99. APPENDIX V - The U.S. Supreme Court and the Second Amendment (talk.politics.guns Official Pro-Gun FAQ)
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This article is from the talk.politics.guns Official Pro-Gun FAQ, by Ken Barnes (kebarnes@cc.memphis.edu) with numerous contributions by others.
99. APPENDIX V - The U.S. Supreme Court and the Second Amendment (talk.politics.guns Official Pro-Gun FAQ)
The U.S. Supreme Court, for most of its history, has had no
controversies brought before it dealing with the meaning of the
Second Amendment. Until the twentieth century, there were no "gun
control" laws at the federal level, and the state militias were
controlled at the state level, by the governors. As a result, the
history of Second Amendment jurisprudence by the U.S. Supreme Court
begins with Reconstruction, and the infringement of the civil rights
of black Americans, especially the emancipated slaves, by governments
of the former Confederacy, and by extralegal private racist groups
like the White League and the Ku Klux Klan. The decision of the
high court in the case of_U.S. v. Cruikshank_helped form the legal
foundation for official disregard of the Fourteenth Amendment,
and kept black Americans in a condition between slavery and freedom
for a century after Emancipation.
1875: "The United States vs. William J. Cruikshank, et al."
U.S. Reports v.92 pp.542, Lawyer's Edition v.23 p.588
Appellees in this case were indicted on June 16th, 1873 under
the Enforcement Act of 1870 on thirty-two counts, including "an
intent to hinder and prevent the exercise" by "two citizens of
the United States, 'of African descent and persons of color'"
of 'the right to keep and bear arms for a lawful purpose'".
Chief Justice Morrison R. Waite wrote for the majority that
"The right... specified" in the indictment "is that of 'bearing
arms for a lawful purpose.' This is not a right granted by the
Constitution. Neither is it in any manner dependent upon that
instrument for its existence." The Second Amendment, Waite wrote,
"declares that it shall not be infringed; but this, as has been
seen, means no more than that it shall not be infringed by Congress.
This is one of the amendments that has no other effect than to
restrict the powers of the national government, leaving the people
to look for their protection against any violation by their fellow
citizens of the rights it recognizes" to the police powers of
the states and localities. [p. 553]
From this statement we see that the Court's view of the Second
Amendment in_Cruikshank_was that it is an individual right, capable
of being infringed upon by one's "fellow citizens," but that the
Second Amendment only protects against infringement of that right
by the federal government. The right to keep and bear arms, the
Court said, pre-dates the Constitution, and "is not dependent upon
that instrument for its existence."
A decade passed before the high court again addressed the issue
of the Second Amendment.
1886: "Herman Presser vs. The State of Illinois"
U.S. Reports v.116 p.252, Supreme Court Reports v.6 p.580,
Lawyer's Edition v.29 p.615
Apellee in this case was indicted on September 24, 1879 for
violating an Illinois state law which prohibited "any body of
men whatever, other than the regular organized volunteer militia
of this State, and the troops of the United States, to associate
themselves together as a military company or organization, or to
drill or parade with arms in any city, or town, of this State,
without the license of the Governor thereof..."
Justice William B Woods, writing for the majority, addressed
apellees' argument that the Illinois statute violated the Second
Amendment: "We think it clear that the sections under consideration,
which only forbid bodies of men to associate together as military
organizations, or to drill or parade with arms in cities and towns
unless authorized by law, do not infringe the right of the people
to keep and bear arms. But a conclusive answer to the contention
that this amendment prohibits the legislation in question lies in
the fact that the amendment is a limitation only upon the power
of Congress and the National government, and not upon that of the
States." Woods went on to cite the_Cruikshank_decision, among
others, as precedent. "It is undoubtedly true" Woods continued,
"that all citizens capable of bearing arms constitute the reserved
military force or reserve militia of the United States as well as
of the States, and in view of this prerogative of the general
government, as well as of its general powers, the States cannot,
even laying the constitutional provision in question out of view,
prohibit the people from keeping and bearing arms, so as to deprive
the United States of their rightful resource for maintaining the
public security, and disable the people from performing their
duty to the general government." [pp. 264-265]
Thus, according to the Supreme Court in_Presser,"states may
restrict private military organizations without violating the
right of the people to keep and bear arms. The Court in_Presser"
repeated their argument from_Cruikshank_that the Second Amendment
is only a limitation on the power of the Federal government, and
not the states. However, the majority speculated that the Federal
government's power over the state militia prohibited state laws
which disarmed ordinary citizens of the means to carry out their
militia duties.
