Suggested Reading

Opinions of the U.S. Supreme Court

(Underlining in quotations below does not reflect hypertext, but only provides emphasis.)

Cases in which a party raised a Second Amendment claim:

United States v. Cruikshank, 92 U.S. 542 (1876)

          This case was a great victory for the KKK, in which the Court affirmed an order arresting judgments of conviction for conspiracy to deprive freed blacks in Louisiana of their civil rights.  

          In doing so, the Court gutted the Due Process Clause of the Fourteenth Amendment by holding that the Second Amendment, like the other amendments in the Bill of Rights operated only as a restraint upon the federal government.  In discussing the right to "bear arms for a lawful purpose" the Court stated that "the people" should look to localities (not the national government) for protection against "their fellow citizens" of rights recognized by the Second Amendment.  As the Court stated succinctly:

          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 Government in respect to their own citizens, but to operate upon the National Government alone.

                                                                  92 U.S. at 553 (emp. added)

          According to Cruikshank, none of the Bill of Rights was applicable to the States.  Following Cruikshank to its logical conclusion, States could:  establish an official religion, ban the practice of all "unofficial" religions, ban political parties, censor the press, conduct warrantless searches and seizures, arrest people without probable cause, imprison or otherwise punish them without a trial, and trample on every other right guaranteed in the first eight amendments to the Constitution.

          Fortunately, the Supreme Court has long since abandoned such a restricted application of the Bill of Rights.  Modern legal scholars such as Prof. William Van Alstyne of  Duke question the continued validity of Cruikshank.  In The Second Amendment and The Personal Right to Arms, 43 DUKE L.J. 1236, 1239, n.10 (1994) Prof. Van Alstyne writes:

          [T]here are a few nineteenth century decisions denying any relevance of the Second Amendment to the States; but these decisions (they have never been revisited by the Supreme Court) merely mimicked others of the same era in holding that none of the rights or freedoms enumerated in the Bill of Rights were made applicable by the Fourteenth Amendment to the states. See, e.g., Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542, 553 (1876). The shaky foundation of these cases ("shaky" because the effect was to eviscerate the Fourteenth Amendment itself) has long since been recognized - and long since repudiated by the Court in general.

                                                                 (emp. in original)

See also, Levinson, The Embarrassing Second Amendment, 99 YALE L.J., 637, 653 (1989).

While the Court in Cruikshank held that the Bill of Rights applied only to actions of the federal government, it also used the phrase "the people" in the same context as "their fellow citizens." 92 U.S. at 553.  The Court obviously viewed "the people" referred to in the Second Amendment as meaning individuals.  States, unlike individuals, do not have fellow citizens.  


Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580 (1886)

          The Court upheld the conviction of a man named Presser who had been charged with parading a body of armed men through the streets of Chicago without a license.  The Court held that these provisions did not infringe upon the right of the people to keep and bear arms.  Relying upon Cruikshank, the Court in Presser held that the Second Amendment is a limitation only upon Congress and the federal government.

          Presser did, however, also hold that all citizens capable of  bearing arms constitute the reserve militia of the United States, and that even without the Second Amendment states may not prohibit people from keeping and bearing arms "so as to deprive the United States of their rightful resource for maintaining public security." 116 U.S. at 265, 6 S.Ct. at 884.  The Court in Presser drew a clear distinction between "the people" and the "States".  If the Supreme Court that decided Presser believed that the Second Amendment guaranteed only a collective right of States to maintain militias it would never have made this distinction.  The Court would also not have addressed Mr. Presser's Second Amendment claims on its merits. If the Second Amendment guaranteed only a collective right of States, an individual citizen like Presser would not have had standing to assert a Second Amendment claim.


Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874 (1894)

          Mr. Miller was convicted of murder and carrying a weapon.   On appeal he argued that the law forbidding the carrying of weapons violated the Second Amendment.

          The Supreme Court declined to rule on the Second Amendment claim due to his failure to raise it in a timely fashion, stating:

[i]f 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."

