AMENDMENT II

Right to Bear Arms

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The Second Amendment, as passed by the House and Senate, reads:

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.

The copies distributed to the states, and then ratified by them, had different capitalization and punctuation:

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.

Both versions are commonly used in official government publications. The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and hangs in the National Archives.

The Second Amendment of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits Congress from infringement of "the right of the people to keep and bear arms."

Ratified:  December 15, 1791

Notes: Right to Bear Arms

Original Intent and Purpose of the Second Amendment

Introduction

The Second Amendment:

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.

The original intent and purpose of the Second Amendment was to preserve and guarantee, not grant, the pre-existing right of individuals to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia, let alone a well-regulated one, was not intended to serve as a prerequisite for exercising the right to keep arms.

The Second Amendment preserves and guarantees an individual right for a collective purpose. That does not transform the right into a "collective right." The militia clause was a declaration of purpose, and preserving the people's right to keep and bear arms was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.

There is no contrary evidence from the writings of the Founding Fathers, early American legal commentators, or pre-twentieth century Supreme Court decisions, indicating that the Second Amendment was intended to apply solely to active militia members.

Evidence of an Individual Right

In his popular edition of Blackstone's Commentaries on the Laws of England (1803), St. George Tucker (see also), a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.
In the appendix to the Commentaries, Tucker elaborates further:
This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
Not only are Tucker's remarks solid evidence that the militia clause was not intended to restrict the right to keep arms to active militia members, but he speaks of a broad right Tucker specifically mentions self-defense.

"Because '[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition,' the Supreme Court has cited Tucker in over forty cases. One can find Tucker in the major cases of virtually every Supreme Court era." (Source: The Second Amendment in the Nineteenth Century)

(William Blackstone was an English jurist who published Commentaries on the Laws of England, in four volumes between 1765 and 1769. Blackstone is credited with laying the foundation of modern English law and certainly influenced the thinking of the American Founders.)

Another jurist contemporaneous to the Founders, William Rawle, authored "A View of the Constitution of the United States of America" (1829). His work was adopted as a constitutional law textbook at West Point and other institutions. In Chapter 10 he describes the scope of the Second Amendment's right to keep and bear arms:

The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
This is another quote where it is obvious that "the people" refers to individuals since Rawle writes neither the states nor the national government has legitimate authority to disarm its citizens. This passage also makes it clear ("the prohibition is general") that the militia clause was not intended to restrict the scope of the right.

(In 1791 William Rawle was appointed United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years.)

Yet another jurist, Justice Story (appointed to the Supreme Court as an Associate Justice by James Madison in 1811), wrote a constitutional commentary in 1833 ("Commentaries on the Constitution of the United States"). Regarding the Second Amendment, he wrote (source):

The next amendment is: "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."

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

As the Tennessee Supreme Court in Andrews v. State (1871) explains, this "passage from Story, shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights."

Story adds:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Story laments the people's lack of enthusiasm for maintaining a well-regulated militia. However, some anti-gun rights advocates misinterpret this entire passage as being "consistent with the theory that the Second Amendment guarantees a right of the people to be armed only when in service of an organized militia." (See Arms, Anarchy and the Second Amendment for an example of reaching that conclusion by committing a non-sequitur.)

The need for a well-regulated militia and an armed citizenry are not mutually exclusive, nor was the right to have arms considered dependent on membership in an active militia (more on that later). Rather, as illustrated by Tucker, Rawle, and Story, the militia clause and the right to arms were intended to be complementary.

More Evidence Supporting an Individual Right

After James Madison's Bill of Rights was submitted to Congress, Tench Coxe (see also: Tench Coxe and the Right to Keep and Bear Arms, 1787-1823) published his "Remarks on the First Part of the Amendments to the Federal Constitution," in the Federal Gazette, June 18, 1789 He asserts that it's the people (as individuals) with arms, who serve as the ultimate check on government:

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.
"A search of the literature of the time reveals that no writer disputed or contradicted Coxe's analysis that what became the Second Amendment protected the right of the people to keep and bear 'their private arms.' The only dispute was over whether a bill of rights was even necessary to protect such fundamental rights." (Halbrook, Stephen P. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991).

