A Tour of the Second Amendment in the Third Circuit and Beyond

I. Introduction

            The Second Amendment to the Constitution states that “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.”[1]  The scope of the Second Amendment has been hotly debated. On the one hand, some people believe the amendment creates an individual right to bear firearms, whereas others believe the amendment allows for less latitude and for Congressional regulation of firearms[2]   These contradicting views leave open for debate the question of how the Second Amendment should be interpreted.  To begin such an analysis, an examination of the jurisprudence is essential.  In addition, this blog will focus specifically on the Third Circuit’s interpretation of the specific rights the Second Amendment protects.

II. Federal Right to Bear Arms: An Overview

            In United States v. Miller, the defendants were charged with unlawful transport of firearms in interstate commerce without having a proper order for the firearms in question, thus violating the National Firearms Act.[3]  The District Court held that the Act was in violation of the Second Amendment, as it was seen as an unconstitutional attempt to usurp the State’s police power.[4]  The Supreme Court reversed and held that Congress could regulate possession of a sawed-off shotgun because the defendants did not show evidence that a shotgun has a reasonable relationship to the efficiency of a militia, thus the Second Amendment did not guarantee the right to bear such firearm.[5]

            After United States v. Miller was decided, both individual and collective rights theorists claimed that the opinion supported their position, even though both theorists have conflicting views on the Second Amendment.[6]  Individual and collective rights theorists both emphasize the original meaning of the terms used in the Second Amendment, but individual rights theorists claim that the right is to be interpreted in favor of private ownership while military use is the emphasis of collective rights theorists.[7]  For instance, some individual rights theorists emphasized the fact that it was not shown to the Court that shotguns had military uses and if it were then the Court would have found the Act unconstitutional.  Moreover, the individual theorists focused on how it was significant that the Court addressed the merits of the Second Amendment claim.  As to collective rights theorists, they argued that the ruling supported their view that the Second Amendment simply protects the right to serve in the militia and for a state to maintain a militia and therefore firearms used by civilians can be regulated.[8]  Despite these arguments, the Court in Miller did not explicitly or implicitly adopt either theory, but did support the holding by stating that the shotgun was not essential to the maintenance of a militia[9].

            It wasn’t until decades later in District of Columbia v. Heller that the Supreme Court considered the issue again, wherein the Court held that the Second Amendment protects an individual’s right to possess a firearm for use in lawfully permitted purposes.[10]  The Court stated that the Second Amendment is not an unlimited right, rather the specific Act in question—which required a total ban on handguns—was in violation of the Constitution on the basis that it barred individuals from owning handguns for the lawful purpose of self-defense.[11]  This was the main holding of the case and served to tie the individual rights of the Second Amendment with the historically preserved right to self-defense, as well as settled the debate as to whether the Second Amendment was subject to limitations and applicable outside of military operations.[12]

            Then, in McDonald v. City of Chicago, the Supreme Court expanded on the Second Amendment right to keep and bear firearms for the purpose of self-defense recognized in Heller, and held that the Due Process Clause of the Fourteenth Amendment incorporates this protection, therefore it is applicable to the states.[13]  Both Heller and McDonald held that there exists a fundamental, constitutional right to keep and bear arms, but McDonald clarified that this right can be limited through government regulation.[14]

III. The Second Amendment in the Third Circuit

            After Miller was decided, lower courts in the Third Circuit interpreted the Second Amendment to mean that there was no absolute right to bear arms.[15]  The limitation of the Second Amendment was addressed in United States v. Rybar, wherein the Third Circuit held that a statute regulating the transfer and possession of machine guns was constitutional, and thus did not violate the Second Amendment.[16]  The opinion states that the Second Amendment does not give individuals an absolute right to own firearms, and that federal regulation of such firearms has consistently been held to be constitutional under the Commerce Clause.[17]

            In U.S. v. Marzzarella, which was decided after Heller and McDonald, the Third Circuit held that a statute requiring firearms to be marked with valid serial numbers did not violate the Second Amendment right to bear arms, as the statute did not bar the defendant from possessing firearms and placed only a minimal burden on his ability to defend himself.[18]  The Court noted that the Second Amendment right is subject to limitations, and more so the protection afforded extends only to weapons that law-abiding citizens would typically possess for lawful purposes.[19]  In arriving at its conclusion, the Third Circuit set out a two prong test: “(1) [W]hether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee[,]” and (2) if answered affirmatively, “whether that law survives a means-end scrutiny.”[20]  The first prong requires the Court to examine the historical meaning of the Second Amendment, while the second prong pertains to the appropriate level of scrutiny.[21]  Specifically, the Court found that it was unclear whether unmarked firearms were included within the scope of the Second Amendment, but that the statute in question fit reasonably with the state interest in tracing serial numbers of weapons.[22]

