U.S. Supreme Court Cases

United States v. Cruikshank, 92 U.S. 542 (1876). This wasthe first case in which the Supreme Court had the opportunity tointerpret the Second Amendment. The Court recognized that the rightof the people to keep and bear arms was a right which existed priorto the Constitution when it stated that such a right "is not a rightgranted by the Constitution...[n]either is it in any mannerdependent upon that instrument for its existence." The indictment inCruikshank charged, inter alia, a conspiracy by Klansmen toprevent blacks from exercising their civil rights, including thebearing of arms for lawful purposes. The Court held, however, thatbecause the right to keep and bear arms existed independent of theConstitution, and the Second Amendment guaranteed only that the rightshall not be infringed by Congress, the federal government had nopower to punish a violation of the right by a private individual;rather, citizens had "to look for their protection against anyviolation by their fellow-citizens" of their right to keep and beararms to the police power of the state.

Presser v. Illinois, 116 U.S. 252 (1886). Although theSupreme Court affirmed the holding in Cruikshank that theSecond Amendment, standing alone, applied only to action by thefederal government, it nonetheless found the states without power toinfringe upon the right to keep and bear arms, holding that "theStates cannot, even laying the constitutional provision in questionout of view, prohibit the people from keeping and bearing arms, as soto deprive the United States of their rightful resource formaintaining the public security and disable the people fromperforming their duty to the general government."

Presser, moreover, plainly suggested that the SecondAmendment applies to the states through the Fourteenth Amendment andthus that a state cannot forbid individuals to keep and bear arms. Tounderstand why, it is necessary to understand the statutory schemethe Court had before it.

The statute under which Presser was convicted did notforbid individuals to keep and bear arms but rather forbade "bodiesof men to associate together as military organizations, or to drillor parade with arms in cities and towns unless authorized by law..." Thus, the Court concluded that the statute did not infringe the rightto keep and bear arms.

The Court, however, went on to discuss the Privileges andImmunities Clause of the Fourteenth Amendment, noting that"[i]t is only the privileges and immunities of citizens ofthe United States that the clause relied on was intended to protect." As the Court had already held that the substantive right to keep andbear arms was not infringed by the Illinois statute since that statuedid not prohibit the keeping and bearing of arms but ratherprohibited military-like exercises by armed men, the Court concludedthat it did not need address the question of whether the state lawviolated the Second Amendment as applied to the states by theFourteenth Amendment.

Miller v. Texas, 153 U.S. 535 (1894). In this case, theCourt confirmed that it had never addressed the issue of the SecondAmendment applying to the states through the Fourteenth Amendment. This case remains the last word on this subject by the Court.

Miller challenged a Texas statute on the bearing of pistolsas violative of the Second, Fourth, and Fourteenth Amendments. But heasserted these arguments for the first time after his conviction hadbeen affirmed by a state appellate court. ReiteratingCruikshank and Presser, the Supreme Court first foundthat the Second and Fourth Amendments, of themselves, did not limitstate action. The Court then turned to the claim that the Texasstatute violated the rights to bear arms and against warrantlesssearches as incorporated in the Fourteenth Amendment. But because theCourt would not hear objections not made in a timely fashion, theCourt refused to consider Miller's contentions.

Thus, rather than reject incorporation of the Second and FourthAmendments in the Fourteenth, the Supreme Court merely refused todecide the defendant's claim because its powers of adjudication werelimited to the review of errors timely assigned in the trial court.The Court left open the possibility that the right to keep and beararms and freedom from warrantless searches would apply to the statesthrough the Fourteenth Amendment.

