-=U.S. Supreme Court Cases=-
United States v. Cruikshank, 92 U.S. 542 (1876). This was the
first case in which the Supreme Court had the opportunity to
interpret the Second Amendment. The Court recognized that the
right of the people to keep and bear arms was a right which
existed prior to the Constitution when it stated that such a
right "is not a right granted by the Constitution . . . [n]either
is it in any manner dependent upon that instrument for its
existence." The indictment in Cruikshank charged, inter alia, a
conspiracy by Klansmen to prevent blacks from exercising their
civil rights, including the bearing of arms for lawful purposes.
The Court held, however, that because the right to keep and bear
arms existed independent of the Constitution, and the Second
Amendment guaranteed only that the right shall not be infringed
by Congress, the federal government had no power to punish a
violation of the right by a private individual; rather, citizens
had "to look for their protection against any violation by their
fellow-citizens" of their right to keep and bear arms to the
police power of the state.
Presser v. Illinois, 116 U.S. 252 (1886). Although the Supreme
Court affirmed the holding in Cruikshank that the Second
Amendment, standing alone, applied only to action by the federal
government, it nonetheless found the states without power to
infringe upon the right to keep and bear arms, holding that "the
States cannot, even laying the constitutional provision in
question out of view, prohibit the people from keeping and
bearing arms, as so 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."
Presser, moreover, plainly suggested that the Second Amendment
applies to the states through the Fourteenth Amendment and thus
that a state cannot forbid individuals to keep and bear arms. To
understand why, it is necessary to understand the statutory
scheme the Court had before it.
The statute under which Presser was convicted did not forbid
individuals to keep and bear arms but rather forbade "bodies of
men to associate together as military organizations, or to drill
or parade with arms in cities and towns unless authorized by law
. . . ." Thus, the Court concluded that the statute did not
infringe the right to keep and bear arms.
The Court, however, went on to discuss the Privileges and
Immunities Clause of the Fourteenth Amendment, noting that "[i]t
is only the privileges and immunities of citizens of the United
States that the clause relied on was intended to protect." As
the Court had already held that the substantive right to keep and
bear arms was not infringed by the Illinois statute since that
statue did not prohibit the keeping and bearing of arms but
rather prohibited military-like exercises by armed men, the Court
concluded that it did not need address the question of whether
the state law violated the Second Amendment as applied to the
states by the Fourteenth Amendment.
Miller v. Texas, 153 U.S. 535 (1894). In this case, the Court
confirmed that it had never addressed the issue of the Second
Amendment 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 pistols as
violative of the Second, Fourth, and Fourteenth Amendments. But
he asserted these arguments for the first time after his
conviction had been affirmed by a state appellate court.
Reiterating Cruikshank and Presser, the Supreme Court first found
that the Second and Fourth Amendments, of themselves, did not
limit state action. The Court then turned to the claim that the
Texas statute violated the rights to bear arms and against
warrantless searches as incorporated in the Fourteenth Amendment.
But because the Court would not hear objections not made in a
timely fashion, the Court refused to consider Miller's
contentions. Thus, rather than reject incorporation of the Second
and Fourth Amendments in the Fourteenth, the Supreme Court merely
refused to decide the defendant's claim because its powers of
adjudication were limited to the review of errors timely assigned
in the trial court. The Court left open the possibility that the
right to keep and bear arms and freedom from warrantless searches
would apply to the states through the Fourteenth Amendment.
U.S. v. Miller, 307 U.S. 174 (1939). This is the *only* case
in which the Supreme Court has had the opportunity to apply the
Second Amendment to a federal firearms statute. The Court,
however, carefully avoided making an unconditional decision
regarding the statute's constitutionality; it instead devised a
test by which to measure the constitutionality of statutes
relating to firearms and remanded the case to the trial court for
an evidentiary hearing (the trial court had held that Section 11
of the National Firearms Act was unconstitutional). The Court
remanded to the case because it had concluded 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 be
constitutionally protected, the firearm should be a militia-type
arm.
The case also made clear that the militia consisted of "all
males physically capable of acting in concert for the common
defense" and that "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." In setting forth this definition
of the militia, the Court implicitly rejected the view that the
Second Amendment guarantees a right only to those individuals who
are members of the militia. Had the Court viewed the Second
Amendment as guaranteeing the right to keep and bear arms only to
"all males physically capable of acting in concert for the common
defense," it would certainly have discussed whether, on remand,
there should also be evidence that the defendants met the
qualifications for inclusion in the militia, much as it did with
regard to the militia use of a short-barrelled shotgun.