Earlier, in The Pennsylvania Gazette, Feb. 20, 1788, while the states were considering ratification of the Constitution, Tench Coxe wrote:

Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.

The Federalist Papers

Alexander Hamilton in the Federalist, No. 29, did not view the right to keep arms as being confined to active militia members:

What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

James Madison in Federalist No. 46 wrote:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments,to which the people are attached, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Here, like Story, Madison is expressing the idea that additional advantages accrue to the people when the citizens' right to arms is enhanced by having an organized and properly directed militia.

The Federalist Papers Continued "The Original Right of Self-Defense"

The Founders realized insurrections may occur from time to time and it is the militia's duty to suppress them. They also realized that however remote the possibility of usurpation was, the people with their arms, had the right to restore their republican form of government by force, if necessary, as an extreme last resort.

"The original right of self-defense" is not a modern-day concoction. We now examine Hamilton's Federalist No. 28. Hamilton begins:

That there may happen cases in which the national government may be necessitated to resort to force cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government) has no place but in the reveries of these political doctors whose sagacity disdains the admonitions of experimental instruction.
Hamilton explains that the national government may occasionally need to quell insurrections and it is certainly justified in doing so.

Hamilton continues:

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
Hamilton clearly states there exists a right of self-defense against a tyrannical government, and it includes the people with their own arms and adds:
[T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!

Thus the militia is the ultimate check against a state or the national government. That is why the founders guaranteed the right to the people as opposed to only active militia members or a state's militia. But of course, via the militia clause, the Second Amendment acknowledges, as well, the right of a state to maintain a militia. (For more on militia see: http://guncite.com/gc2ndmea.html.)

Hamilton concludes, telling us the above scenario is extremely unlikely to occur:

 

When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.

Again, it is the recurring theme of the people's right to keep and bear arms as individuals, enhanced by a militia system, that (in part) provides for the "security of a free state."

Connecting the Dots...

 

"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. . . . "
--- The U.S. Supreme Court in Cohens v. Virginia (1821)

Although the Federalist Papers were written prior to the drafting of the Bill of Rights (but after the Constitution was sent to the states for ratification), the passages quoted, above, help explain the relationships that were understood between a well-regulated militia, the people, their governments, and the right to keep and bear arms. The Second Amendment did not declare or establish any new rights or novel principles.

The Purpose of the Militia Clause

 

"Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized." (U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999))

For more information about justification clauses see: Volokh, Eugene, The Commonplace Second Amendment, (73 NYU L. Rev. 793 (1998)). (See also, Kopel, David, Words of Freedom, National Review Online, May 16, 2001.)

Parting Shots

There are 3 ways the Second Amendment is usually interpreted to deny it was intended to protect an individual right to keep and bear arms:

Yet, three jurists, who were contemporaries of the Founders, and wrote constitutional commentaries, read the Second Amendment as protecting a private, individual right to keep arms. There is no contrary evidence from that period (see Guncite's Is there contrary evidence? and Second Amendment challenge).

Instead of the "right of the people," the Amendment's drafters could have referred to the militia or active militia members, as they did in the Fifth Amendment, had they meant to restrict the right. (Additionally, see GunCite's page here showing evidence that the term, "people," as used in the Bill of Rights, referred to people as individuals.)

It strains credulity to believe the aforementioned three jurists misconstrued the meaning of the Second Amendment.

The only model that comports with all of the evidence from the Founding period is the one interpreting the Second Amendment as protecting an individual right for a collective purpose. The militia clause and the right to keep and bear arms were intended to be complementary.