If the Second Amendment only serves to protect the right of
the people to keep and bear arms against the depredations of
the Federal government, what of the constitutionality of federal
"gun control" laws? The National Firearms Act of 1934 was passed
to restrict the availability of "gangster weapons" like machineguns
and sawed-off shotguns, and just a few years later, the Court heard
the appeal of the United States resulting from a dismissed indictment
under the Act, which was the first major "gun control" law at the
federal level.
1939: "The United States vs. Jack Miller, et al."
U.S. Reports v.307 p.174, Supreme Court Reports v.59 p.816,
Lawyer's Edition v.83 p.1206
The U.S. District Court of the Western District of Arkansas,
on January 3, 1939 dismissed the indictment of Jack Miller and Frank
Layton under the National Firearms Act, declaring in part that the Act
"offends the inhibition of the Second Amendment to the Constitution".
Miller and Layton had been indicted for transporting a short-barreled
shotgun from Claremore, OK to Siloam Springs, AR without registering
the weapon and obtaining the $200 transfer tax stamp as required by law.
The United States appealed the U.S. District Court's decision directly
to the Supreme Court because the constitutionality of the law was
at issue.
The Supreme Court heard only the government's side of the case,
since Miller and Layton were not represented before the Court. In
the majority opinion, Justice James C. McReynolds wrote: "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." [p. 178] McReynolds
cited "Aymette v. State,"Tennessee Reports v.21 (2 Humphreys) p.154
(1840) which defined "arms" as "the ordinary military equipment."
Consequently, the Supreme Court reversed the District Court's
decision, and reinstated the indictment.
The Second Amendment, wrote McReynolds, had the "obvious purpose
to assure the continuation and render possible the effectiveness"
of the militia, and "[i]t must be interpreted with that end in view."
The militia, "comprised all males physically capable of acting in
concert for the common defense... And further, that ordinarily when
called for service these men were expected to appear bearing arms
supplied by themselves and of the kind in common use at the time."
McReynolds also noted that "[m]ost if not all of the states have
adopted provisions touching the right to keep and bear arms." [p. 182]
The Court in_Miller_did not make an issue of the defendants'
status as members of the militia, but rather focused on the
applicability of a short-barreled shotgun for militia use, and
particularly whether the statute in question, which taxed "gangster
weapons," was an unconstitutional extension of federal power, as the
lower court had contended. "In the absence of evidence" having been
presented that such a weapon was "part of the ordinary military
equipment," the court was compelled "at this time" not to draw any
conclusions. The Court again implied that the Second Amendment
protects an individual right against the infringement of federal
power, but the Court was willing to give the government the benefit
of the doubt in this case. The Court's recognition of_Aymette_is
particularly interesting, since it implies that "arms" in the
wording of the Second Amendment means "the ordinary military
equipment," and that the ownership of military-type weapons is
particularly well protected under the Amendment. The Court's
reference to the state constitutional guarantees of the right to
keep and bear arms is also interesting, since it implies some
equivalence between the right protected under the Second Amendment,
and the right protected by the similar state provisions, something
that cannot be reconciled with the idea that the Second Amendment
recognizes a right of the state militias not to be disarmed. The
militia, as McReynolds points out, comprises_at least""all males
physically capable of acting in concert for the common defense,"
and the definition of "the people" in the Bill of Rights is today
even broader.
With rising violent crime rates since the 1960s, more and more
federal "gun control" laws have been added to the books, but no
cases have yet reached the Supreme Court to challenge these laws
on a Second Amendment basis. A number of Second Amendment appeals
have be denied by the high court, allowing some poorly researched
lower court decisions to stand, and these form the foundation of
many lower court decisions construing the Second Amendment as
protecting only a right of the state militias. The most prominent
examples are: "Tot vs. United States,"Federal Reports 2nd series
v.131 p.261 (1942), and_Cases v. United States,"Federal Reports 2nd
series v.131 p.916 (1942). Dicta (commentary) in some recent
Supreme Court decisions gives insight into the Court's contemporary
view of the Second Amendment, and though these cases do not have
any substantive weight in the Court's Second Amendment jurisprudence,
such statements may be worthwhile to refer to.
