Are Handguns a Matter of Privacy?

The thesis developed in this Article is that the Heller and Bruen cases involved primarily right-to-privacy concerns. By its terms, the Second Amendment involves the collective right to bear Arms in connection to regulated militia service and does not mention handguns. Handguns were not “ordinary military weapons” employed by a militia at the time of the American revolution under the originalist view. The Ninth and Fourteenth Amendments are more appropriate sources for an individual privacy right related to the possession of handguns for private purposes, such as for self-defense or suicide.

However, a prohibition of handguns under this approach would entail legal scrutiny that both the Heller and Bruen decisions were obviously meant to avoid. Suicide, the most likely causal outcome of owning a handgun, also seems to be a matter of privacy where the privacy right to choose a handgun for suicide might be balanced against the rights of other persons