Perversely, gun rights defenders are accused of creating a Second Amendment myth, when it is some present-day jurists and historians who have failed to give a full account of the historical record.

(The assertion that the Second Amendment was intended to protect an individual right should not be confused with the claim that all gun control is un-constitutional. However, to read why many gun rights advocates oppose most gun controls, today, please see GunCite's, Misrepresenting the Gun Control Debate.)

 

Supreme Court Cases

 

Summary

The Supreme Court has heard only five cases directly related to the Second Amendment. They are: U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), U.S. v. Miller (1939), and Lewis v. U.S. (1980). One the Supreme Court refused to hear, Burton v. Sills (1968), and one concerning the meaning of the Fourth Amendment and "the people," U.S. v. Verdugo-Urquidez (1990), are also discussed. (Links to the Supreme Court decisions are provided at the end of each section.)

U.S. v. Cruikshank involved members of the Ku Klux Klan depriving black victims of their basic rights such as freedom of assembly and to bear arms. The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress. Thus the federal government had no power to correct these violations, rather the citizens had to rely on the police power of the states for their protection from private individuals.

This case is often misunderstood or quoted out of context by claiming Cruikshank held the Second Amendment does not grant a right to keep and bear arms. However, the court also said this about the First Amendment. The court explained that these rights weren't granted or created by the Constitution, they existed prior to the Constitution.

Presser v. Illinois ruled that the states had the right to strictly regulate private military groups and associations. It also reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon the federal government and not the states. However Presser also stated that setting the Second Amendment aside, the states could not prohibit the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."

Of the Second Amendment cases, U.S. v. Miller is the most mis-cited (intentionally and otherwise) by the lower courts, not to mention the news media, textbooks and encyclopedias. Some courts have acknowledged the true holdings of Miller, but then simply disregarded them. Though referenced again below, please don't forget to read how some courts deliberately mis-cite Miller.

U.S. v. Cruikshank (1876)

Cruikshank was the first Second Amendment case to reach the Supreme Court. This case is occasionally misrepresented as holding the Second Amendment does not protect an individual right to keep and bear arms. Typically, Cruikshank is cited out of context by claiming the court held the Second Amendment "is not a right granted by the Constitution." (For example, see U.S. v. Nelsen, 859 F.2d 1318 [8th Cir. 1988] or the ACLU of Massachusetts on the Second Amendment.)
 

What you are not told is that the same thing was said about the First Amendment and the Court considered these rights pre-existing, thus they are not granted by the Constitution.

Among the counts against Cruikshank et. al, were charges to deprive two blacks of their First and Second Amendment rights. Regarding the First Amendment charges the court stated:

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government... It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection...

The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone...

...For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

Similarly regarding the Second Amendment violations the court wrote:

The second and tenth counts are equally defective. The right there specified 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 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 what is called..."internal police."

In brief, following precedent, the court stated the Bill of Rights only applied as a limitation on the "National government." Individuals could not file charges against other citizens in federal court regarding violations of their constitutional rights. It was up to the states to protect the fundamental rights of its citizens when their rights were abridged by other citizens.

Complete text of U.S. v. Cruikshank, 92 U.S. 542 (1875).

Presser v. People of Illinois (1886)

Herman Presser was found guilty of parading a group of armed men without authorization in the state of Illinois. The defendant claimed Illinois law violated provisions in the Constitution including the Second Amendment. The Court ruled the states have the power to control and regulate military bodies, including drilling and parading activities. The Court re-affirmed that the Second Amendment applied as a limitation only on the national government and commented no further about it. However the court in dicta (a side opinion which does not form part of the judgment for the purposes of precedent [stare decisis] ) wrote:

It is undoubtedly true 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 [the Second Amendment] 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.

Thus, the Presser court expressed the opinion that the states were prohibited from disarming "all citizens capable of bearing arms" because it conflicted with the federal government's right ("prerogative") to a reserve military force and the militia powers granted to Congress by the Constitution ("general powers" refers to Article I, section 8, clauses 15 and 16 of the Constitution).

