York law limiting who may carry firearms in public, and declaring public carry for self-defense part of our "core" Second Amendment rights.

In doing so, the Court announced that modern gun control measures will only be constitutional if a similar restriction existed in 1791, when the founding generation ratified the Second Amendment, or possibly 1868, when the Fourteenth Amendment (which applies the Second Amendment to the states) was adopted.

Lower courts have struggled to apply this approach to a wide range of gun restrictions that gun owners and organizations are aiming to eliminate—including a longstanding federal ban on gun possession by persons under domestic violence restraining orders. The Fifth Circuit, citing the Supreme Court's originalist approach to the Second Amendment, struck down that ban, a ruling that the Supreme Court will review next term.

Is the Court's "originalist" approach to the Second Amendment (and the rest of the Constitution) right or wrong? Why? How should judges, who are not trained historians, resolve competing claims about what early American history shows? And what will this exercise mean for public safety in America, a country that recorded 647 mass shootings in 2022 and has counted over 400 so far in 2023?

Take a shot with Beth Cate, clinical associate professor at the O'Neill School of Public and Environmental Affairs, at exploring the Second Amendment, originalism, and its implications for 21st-century Americans.

About the Speaker

Beth Cate is clinical associate professor of law and public affairs at the O'Neill School. Her teaching, service, and scholarly interests focus on constitutional and administrative law, data law and policy, and the intersection of law and religion. Her publications include a co-authored chapter on the Supreme Court and information privacy in Bulk Collection: Systematic Government Access to Private-Sector Data, edited by Fred H. Cate and James X. Dempsey (New York: Oxford University Press, 2017). As of January 2022, Professor Cate has been on leave serving as corporation counsel for the city of Bloomington.

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