U.S. v. Miller, 307 U.S. 174 (1939). This is the only casein which the Supreme Court has had the opportunity to apply theSecond Amendment to a federal firearms statute. The Court, however,carefully avoided making an unconditional decision regarding thestatute's constitutionality; it instead devised a test by which tomeasure the constitutionality of statutes relating to firearms andremanded the case to the trial court for an evidentiary hearing (thetrial court had held that Section 11 of the National Firearms Act wasunconstitutional). The Court remanded to the case because it hadconcluded that:

• In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Thus, for the keeping and bearing of a firearm to beconstitutionally protected, the firearm should be a militia-typearm.1

The case also made clear that the militia consisted of "all malesphysically capable of acting in concert for the common defense" andthat "when called for service these men were expected to appearbearing arms supplied by themselves and of the kind in common use atthe time."2 In setting forth this definition ofthe militia, the Court implicitly rejected the view that the SecondAmendment guarantees a right only to those individuals who aremembers of the militia. Had the Court viewed the Second Amendment asguaranteeing the right to keep and bear arms only to "all malesphysically capable of acting in concert for the common defense," itwould certainly have discussed whether, on remand, there should alsobe evidence that the defendants met the qualifications for inclusionin the militia, much as it did with regard to the militia use of ashort-barrelled shotgun.

Lewis v. United States, 445 U.S. 95 (1980). Lewisrecognized--in summarizing the holding of Miller, supra, as"the Second Amendment guarantees no right to keep and bear a firearmthat does not have 'some reasonable relationship to the preservationor efficiency of a well-regulated militia'" (emphasis added)--thatMiller had focused upon the type of firearm. Further,Lewis was concerned only with whether the provision of theOmnibus Crime Control and Safe Streets Act of 1968 which prohibitsthe possession of firearms by convicted felons (codified in 18 U.S.C.922(g) in 1986) violated the Second Amendment. Thus, since convictedfelons historically were and are subject to the loss of numerousfundamental rights of citizenship --including the right to vote, holdoffice, and serve on juries--it was not erroneous for the Court tohave concluded that laws prohibiting the possession of firearms by aconvicted felon "are neither based upon constitutionally suspectcriteria, nor do they trench upon any constitutionally protectedliberties."

United States v. Verdugo-Urquirdez, 110 S. Ct. 3039 (1990).This case involved the meaning of the term "the people" in the FourthAmendment. The Court unanimously held that the term "the people" inthe Second Amendment had the same meaning as in the Preamble to theConstitution and in the First, Fourth, and Ninth Amendments, i.e.,that "the people" means at least all citizens and legal aliens whilein the United States. This case thus resolves any doubt that theSecond Amendment guarantees an individual right.

On March 9, 2007, the DC Court of Appels decided (in Shelley Parker v. District of Columbia) that the right to keep and bear arms is an individual right, and therefore the District of Columbia can not bar law-abiding individuals from exercising their individual right to keep and bear arms. See www.saf.org/dc.lawsuit/parker.decision.pdf.

On October 16, 2001, the 5th Circuit Court of Appeals also ruled that the right of the people to keep and bear arms is an individual right. See http://www.publichealthlaw.net/Reader/docs/Emerson.pdf.

U.S. v. Nelson, 859 F.2d 1318 (8th Cir. 1988). This case isnot a firearms case; it involves the federal switchblade knife act. Based on the holding in U.S. v Cruikshank, 92 U.S. 542, 553(1876), that the right to keep and bear arms "is not a right grantedby the Constitution," the Eighth Circuit concluded that the right isnot fundamental. Of course, the statement in Cruikshank--acase which involved the theft of firearms by private citizens fromother private citizens--simply meant that the right was not createdby the Constitution, but that it preexisted the Constitution and thatthe Second Amendment was "to restrict the powers of the nationalgovernment, leaving the people to look for their protection againstany violation by their fellow-citizens of the rights it recognizes"to the state criminal laws.

Moreover, the Eighth Circuit's one paragraph opinion citedMiller, Oakes, infra, and Warin, infra, without anyexplanation, in holding that the Second Amendment has been analyzed"purely in term of protecting state militias, rather than individualrights. " While this statement is true, it certainly does not meanthat Miller rejected the conclusion that an individual rightwas protected. Thus, the Eighth Circuit did not err in concludingthat it was important that "Nelson has made no arguments that the Actwould impair any state militia .... "

U.S. v. Cody, 460 F.2d 34 (8th Cir. 1972). This caseinvolved the making of a false statement by a convicted felon inconnection with the purchase of a firearm. After citing Millerfor the propositions that "the Second Amendment is not an absolutebar to congressional regulation of the use or possession of firearms"and that the "Second Amendment's guarantee extends only to use orpossession which 'has some reasonable relationship to thepreservation or efficiency of a well-regulated militia,'" the courtheld that there was "no evidence that the prohibition of 922(a)(6)obstructs the maintenance of a well-regulated militia." Thus, thecourt acknowledged that the Second Amendment would be a bar to somecongressional regulation of the use or possession of firearms andrecognized that Miller required the introduction of evidencewhich showed a militia use for the firearm involved.