1980: "Lewis vs. United States"
Supreme Court Reports v.100 p.915, United States Reports v.445 p.55,
Lawyer's Edition 2nd series v.63 p.798
"Lewis_concerned an appeal of a weapons conviction under the
1968 Omnibus Crime Control and Safe Streets Act by a previously
convicted felon who was not represented by counsel at the
earlier trial. As a footnote, Justice Harry Blackmun volunteered
that "[t]hese legislative restrictions on the use of firearms
are neither based upon constitutionally suspect criteria, nor
do they trench upon any constitutionally protected liberties."
[p. 65] Blackmun cited_Miller,"as well as several lower court
cases upholding various parts of the 1968 law. Of course, the
fact that a felon may be deprived of the right to keep and bear
arms (as a result of due process of law) has no bearing on whether
an ordinary citizen has a right to keep and bear arms which must
be respected by government.
1990: "Perpich vs. Department of Defense"
Supreme Court Reports v.110 p.2418, United States Reports v.496 p.334,
Lawyer's Edition 2nd series v.110 p.312
Governor Rudy Perpich of Minnesota sued to prevent the state's
National Guard units from being federalized and sent out of the
United States to train in Central America in 1987. The opinion
of the Court, delivered by Justice John Paul Stevens, noted that
the Federal Government retains supremacy over the states "in the
area of military affairs. The Federal Government provides virtually
all of the funding, the materiel, and the leadership for the State
Guard units. The Minnesota unit, which includes about 13,000
members, is affected only slightly when a few dozen, or at most
a few hundred, soldiers are ordered into active service for brief
periods of time." Congress, the Court said, has provided that if
a federal mission were to interfere with the Guard's response to
local emergencies, the Governor could veto the proposed mission.
Additionally, as long as there is a provision in the law for a
state to maintain its own defense force at its own expense,
"there is no basis for an argument" that the present militia
system deprives a state of having its own militia. [p.328-329]
1990: "United States vs. Verdugo-Urquidez"
Supreme Court Reports v.110 p.1056, United States Reports v.494 p.259,
Lawyer's Edition 2nd series v.108 p.222
The appellee was a Mexican citizen who attempted to argue that
the Fourth Amendment's protections against unreasonable searches and
seizures apply to seizures of foreign-owned property by U.S. agents
operating in a foreign country. Chief Justice William Rehnquist,
in writing for the majority, described "the people" in the Fourth
Amendment as "a term of art" used in the text of the Constitution
(as in the Second Amendment) to refer to "a class of persons who
are part of a national community or who have otherwise developed
sufficient connection with this country to be considered part of
that community." [p.232-233] The basis of the appeal was rejected,
since at the time of the search, the appellee "was a citizen and
resident of Mexico with no voluntary attachment to the United States,
and the place searched was in Mexico." [p.239]
1997: "Printz vs. United States"
Supreme Court Reports v.117 p.2365, United States Reports v."_" p."_",
Lawyer's Edition 2nd series v.138 p.914
Justice Clarence Thomas' concurring opinion in this case, which
found unconstitutional the federal mandate for local law enforcement
officers to perform Brady Act background checks, contains some hints
about the kind of cases the Court, or at least Justice Thomas, expects
in the future. In an extensive aside, Thomas observes that, like the
First Amendment, "[t]he Second Amendment similarly appears to contain
an express limitation on the government's authority." The Court, he
writes, "has not had recent occasion to consider the nature of the
substantive right safeguarded by the Second Amendment. If, however,
the Second Amendment is read to confer a personal right to 'keep and
bear arms,' a colorable argument exists that the Federal Government's
regulatory scheme, at least as it pertains to the purely intrastate
sale or possession of firearms, runs afoul of that Amendment's
protections. Perhaps, at some future date, this Court will have the
opportunity to determine whether Justice Story was correct when he
wrote that the right to bear arms 'has justly been considered, as the
palladium of the liberties of a republic.'"
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