Lewis v. United States, 445 U.S. 95 (1980). Lewis recognized
-- in summarizing the holding of Miller, supra, as "the Second
Amendment guarantees no right to keep and bear a firearm that
does not have 'some reasonable relationship to the preservation
or efficiency of a well-regulated militia'" (emphasis added) --
that Miller had focused upon the type of firearm. Further, Lewis
was concerned only with whether the provision of the Omnibus
Crime Control and Safe Streets Act of 1968 which prohibits the
possession of firearms by convicted felons (codified in 18 U.S.C.
922(g) in 1986) violated the Second Amendment. Thus, since
convicted felons historically were and are subject to the loss of
numerous fundamental rights of citizenship -- including the right
to vote, hold office, and serve on juries -- it was not erroneous
for the Court to have concluded that laws prohibiting the
possession of firearms by a convicted felon "are neither based
upon constitutionally suspect criteria, nor do they trench upon
any constitutionally protected liberties."
United States v. Verdugo-Urquirdez, 110 S. Ct. 3039 (1990).
This case involved the meaning of the term "the people" in the
Fourth Amendment. The Court unanimously held that the term "the
people" in the Second Amendment had the same meaning as in the
Preamble to the Constitution and in the First, Fourth, and Ninth
Amendments, i.e., that "the people" means at least all citizens
and legal aliens while in the United States. This case thus
resolves any doubt that the Second Amendment guarantees an
individual right.
-=U.S. Courts of Appeals Cases=-
U.S. v. Nelson, 859 F.2d 1318 (8th Cir. 1988). This case is
not 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
granted by the Constitution," the Eighth Circuit concluded that
the right is not fundamental. Of course, the statement in
Cruikshank -- a case which involved the theft of firearms by
private citizens from other private citizens -- simply meant that
the right was not created by the Constitution, but that it
preexisted the Constitution and that the Second Amendment was "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 state
criminal laws. Moreover, the Eighth Circuit's one paragraph
opinion cited Miller, Oakes, infra, and Warin, infra, without any
explanation, in holding that the Second Amendment has been
analyzed "purely in term of protecting state militias, rather
than individual rights." While this statement is true, it
certainly does not mean that Miller rejected the conclusion that
an individual right was protected. Thus, the Eighth Circuit did
not err in concluding that it was important that "Nelson has made
no arguments that the Act would impair any state militia . . . .
"
*
U.S. v. Cody, 460 F.2d 34 (8th Cir. 1972). This case involved
the making of a false statement by a convicted felon in
connection with the purchase of a firearm. After citing Miller
for the propositions that "the Second Amendment is not an
absolute bar to congressional regulation of the use or possession
of firearms" and that the "Second Amendment's guarantee extends
only to use or possession which 'has some reasonable relationship
to the preservation or efficiency of a well-regulated militia,'"
the court held that there was "no evidence that the prohibition
of 922(a)(6) obstructs the maintenance of a well-regulated
militia." Thus, the court acknowledged that the Second Amendment
would be a bar to some congressional regulation of the use or
possession of firearms and recognized that Miller required the
introduction of evidence which showed a militia use for the
firearm involved.
*
U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971). Like Synnes,
infra, the court here held that the defendant could "present ...
evidence indicating a conflict" between the statute at issue and
the Second Amendment. Since he failed to do so, the court
declined to hold that the record-keeping requirements of the Gun
Control Act of 1968 violated the Second Amendment. As with
Synnes, the court once again implicitly recognized that the right
guaranteed belonged to individuals.
U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other
grounds, 404 U.S. 1009 (1972). This is another case involving
possession of a firearm by a convicted felon. In holding that 18
U.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 its partially erroneous view of Miller) that there
needed to be evidence that the statute impaired the maintenance
of a well- regulated militia. As there was "no showing that
prohibiting possession of firearms by felons obstructs the
maintenance of a 'well regulated militia,'" the court saw "no
conflict" between 1202(a) and the Second Amendment. While Miller
focused on the need to introduce evidence that the firearm had a
militia use, Synnes at least recognized the relevance of a
militia nexus. There was a clear recognition, moreover, that the
Second Amendment guarantees an individual 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). The
court held that the Second Amendment "guarantees to all Americans
'the right to keep and bear arms' . . . . "
U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied,
435 U.S. 926 (1978). Although the court recognized the
requirement of Miller that the defendant show that the firearm in
question have a "connection to the militia," the court concluded,
without any explanation of how it reached the conclusion, that
the mere fact that the defendant was a member of the Kansas
militia would not establish that connection. In light of the fact
that Miller (which defines the militia as including "all males
physically capable of acting in concert for the common defense")
saw no relevance in the status of a defendant with respect to the
militia, but instead focused upon the firearm itself, this
conclusion is not without basis.
