We have endlessly debated this issue over in GD (use the search engine to look up the threads - I personally started two such threads about 5 months ago).
No one will ever agree on the meaning of that amendment. If all it said was: “the right of the people to keep and bear arms shall not be infringed”, there would be little discussion, though I suppose some would attempt to distinguish “the people” from “a person”. It’s that language about militias that screws it all up, by making it hard to know precisely what the founding fathers were actually thinking.
I am going to chide Cecil on one aspect of his answer, though. In the initial answer, Cecil asserts that virtually every other right contained in the first 8 amendments has become a protection against state action as well as federal action. While this is true, it should be noted that there are other rights in the Bill of Rights that have NOT been ‘selectively incorporated’ into the Fourteenth Amendment’s ban on denial of life, liberty and property without due process. Indeed, the process of ‘selective incorporation’ was adopted by the court specifically because it rejected the assertion that the due process clause of the Fourteenth Amendment should be read to have totally incorporated all of the Bill of Rights (see for an example of the debate on this subject Adamson v. California, 332 U.S. 46 (1947). Therefore, in looking at whether any ‘right’ should be enforced against the states by individuals, one has to look NOT at whether it exists against the federal government, but whether it has a good reason to be enforced against the states.
The Supreme Court has declined specifically to apply the Second Amendment to the states (United States v. Cruikshank, 92 U.S. 542, 553 (1876)). It has also refused to apply the Fifth Amendment’s requirement of grand jury indictments and the Seventh Amendment’s guarantee of a jury trial in civil cases. In each case, the rationale is simple: the Court declines to accept the proposal that these rights are fundamental to the American system of law; that is, they are not “implicit in the concept of ordered liberty” (Palko v. Connecticut, 302 U.S. 319, 325 (1937)). [Note: yes, I know that the “fundamental to American justice” language is from later cases than the “ordered liberty” language; this is a semantics debate only in my humble opinion, used to get around arguments by conservative justices that certain rights aren’t necessary to have a democracy that works]
In addressing application of the Second Amendment to the states, then, one should be looking to see if there is a reason why it is fundamental to our system of government that the states should have to abide by the same restrictions as the federal government does. One could, of course, simply assert tha the federal government currently has essentially NO limit, based on recent regulations, but one must accept that, at a minimum, the federal government can’t simply ban gun ownership. Currently, the states can. So, should the states be able to do so? Or is the right to own a gun something that not even states should be able to infringe?
In addressing this issue, one must go back to the militia language, and debate whether the Amendment is intended to protect individuals or sub-units of the federation. But Cecil’s assertion that the issue should be open and shut based on the incorporation of freedom of speech, etc. into the Fourteenth Amendment is quite absurd, given the actual reasoning on ‘selective incorporation’.