U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971). LikeSynnes, infra, the court here held that the defendant could"present ... evidence indicating a conflict" between the statute atissue and the Second Amendment. Since he failed to do so, the courtdeclined to hold that the record-keeping requirements of the GunControl Act of 1968 violated the Second Amendment. As withSynnes, the court once again implicitly recognized that theright guaranteed belonged to individuals.

U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated onother grounds, 404 U.S. 1009 (1972). This is another case involvingpossession of a firearm by a convicted felon. In holding that 18U.S.C. App. Section 1202(a) (reenacted in 18 U.S.C. 922(g) in 1986)did not infringe the Second Amendment, the court held (based upon itspartially erroneous view of Miller) that there needed to beevidence that the statute impaired the maintenance of awell-regulated militia. As there was "no showing that prohibitingpossession of firearms by felons obstructs the maintenance of a 'wellregulated militia,'" the court saw "no conflict" between 1202(a) andthe Second Amendment. While Miller focused on the need tointroduce evidence that the firearm had a militia use, Synnesat least recognized the relevance of a militia nexus. There was aclear recognition, moreover, that the Second Amendment guarantees anindividual right.

Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 1071(S.D. Ala. 1989), aff'd, 894 F.2d 412 (11th Cir. 1990) (mem). Thecourt held that the Second Amendment "guarantees to all Americans'the right to keep and bear arms'..."

U.S. v. Oakes, 564 F.2d 384 (1Oth Cir. 1977), cert. denied,435 U.S. 926 (1978). Although the court recognized the requirement ofMiller that the defendant show that the firearm in questionhave a "connection to the militia," the court concluded, without anyexplanation of how it reached the conclusion, that the mere fact thatthe defendant was a member of the Kansas militia would not establishthat connection. In light of the fact that Miller (whichdefines the militia as including "all males physically capable ofacting in concert for the common defense") saw no relevance in thestatus of a defendant with respect to the militia, but insteadfocused upon the firearm itself, this conclusion is not withoutbasis.

U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975). In thecontext of interpreting the meaning of the phrase "engaging in thebusiness of dealing in firearms" in 18 U.S.C. 922(a)(1), the courtnoted, in dicta, merely that "there is no absoluteconstitutional right of an individual to possess a firearm." Emphasisadded. Clearly, therefore, the court recognized that the right is anindividual one, albeit not an absolute one.

U.S. v. Johnson, 497 F.2d 548 (4th Cir. 1974). This is oneof the three court of appeals cases which uses the term "collectiveright." The entire opinion, however, is one sentence, which statesthat the Second Amendment "only confers a collective right of keepingand bearing arms which must bear a 'reasonable relationship to thepreservation or efficiency of a well- regulated militia'."4 As authority for this statement, the court cites Miller andCody v. U.S., supra. Yet, as the Supreme Court in Lewis,supra, made clear, Miller held that it is the firearmitself, not the act of keeping and bearing the firearm, which musthave a "reasonable relationship to the preservation or efficiency ofa well-regulated militia." The court did, however, recognize thatMiller required evidence of the militia nexus. Moreover, theparticular provision at issue in Johnson concerned theinterstate transportation of a firearm by convicted felons, a classof persons which historically has suffered the loss of numerousrights (including exclusion from the militia) accorded othercitizens.

U.S. v Bowdach, 414 F. Supp. 1346 (D.S. Fla 1976), aff'd,561 F.2d 1160 (5th Cir. 1977). The court held that "possession of theshotgun by a non-felon has no legal consequences. U.S. Const. AmendII."