Complete text of Presser v. Illinois, 116 U.S. 252 (1886).

Miller v. Texas (1894)

Franklin Miller, convicted of murder, on appeal, claimed his Second and Fourth Amendment rights had been violated under the Fourteenth Amendment. The court upholding the conviction, reaffirmed Cruikshank v. U.S. and stated: "And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court." In other words the court wouldn't even consider whether Miller's rights had been violated under the Fourteenth Amendment because he had not filed such a claim in his original trial.

Complete text of Miller v. Texas, 153 U.S. 535 (1894).

U.S. v. Miller (1939)

Frank Layton and Jack Miller were charged with violating the 1934 National Firearms Act, which regulated and taxed the transfer of certain types of firearms, and required the registration of such arms. The Miller court held the following:

1) The National Firearms Act was not an unconstitutional usurpation of police power reserved to the states.

2) "In the absence of evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length,' which is the subject of regulation and taxation by the National Firearms Act of June 26, 1934, has some reasonable relationship to the preservation or efficiency of a well-regulated militia, it cannot be said the the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument, or that the statute violates such constitutional provision."

3) "It is not within judicial notice that a shotgun having a barrel of less than 18 inches in length is any part of the ordinary military equipment or that its use could contribute to the common defense."

4) "The Second Amendment must be interpreted and applied with a view to its purpose of rendering effective the Militia."

As noted in the Summary section, Miller has often been mis-cited. Note that in the entire text of Miller, neither the words "state militia" nor "National Guard" are to be found.

Regarding item 4) above, the Miller court defined the Militia as the following:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." 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.

Attempting to interpret the above paragraph, a law journal article writes,

while far from clear, this passage is not inhospitable to the view that it is a private individual right to keep and bear arms which is protected. For only if there existed such a "body of citizens" in possession of "arms supplied by themselves," could they, should the need arise, be "enrolled for military discipline" to act "in concert for the common defense." (Barnett R., and Kates D., Under Fire: The New Consensus on the Second Amendment, Emory Law Journal [1996].)

Commenting on the significance of the phrase "enrolled for military discipline," law professor Nelson Lund, in another law journal article explains:

This phrase does not conflict with the preceding sentence in the passage from Miller, for "enrollment" in the militia does not imply or depend on actual military service or training. Under the first Militia Act, for example, those subject to militia duty were enrolled by the local commanding officer, and then notified of that enrollment by a non-commissioned officer. 1, 1 Stat. 271, 271 (1792). Whether the members carried out their duties or not, they were still "enrolled." Under the statute in effect at the time Miller was decided (as in the statute in force today), enrollment was accomplished by the operation of law alone, and most members of the militia were probably not even aware that they belonged to such a body. National Defense Act, ch. 134, 57, 39 Stat. 166, 197 (1916); 10 U.S.C. 311(a) (1994). Thus, neither the Miller opinion nor any of the various militia statutes can be used to shore up the insupportable notion that the Second Amendment protects only a right to serve in the National Guard. (Lund, Nelson, The Past and Future of the Individual's Right to Arms, [Footnote 54], Georgia Law Review [1996].)

The Supreme Court reversed and remanded the case back to the district court, giving the defendants a chance to provide evidence that a short-barrelled shotgun could contribute to "the efficiency of a well-regulated militia." (The Court was apparently unaware of the use of short-barreled shotguns in trench warfare during World War I. [http://nraila.org/FactSheets.asp?FormMode=Detail&ID=17] )

Note, Miller only required evidence that the weapon contribute to the efficiency of a well-regulated militia. The Court never said the defendants had to belong to a well-regulated militia. In other words the Miller case interpreted the Second Amendment to mean one has the right to own militia type weapons.