U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975). In the
context of interpreting the meaning of the phrase "engaging in
the business of dealing in firearms" in 18 U.S.C. 922(a)(1), the
court noted, in dicta, merely that "there is no absolute
constitutional right of an individual to possess a firearm."
Emphasis added. Clearly, therefore, the court recognized that the
right is an individual one, albeit not an absolute one.
U.S. v. Johnson, 497 F.2d 548 (4th Cir. 1974). This is one of
the three court of appeals cases which uses the term "collective
right." The entire opinion, however, is one sentence, which
states that the Second Amendment "only confers a collective right
of keeping and bearing arms which must bear a 'reasonable
relationship to the preservation or efficiency of a
well-regulated militia'." As authority for this statement, the
court cites Miller and Cody v. U.S., supra. Yet, as the Supreme
Court in Lewis, supra, made clear, Miller held that it is the
firearm itself, not the act of keeping and bearing the firearm,
which must have a "reasonable relationship to the preservation or
efficiency of a well-regulated militia." The court did, however,
recognize that Miller required evidence of the militia nexus.
Moreover, the particular provision at issue in Johnson concerned
the interstate transportation of a firearm by convicted felons, a
class of persons which historically has suffered the loss of
numerous rights (including exclusion from the militia) accorded
other citizens.
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 the
shotgun by a non-felon has no legal consequences. U.S. Const.
Amend II."
U.S. v. Johnson, Jr., 441 F.2d 1134 (5th Cir. 1971). Once
again, this decision merely quotes from Miller the statement
concerning the requirement of an evidentiary showing of a militia
nexus and a consequent rejection, without even the briefest of
analysis, of the defendant's challenging to the constitutionality
of the National Firearms Act of 1934 (NFA). Apparently, the
defendant failed to put on evidence, as required by Miller, that
the firearm at issue had a militia use. Thus, Miller bound the
appeals 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
and Fourteenth Amendment challenge to a village handgun ban, the
court held that the Second Amendment, either of itself or by
incorporation through 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
summarizing Miller as holding that the right extends "only to
those arms which are necessary to maintain a well regulated
militia." Thus, finding (without evidence on the record) that
"individually owned handguns [are not] military weapons," the
court concluded that "the right to keep and bear handguns is not
guaranteed by the second amendment."
U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971). This is
another case involving the NFA in which the court merely followed
Miller in holding that the NFA did not infringe the Second
Amendment.
Stevens v. United States, 440 F.2d 144 (6th Cir 1971). In a
one sentence holding, the court simply concluded that the Second
Amendment "applies only to the right of the State to maintain a
militia and not to the individual's right to bear arms ...."
Merely citing Miller as authority for this conclusion, the court
undertook no analysis of Miller or of the history of the
ratification of the Second Amendment. This case, moreover,
involved possession of firearms by convicted felons, a class of
persons whose right traditionally have been more restricted than
law-abiding citizens.
U.S. v. Day, 476 F.2d 562 (6th Cir. 1973). Citing Miller, the
court merely concluded, in reviewing a challenge to the statute
barring dishonorably discharged persons from possessing firearms,
that "there is no *absolute* right of an individual to possess a
firearm." Emphasis added. Since there are certain narrowly
defined classes of untrustworthy persons, such as convicted
felons and, as here, persons dishonorably discharged from the
armed forces, who may be barred the possession of firearms, it is
a truism to say that there is not an absolute right to possess
firearms. In so saying, the court implicitly recognized the
individual right of peaceful and honest citizens to possess
firearm.