            Similarly, a year later, in U.S. v. Barton, the Third Circuit held that a statute that prohibited convicted felons from possessing firearms was not a violation of the Second Amendment.[23]  The Court of Appeals reasoned that Heller allowed for a presumptively lawful regulation to fall outside the purview of the Second Amendment.[24]  Moreover, the Court stated that denying felons the right to own firearms freely was consistent with the intent of the Second Amendment: to maintain security of the states.[25]  Furthermore, certain regulations are exceptions to the fundamental right to bear arms, being that the conduct that is regulated is not within the scope of that amendment.[26]

            More recently, the Supreme Court has denied certiorari of the case Drake v. Filco,[27] which is a case involving a New Jersey law that requires individuals carrying handguns to, among other things, submit special applications showing that there is a justifiable need for them to carry that weapon.[28]  The Third Circuit held the statutory requirement was lawful and, in doing so, followed the two-step approach of Marzzarella.[29]  Specifically, the Court concluded that the applicants demonstrated a justifiable need, the reason was presumptively lawful, and thus the regulation did not burden conduct within the purview of the Second Amendment.[30]  This case shows the justifiable need standard that handgun owners are required to demonstrate in New Jersey qualifies as a “longstanding” tradition of regulation of conduct that falls outside of the scope of the Second Amendment’s guarantees.[31]  Yet, the Supreme Court’s decision to deny certiorari communicates that the Court is not ready to address this particular issue at this time, despite the fact that gun control and regulations of firearms are hotly debated topics across the circuits.[32]

IV. Conclusion

            While Heller and McDonald were helpful in the sense that they clarified the scope of the guarantees of the Second Amendment and determined that those guarantees were applicable to the states,[33] the fact that those cases are so recent has led to uncertainty as to how the Second Amendment is applicable to various situations.  This has been shown by the Third Circuit jurisprudence in this area.[34]  Although the Third Circuit has maintained consistency in this area of law, it remains to be seen how future cases will affect the application of the Second Amendment to issues within the jurisdiction of the Third Circuit.

*Aie at Rutgers School of Law—Camden. She may be contacted at ablenner90@gmail.com.


[2] John L. Schwab & Thomas G. Sprankling, Houston, We Have a Problem: Does the Second Amendment Create a Property Right to a Specific Firearm?, 112 COLUM. L. REV. SIDEBAR 158, 160 (2012).

[3] 59 S. Ct. 816 (1939)(holding that the National Firearms Act, which regulates and taxes transfer of certain types of firearms as well as requiring owners to register those firearms, was not unconstitutional).

[4] Id. at 817.

[5] Id. at 818.

[6] Brian L. Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U.J.L. & LIBERTY 48, 51 (2008).

[7] Id. at 81.

[8] Id. at 51-52.

[9] 59 S. Ct. 819 (1939).

[10] 554 U.S. 570, 635 (2008).  

[11] Id. at 571-72.

[12] Kyle Hatt, Gun-Shy Originalism: The Second Amendment’s Original Purpose in District of Columbia v. Heller, 44 SUFFOLK U. L. REV. 505, 505-06 (2011).

[13] 130 S. Ct. 3020, 3021 (2010).

[14] Michael J. Habib, The Future of Gun Control Laws Post-McDonald and Heller and the Death of the One Gun Per Month Legislation, 44 CONN. L. REV. 1339, 1357 (2012).

[15] Katherine L. Judkins, Note, Navigating the Second Amendment Crossfire: The Third Circuit Triggers Working Methodology in United States v. Marzzarella and United States v. Barton, 57 VILL. L. REV. 711, 714 (2012). 

[16] 103 F.3d 273, 274 (3rd Cir. 1996).

[17] Id. at 286.

[18] 614 F.3d 85, 94 (3rd Cir. 2010).

[19] Id. at 90 (quoting McDonald v. City of Chicago, 130 S. Ct. 3020 ,3047 (2010)(plurality opinion of Alito, J.)).

[20] Judkins, supra note 13, at 722 (citing Marzzarella, 614 F.3d at 89).

[21] Id. at 723 (quoting Marzzarella, 614 F.3d at 90).

[22] See Marzzarella, 614 F.3d at 98-99.

[23] 633 F.3d 168, 175 (3rd Cir. 2011).

[24] Id. at 171 (quoting Dist. of Columbia v. Heller, 554 U.S. 570, 647 (2008)).

[25] Id. at 175 (quoting U.S. CONST. amend. II).

[26] Id. at 172.

[27] Gabrielle Khorasanee, Supreme Court Denies Cert in New Jersey Gun Law Challenge, FINDLAW FOR LEGAL PROFESSIONALS (May 7, 2014, 2:59 PM), http://blogs.findlaw.com/third_circuit/2014/05/supreme-court-denies-cert….

[28] 724 F.3d 426, 428 (3rd Cir. 2013).

[29] Id. at 429.

[30] Id.

[31] Id. at 435.

[32] Khorasanee, supra note 25.

[33] See McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010); Dist. of Columbia v. Heller, 554 U.S. 570, 625 (2008).

[34] See generally Drake v. Filco, 724 F.3d 426 (3rd Cir. 2013); U.S. v. Barton, 633 F.3d 168 (3rd Cir. 2011); U.S. v Marzzarella, 614 F.3d 85 (3rd Cir. 2010); U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996).