The defendants had not appeared for their Supreme Court hearing and they had no legal representation as well! Miller was murdered in April of 1939 (one month before the Court's decision). After the decision, Layton pleaded guilty to transporting a sawed-off shotgun, and received five year's probation. [http://rkba.org/research/miller/Miller.html] ) And so even though the case had been remanded, it was never tried in the lower courts.

In its brief the U.S. government argued the "collective rights" theory. (See GunCite's rebuttal to the U.S. government's brief.)

More importantly please read how the Miller case has been mis-cited by some federal courts and how some rulings are simply based on judges own feelings, desires, and values rather than the rule of law and valid evidence.

Though some circuit courts have adopted a "collective rights" theory of Miller (see the link in the previous paragraph), the first circuit court to analyze Miller held a weapon centric view of the case. However, it did not feel "that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases" because it would "in effect hold that the limitation of the Second Amendment is absolute." (Cases v. U.S., 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).)

Many years later, Justice Hugo Black (one of the judges who decided Miller), commenting on the Second Amendment said,

Although the Supreme Court has held this Amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute. (Black, Hugo, The Bill of Rights, New York University Law Review, Vol. 35, April 1960.)

A criticism of the Miller decision itself.

Complete text of U.S. v. Miller, 307 U.S. 174 (1939).

Lewis v. U.S. (1980)

Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 forbids the possession of firearms by a convicted felon. Lewis, the petitioner, was convicted of a felony in a 1961 state court "for breaking and entering with intent to commit a misdemeanor". In 1977, in Virginia, Lewis was charged with receiving and possessing a firearm in violation of the above act. Lewis, claimed his latest conviction violated the Fifth and Sixth Amendments because he had no counsel present during his 1961 trial.

The court upheld Lewis' conviction, holding:

(a)...the fact that there are remedies available to a convicted felon - removal of the firearm disability by a qualifying pardon or the Secretary of the Treasury's consent, as specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding - suggests that Congress intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose to keep firearms away from persons classified as potentially irresponsible and dangerous.

(b) The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment, since Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. And use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by criminal sanction, is not inconsistent with Burgett v. Texas, 389 U.S. 109; United States v. Tucker, 404 U.S. 443; and Loper v. Beto, 405 U.S. 473.

In a footnote the court stated:

These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to [445 U.S. 55, 66] the preservation or efficiency of a well regulated militia").

Note, the Court restated the Miller court's focus on the type of firearm.

The Court also commented it was customary to deny convicted felons the right to vote, hold union office, or practice medicine.

Complete text of Lewis v. U.S., 445 U.S. 55 (1980).

Burton v. Sills (1985)

From Stephen Halbrook's "That Every Man be Armed: The Evolution of a Constitutional Right":

A...striking erosion of the right to possess arms was exemplified in the New Jersey case of Burton v. Sills (1968). It originated when members of sportsman clubs and gun dealers brought an action to declare unconstitutional the state's gun-control law, which imposed restrictive requirements. Conjuring up an image of "political assassinations, killings of enforcement officers, and snipings during riots," the court expressed exaggerated fears of a revolution. The New Jersey Supreme Court restricted the definition of militia to "the active, organized militias of the states," that is, the National Guard. The court's very use of these adjectives to modify the word "militia" ignores the constitutional militia comprised of all persons capable of bearing arms. The Burton opinion simply fails to provide scholarly, historical, and analytical treatment of the subject, as indeed primarily only the antebellum state opinions do provide.

Complete text of Burton v. Sills (1968).

U.S. v. Verdugo-Urquidez (1990)

This case dealt with whether nonresident aliens, located in a foreign country, were entitled to Fourth Amendment rights. The Court ruled they were not. In discussing the meaning of "the people" in the Fourth Amendment, the Court commented:

" '[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers 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. "

Therefore the Court viewed "the people" in the Second Amendment to have the same meaning as in the First, Fourth, Ninth, and Tenth amendments. Many "pro-gun" groups cite this case as resolving "any doubt that the Second Amendment guarantees an individual right" (National Rifle Association, Fact Sheet: Federal Court Cases Regarding the Second Amendment).