U.S. v. Johnson. Jr., 441 F.2d 1134 (5th Cir. 1971). Onceagain, this decision merely quotes from Miller the statementconcerning the requirement of an evidentiary showing of a militianexus and a consequent rejection, without even the briefest ofanalysis, of the defendant's challenging to the constitutionality of the National Firearms Act of 1934 (NFA). Apparently, the defendantfailed to put on evidence, as required by Miller, that thefirearm at issue had a militia use. Thus, Miller bound theappeals court to reject the defendant's challenge.

Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir.1982), cert. denied, 464 U.S. 863 (1983). In rejecting a Second andFourteenth Amendment challenge to a village handgun ban, the courtheld that the Second Amendment, either of itself or by incorporationthrough the Fourteenth Amendment, "does not apply to the states..." The court, in dicta, went on, however, to "comment" on the"scope of the second amendment," incorrectly summarizingMiller as holding that the right extends "only to those armswhich are necessary to maintain a well regulated militia." Thus,finding (without evidence on the record) that "individually ownedhandguns [are not] military weapons," the court concludedthat "the right to keep and bear handguns is not guaranteed by thesecond amendment."

U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971). This isanother case involving the NFA in which the court merely followedMiller in holding that the NFA did not infringe the SecondAmendment.

Stevens v. United States, 440 F.2d 144 (6th Cir 1971). In aone sentence holding, the court simply concluded that the SecondAmendment "applies only to the right of the State to maintain amilitia and not to the individual's right to bear arms..." Merelyciting Miller as authority for this conclusion, the courtundertook no analysis of Miller or of the history of theratification of the Second Amendment. This case, moreover, involvedpossession of firearms by convicted felons, a class of persons whoseright traditionally have been more restricted than law-abidingcitizens.

U.S. v. Day, 476 F.2d 562 (6th Cir. 1973). CitingMiller, the court merely concluded, in reviewing a challengeto the statute barring dishonorably discharged persons frompossessing firearms, that "there is no absolute right of anindividual to possess a firearm." Emphasis added. Since there arecertain narrowly defined classes of untrustworthy persons, such asconvicted felons and, as here, persons dishonorably discharged fromthe armed forces, who may be barred the possession of firearms, it isa truism to say that there is not an absolute right to possessfirearms. In so saying, the court implicitly recognized theindividual right of peaceful and honest citizens to possessfirearm.

U S. v. Warin, 530 F.2d 103 (6th Cir 1976), cert. denied,426 U.S. 948 (1976). Following, and relying upon, its earlierdecision in Stevens, supra, the court simply concluded,without any reference to the history of the Second Amendment, that it"is clear the Second Amendment guarantees a collective rather than anindividual right." The court also indicated that, in reaching itsdecision, it was relying upon the First Circuit's decision inCases. infra. Yet in concluding that not all arms wereprotected by the Second Amendment, Cases did not hold, as didWarin, that the Second Amendment afforded individuals noprotections whatever. Warin also erred in concluding thatWarin's relationship to the militia was relevant todetermining whether his possession of a machine gun was protected bythe Second Amendment since the Supreme Court in Miller focusedon the firearm itself, not the individual involved. In fact,Miller quite expansively defined the constitutional militia asencompassing "all males physically capable of action in concert forthe common defense."

U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on othergrounds, 319 U.S. 463 (1943). This is another case involvingpossession of a firearm by a convicted felon. Despite holding thatthe failure of the defendant to prove, as required by Miller, a militia use for the firearm was an adequate basis for rulingagainst the defendant, the court, in dicta, concluded that the SecondAmendment "was not adopted with individual rights in mind..." Thisresult was based on reliance on an extremely brief--anderroneous--analysis of common law and colonial history. 5 In addition, apparently recognizing that it decided the case on unnecessarily broad grounds, the court noted that, at common law, while there was a right to bear arms, that right was not absolute and could be restricted for certain classes of persons "who havepreviously...been shown to be aggressors against society."

U.S. v. Graves, 554 F.2d 65 (3rd Cir. 1977). Since thedefendant in this case did not raise the Second Amendment as achallenge to the "statutory program which restricts the right to beararms of convicted felons and other persons of dangerous propensities," 6 the only discussion of the SecondAmendment is found in a bartnote wherein the court states"[a]rguably, any regulation of firearms may be violative ofthis constitutional provision."

Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert.denied sub nom., Velazquez v. U. S., 319 U.S. 770 (1943). Inthis case, the court held that the Supreme Court in Miller hadnot intended "to formulate a general rule" regarding which arms wereprotected by the Second Amendment and concluded, therefore, that many types of arms were not protected. Nonetheless, the court inCases expressly acknowledged that the Second Amendmentguarantees an individual right when it noted that the law in question"undoubtedly curtails to some extent the right of individualsto keep and bear arms..." Id. at 921. Emphasis added. Moreover, thecourt in Cases concluded, as properly it should have, thatMiller should not be read as holding that the Second Amendmentguaranteed the right to possess or use large weapons that could notbe carried by an individual.

U.S. v. Gross, 313 F.Supp. 1330 (S.D. Ind. 1970), aff'd onother grounds, 451 F.2d 1355 (7th Cir. 1971). In rejecting achallenge to the constitutionality of the requirement that those whoengage in the business of dealing in firearms must be licensed, thecourt, following its view of Miller, held that the defendanthad not shown that "the licensing of dealers in firearms in any waydestroys, or impairs the efficiency of, a well regulatedmilitia."

U.S. v. Kraase, 340 F.Supp. 147 (E.D. Wis. 1972). In rulingon a motion to dismiss an indictment, the court rejected a facialconstitutional challenge to 18 U.S.C. 922(a)(5) -- which prohibitedsales of firearms to residents of other states. Recognizing that anindividual right was protected, it held that "second amendmentprotection might arise if proof were offered at the trialdemonstrating that his possession of the weapon in question had areasonable relationship to the maintenance of a 'well-regulatedMilitia.'"

Thompson v. Dereta, 549 F.Supp. 297 (D. Utah 1982). Anapplicant for relief from disabilities (a prohibited person) broughtan action against the federaI agents involved in denying hisapplication. The court dismissed the case, holding that, becausethere was no "absolute constitutional right of an individual topossess a firearm," there was "no liberty or property interestsufficient to give rise to a procedural due process claim."

Vietnamese Fishermen's Assoc. v. KKK, 543 F.Supp. 198 (S.D.Tex. 1982). Like the statute faced by the Supreme Court in Presserv. Illinois, 116 U.S. 252 (1876), the Texas statute and theinjunction at issue here prohibited private military activity. Mischaracterizing Miller, the court held that the SecondAmendment "prohibits only such infringement on the bearing of weaponsas would interfere with 'the preservation or efficiency of awell-regulated militia,' organized by the State." Later, however, thecourt, following Miller, explained that the "SecondAmendment's guarantee is limited to the right to keep and bear sucharms as have 'a reasonable relationship to the preservation orefficiency of a well regulated militia.'" The courts's understandingof the Second Amendment is thus inconsistent and, given the facts ofthe case, largely dicta.

U.S. v. Kozerski, 518 F.Supp. 1082 (D.N.H. 1981), cert.denied, 469 U.S. 842 (1984). In the context of a challenge to the lawprohibiting the possession of firearms by convicted felons; thecourt, while holding correctly (see discussion of Nelson,supra) that the Second Amendment "is not a grant of a right but alimitation upon the power of Congress and the national government,"concluded that the right "is a collective right... rather that anindividual right," citing only Warin, supra. As a districtcourt in the First Circuit, however, the court was bound by Cases,supra, which expressly recognized that the right belonged toindividuals.

THE RIGHT TO KEEP AND BEAR ARMS:
COURT DECISIONS VOIDING RESTRICTED OR PROHIBITED ARMS LAWS

Courts have held on at least 20 reported occasions that arestrictive or prohibitive arms law was unconstitutional because itimpermissibly infringed the individual right to keep and beararms.