U.S. v. Warin, 530 F.2d 103 (6th Cir 1976), cert. denied, 426
U.S. 948 (1976). Following, and relying upon, its earlier
decision 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 an
individual right." The court also indicated that, in reaching its
decision, it was relying upon the First Circuit's decision in
Cases, infra. Yet in concluding that not all arms were protected
by the Second Amendment, Cases did not hold, as did Warin, that
the Second Amendment afforded individuals no protections
whatever. Warin also erred in concluding that Warin's
relationship to the militia was relevant to determining whether
his possession of a machine gun was protected by the Second
Amendment since the Supreme Court in Miller focused on the
firearm itself, not the individual involved. In fact, Miller
quite expansively defined the constitutional militia as
encompassing "all males physically capable of action in concert
for the common defense."
U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on other
grounds, 319 U.S. 463 (1943). This is another case involving
possession of a firearm by a convicted felon. Despite holding
that the failure of the defendant to prove, as required by
Miller, a militia use for the firearm was an adequate basis for
ruling against the defendant, the court, in dicta, concluded that
the Second Amendment "was not adopted with individual rights in
mind . . . ." This result was based on reliance on an extremely
brief -- and erroneous -- analysis of common law and colonial
history. 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 have previously . . . been shown to be aggressors
against society."
U.S. v. Graves, 554 F.2d 65 (3rd Cir. 1977). Since the
defendant in this case did not raise the Second Amendment as a
challenge to the "statutory program which restricts the right to
bear arms of convicted felons and other persons of dangerous
propensities," the only discussion of the Second Amendment is
found in a footnote wherein the court states "[a]rguably, any
regulation of firearms may be violative of this 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). In this
case, the court held that the Supreme Court in Miller had not
intended "to formulate a general rule" regarding which arms were
protected by the Second Amendment and concluded, therefore, that
many types of arms were not protected. Nonetheless, the court in
Cases expressly acknowledged that the Second Amendment guarantees
an individual right when it noted that the law in question
"undoubtedly curtails to some extent the right of individuals to
keep and bear arms ...." Id. at 921. Emphasis added. Moreover,
the court in Cases concluded, as properly it should have, that
Miller should not be read as holding that the Second Amendment
guaranteed the right to possess or use large weapons that could
not be carried by an individual.
-=U.S. District Court Cases=-
U.S. v. Gross, 313 F.Supp. 1330 (S.D. Ind. 1970), aff'd on
other grounds, 451 F.2d 1355 (7th Cir. 1971). In rejecting a
challenge to the constitutionality of the requirement that those
who engage in the business of dealing in firearms must be
licensed, the court, following its view of Miller, held that the
defendant had not shown that "the licensing of dealers in
firearms in any way destroys, or impairs the efficiency of, a
well regulated militia."
U.S. v. Kraase, 340 F.Supp. 147 (E.D. Wis. 1972). In ruling on
a motion to dismiss an indictment, the court rejected a facial
constitutional challenge to 18 U.S.C. 922(a)(5) -- which
prohibited sales of firearms to residents of other states.
Recognizing that an individual right was protected, it held that
"second amendment protection might arise if proof were offered at
the trial demonstrating that his possession of the weapon in
question had a reasonable relationship to the maintenance of a
'well-regulated Militia.'"
Thompson v. Dereta, 549 F.Supp. 297 (D. Utah 1982). An
applicant for relief from disabilities (a prohibited person)
brought an action against the federal agents involved in denying
his application. The court dismissed the case, holding that,
because there was no "absolute constitutional right of an
individual to possess a firearm," there was "no liberty or
property interest sufficient 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
Presser v. Illinois, 116 U.S. 252 (1876), the Texas statute and
the injunction at issue here prohibited private military
activity. Mischaracterizing Miller, the court held that the
Second Amendment "prohibits only such infringement on the bearing
of weapons as would interfere with 'the preservation or
efficiency of a well- regulated militia,' organized by the
State." Later, however, the court, following Miller, explained
that the "Second Amendment's guarantee is limited to the right to
keep and bear such arms as have 'a reasonable relationship to the
preservation or efficiency of a well regulated militia.'" The
courts's understanding of the Second Amendment is thus
inconsistent and, given the facts of the 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 law
prohibiting the possession of firearms by convicted felons, the
court, while holding correctly (see discussion of Nelson, supra)
that the Second Amendment "is not a grant of a right but a
limitation upon the power of Congress and the national
government," concluded that the right "is a collective right . .
. rather that an individual right," citing only Warin, supra. As
a district court in the First Circuit, however, the court was
bound by Cases, supra, which expressly recognized that the right
belonged to individuals.
-=End=-