However, the Court didn't discuss whether the militia clause is a limiting factor, and how it might restrict the people's right to keep and bear arms. Moreover, in U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992), the Eighth Circuit stated:

"Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265 ... Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias. This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia ... Whether the 'right to bear arms' for militia purposes is [Page 24] 'individual' or 'collective' in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia. Id. at 1020."

The Supreme Court denied an appeal of Hale. For a brief criticism of Hale click here.

On a concluding side-note:

"Interestingly, the majority opinion's analysis of 'the people' protected by the Bill of Rights was an elaboration of a point made by the dissenting opinion from the Ninth Circuit Court of Appeals, when the majority had held that Mr. Verdugo was entitled to Fourth Amendment protections. When the Verdugo case went to the Supreme Court, the Solicitor General's office quoted from Ninth Circuit's dissent, but used ellipses to remove the dissent's reference to the Second Amendment. The Supreme Court majority, of course, put the Second Amendment back in."
        --- The Supreme Court's Thirty-five Other Gun Cases. By David B. Kopel. Forthcoming in the St. Louis University Public Law Review.

Complete text of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
The Ultimate Check

 

Introduction

Many believe resistance by citizens with nothing but small arms against a tyrannical government in possession of high-tech helicopters, fighter planes, tanks, and nuclear weapons would be futile. Recent history suggests otherwise.

 

Presentation

The following is excerpted from Rabkin, Jeremy, "Constitutional Firepower" The Journal of Criminal Law & Criminology, Northwestern, University, School of Law, Fall 1995, p. 245.

The arguments of earlier times may seem most remote in their insistence that private gun ownership is a necessary check on government opponents. Certainly, the "imagination recoils" at the thought of armed struggle by American citizens against their own government at the end of the twentieth century or decades into the next century. But even on this point, the wisdom of the past should not be dismissed too quickly. The truth is that Parliament triumphed in the English Civil War not with citizen militias but with a drilled "new model army" of professional soldiers. James II was not induced to abandon his throne by citizen militias but by a professional army under William of Orange. Even the American colonists could not have secured their decisive victory over the British at Yorktown without extensive assistance from the professional army and the sizable navy of France. Enthusiasm for armed citizens was not, even in the seventeenth and eighteenth centuries, based on the notion that such citizens could defeat professional armies on their own. The serious argument was always that armed citizens could raise the cost of tyrannical abuse--enough, at least, to give second thought to would-be tyrants.

Clearly, armed citizens continue to give pause to far better armed governments even in the age of nuclear weapons and intercontinental missiles. The most advanced and powerful arsenal in the worlds was insufficient to provide the United States government with confidence to keep its troops in the field against armed civilians in Somalia. Britain was forced to the negotiating table with terrorists in Northern Ireland and the government of Israel felt obliged to enter the negotiations with the terrorist P.L.O., not because these governments could not win an all out war against armed civilians but because they did not wish to continue paying the costs of containing their violence.

Is is unthinkable that these facts might have relevance to American circumstances? One hopes so. But as the deadly assault on the Branch Dividian compound in Waco, Texas illustrates, even American governments can be tragically reckless in resorting to force when the costs are not carefully calculated. Earlier generations would have taken it for granted that giving government officials more reason to take caution is not a bad thing. It is hard to prove that this reasoning has become entirely anachronistic.

The following comments are excepted from:

Bursor, Scott, Toward a Functional Framework for Interpreting the Second Amendment.
Is the view of an armed populace embodied in the Second Amendment still valid in a society with professional military and police forces? Is an armed populace still capable of performing the functions detailed above? Many have argued that it cannot and thus, that the private ownership of arms is an anachronism inapplicable to our current circumstances. These arguments rest on empirical assertions that are highly debatable to say the least.