State ex rel. City of Princeton v. Buckner,
180 W.Va. 457, 377 S.E.2d 139 (1988)
Struck down a gun carrying law as too restrictive

Barnett v. State,
72 Or. App. 585, 695 P. 2d 991 (1985)
Struck down prohibition of possession of a black jack

State v. Deloado,
298 Or. 395, 692 P. 2d 610 (1984)
Struck down prohibition of possession of a switchblade

State v. Blocker,
291 Or. 255, 630 P.2d 824 (1981)
Struck down prohibition of carrying a club

State v. Kessler,
289 Or. 359, 614 P. 2d 94 (1980)
Struck down prohibition of possession of a club

City of Lakewood v. Pillow,
180 Colo. 20, 501 P.2d 744 (1972)(en banc)
Struck down gun law on sale, possession and carrying as toorestrictive

City of Las Vegas v. Moberg,
82 N.M. 626, 485 P. 2d 737 (Ct. App. 1971)
Struck down restrictive gun carrying law

People v. Nakamura,
99 Colo. 262, 62 P.2d 246 (1936)(en banc)
Struck down prohibitive firearms possession law

Glasscock v. City of Chattanooga,
157 Tenn. 518, 11 S.W. 2d 678 (1928)
Struck down gun carrying law as too restrictive

People v. Zerillo,
219 Mich. 635, 189 N.W. 927 (1922)
Struck down restrictive pistol possession law

State v. Kerner,
181 N.C. 574, 107 S.E. 222 (1921)
Struck down pistol carrying license and bond requirement as toorestrictive

In re Reilly,
31 Ohio Dec. 364 (C.P. 1919)
Struck down law forbidding hiring armed security guards

State v. Rosenthatl,
75 Vt. 295, 55 A 610 (1903)
Struck down pistol carrying ordinance as too restrictive

In re Brickey,
8 Idaho 587, 70 P. 609 (1902)
Struck down pistol carrying law as too restrictive

Jennings v. State,
5 Tex. App. 298 (1878)
Struck down law requiring forfeiture of pistol after misdemeanorconviction as unconstitutional

Wilson v. State,
33 Ark. 557, 34 Am. Rep. 52 (1878)
Struck down pistol carrying law as too restrictive

Andrews v. State,
50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871)
Struck down pistol carrying law as too restrictive

Smith v. Ishenhour,
43 Term. (3 Cold.) 214 (1866)
Struck down gun confiscation law as unconstitutional

Nunn v. State,
1 Ga. (1 Kelly) 243 (1846)
Struck down pistol carrying law as too restrictive

Bliss v. Commonwealth,
12 Ky. (2 Litt.) 90, 13 Am. Dec. 251 (1822)
Struck down concealed carrying law involving a sword in a cane asunconstitutional

--------------

1 According to Art. I, Sec. 8, cl. 15 of theConstitution, the functions of the militia are: "to execute the Lawsof the Union, suppress Insurrections, and repel Invasions...." Thus,the militia has a law enforcement function, a quasi lawenforcement/quasi military function, and a military function. As aresult, those firearms which are "arms" within the meaning of theSecond Amendment are those which could be used to fulfill any ofthese functions.

2 Thus, when combined with the militia test--see bartnote 1--it is clear that cannons, trench mortars, rockets,missiles, antitank weapons (such as bazookas), and bombs would not be"arms" within the meaning of the Second Amendment.

3 Of the 13 federal courts of appeals, 8 havespoken on the Second Amendment, half holding that the rightguaranteed is not an individual right, half holding that it is anindividual right; one circuit has gone both ways. The remaining fourhave been silent. All of these cases, however, preceded the SupremeCourt's decision in U.S. v. Verdugo Urquidez. (Note -- this was written before the 5th Appeals court in 2001 and the DC Appeals court in 2007.)

4 As with all rights guaranteed in the Bill ofRights, the Second Amendment does not "confer" any rights; it merelyprotects rights from government interference.

5 For example, the court referred to thecolonists as "a defenseless citizenry..." In fact, it was preciselybecause the citizens did have arms and were not defenseless that theydesired the Second Amendment; they did not want to becomedefenseless.

6 Implicit in this language is the fact that the Second Amendment guarantees an individual right, albeit a right that may not be enjoyed by some narrowly defined class of untrustworthy persons.