Commentators often attack the vitality of the military and political functions of the militia concept with the argument that they can no longer be performed by a militia. Simply stated, the argument is that an armed citizenry cannot restrain a domestic tyrant or deter a foreign conqueror backed by a modern army. This empirical assertion is frequently made by lawyers, politicians, or other advocates who offer neither argument nor authority for the proposition. And while this assertion may be true in some limited number of circumstances, as a categorical assertion it is demonstrably false.

Consider some recent examples. The Vietnam War demonstrated that a modern military power can be resisted by guerilla fighters bearing only small arms. This lesson has not been forgotten. In 1992, the United States declined to intervene in the conflict in Bosnia-Hercegovina after an aide to General Colin Powell, then Chairman of the Joint Chiefs of Staff, advised the Senate Armed Services Committee that the widespread ownership of arms in the former Yugoslav republic made even limited intervention "perilous and deadly." The deterrent effect of an armed populace was emphasized by Canadian Major General Lewis Mackenzie, who led United Nations peace keeping troops in Sarajevo for five months. Despite the tremendous capabilities of the United States Armed Forces, he explained, the prevalence of arms ownership in the area caused him to believe that if American forces were to be sent to Bosnia, "Americans [would be] killed.... You can't isolate it, make it nice and sanitary."

The validity of these concerns has also been demonstrated in the current conflict in Chechnya where "[m]ore than 40,000 soldiers from the Russian army ... have quickly been humbled by a few thousand urban guerrillas who mostly live at home, wear jeans, use castoff weapons and have almost no coherent battle plans or organization." The Russian army's nuclear capability apparently has not translated into a tactical advantage in the streets of Chechnya.

In addition to these anecdotal examples, there is further evidence of the military practicality of an armed citizenry. The 1966 Arthur D. Little, Inc. Report ("the Little Report"), commissioned by the United States Department of the Army, concluded that in spite of recent technological developments in the modes of waging war, a modern war will almost certainly be a "shooting war" in which the basic individual weapon of combat will be the rifle. The Little Report does more than refute the notion that riflemen are militarily obsolete in the nuclear era. It offers an additional insight into the military value of armed citizens: they make better soldiers when they enter the service. They are significantly better marksmen than those who did not own arms prior to enlistment (even when marksmanship is measured after military training) and are more confident in their ability to perform effectively in combat. Furthermore, gun owners are more likely to enlist, to prefer combat outfits, and to become marksmanship instructors.

...

Nevertheless, the question of whether armed citizens can serve as an effective check on the state in our nuclear age is an important one. The belief that an armed citizenry would subdue aggressive rulers and keep them sensitive to the rights of the people was perhaps the most important motivation for the inclusion of the right to keep and bear arms in the Constitution. Thus, the continued vitality of an armed populace as a check on the modern state should have important implications on our interpretation of the Second Amendment. As I have noted above, there is little reason to dismiss the effectiveness of a modern militia. Much to the contrary, the Little Report and the conflicts in Vietnam, Bosnia, and Chechnya offer compelling evidence that armed citizens can restrain, deter, or repel a modern army.

Some, while acknowledging the effectiveness of an armed citizenry as a check on government, have questioned the prudence of such a scheme. Certainly, we ought not encourage or facilitate armed uprisings whenever a particular group feels shorted by the political process. Moreover, it is entirely legitimate for the government to punish insurrection. Can such punishment be consistent with a proper respect for the political function of the right to arms?

Of course it can. The Second Amendment does not guarantee immunity from punishment for insurrection; it merely guarantees the capacity for resistance. And that capacity, as a check on government, does not go unchecked itself. The Constitution explicitly affirms the validity of punishing insurrection, and the potential of punishment is a check on the armed populace. It strongly discourages armed resistance except in the cases of the most severe encroachments by the government. This idea is best expressed in the Declaration of Independence: "Prudence, indeed, will dictate that Governments long established should not be changed [or challenged] for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."


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