                                                       153 U.S. at 538

          If the Second Amendment guaranteed only a collective right of States to maintain militias, Miller would have not even had standing to raise a Second Amendment claim at the trial level, and the Court could have disposed of his claim by holding that, as an individual, he lacked standing to assert such a claim at all.

United States v. Miller, 307 U.S. 174, 59 S.Ct. 816 (1939)

          This case is a MUST READ. According to Prof. Sanford Levinson of the University of Texas:

Miller can be read read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course assault weapons.

          Levinson, The Embarrassing Second Amendment, 99 YALE L.J., 637, 654-55 (1989)

          Jack Miller and a cohort were indicted for unlawfully transporting a short-barrelled shotgun in violation of the National Firearms Act of 1934.  The federal district judge granted Miller's motion to dismiss the indictment, holding that the section of the National Firearms Act under which Miller had been indicted violated the Second Amendment.

          The United States appealed to the U.S. Supreme Court.  Miller absconded.  When the case was argued before the Supreme Court only a lawyer for the United States appeared.  Miller was no longer represented.

          That the Second Amendment guaranteed an individual right was never an issue before the Court in United States v. Miller. The fact that Jack Miller was not affiliated with any organized militia had no bearing on the case.

          What the Supreme Court was concerned with was whether the shotgun possessed by Miller had "some reasonable relationship to the preservation or efficiency of a well-regulated militia, . . ." 307 U.S. at 178, 59 S.Ct. at 818.  Because insufficient evidence had been put before the district court on this issue the case was remanded for further proceedings.

          The Supreme Court in United States v. Miller discussed the "militia" and, through selective quotation, gun-prohibitionists have attempted to manipulate the opinion to make it appear that the Supreme Court held the Second Amendment to guarantee only the right of States to maintain a militia. What the Court actually said concerning the militia was as follows:

          The Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for the organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training then Militia according to the discipline prescribed by Congrass." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made.  It must be interpret and applied with that end in view.

          The Militia which the States were expected to maintain and train is set in contract with Troops which they were forbidden to keep without the consent of Congress.  The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.

          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.

                                                                  307 U.S. at 178-79 (emp. added)

          Gun-prohibitionists routinely cite the underlined portion of the first paragraph, above, while conveniently ignoring those in the third paragraph.


Other cases discussing the right to keep and bear arms:

Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) a/k/a "The Dred Scott Case"

          In this famous case decided just four years before the beginning of the Civil War, the Supreme Court addressed the question of whether persons of african descent could be citizens. It held that they could not in an opinion written by Chief Justice Taney. Taney was from Maryland, where slavery was both legal and widely practiced.  Bear in mind that in 1857, Southerners were not keen on the idea of freeing the slaves, much less bestowing upon them the rights of citizens.

          The concerns of his fellow Southerners were not lost upon Taney, who wrote that if blacks were recognized as citizens in any State of the Union, they would have the right to travel freely, engage in free speech, hold public meetings on political issues, and "keep and carry arms whereever they went."  60 U.S. at 416-17.

          If the Second Amendment guaranteed only the collective right of States to maintain militias, there would have been no reason for Justice Taney to fear that black citizens could "keep and carry arms" since citizenship does not automatically entail service in an organized state militia. What concerned Taney was the rights blacks would enjoy as citizens.  The Supreme Court's opinion in Scott v. Sanford also listed the right to keep and bear arms with other rights that the Court has held to be of an individual nature, such as freedom of religiion, free speech, freedom of the press, peaceable assembly, trial by jury, and the right against self-incrimination.  60 U.S. at 450.


United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056 (1990)

          This case involved the search of a residence in Mexico by agents of the United States Drug Enforcement Agency. The occupant was a Mexican citizen who later filed a motion in the U.S. District Court to suppress evidence seized during the search.

          The Supreme Court held that the Fourth Amendment (which prohibits unreasonable searches and seizures) did not apply to a search by American police of the Mexican residence of a Mexican citizen and resident who had no voluntary attachments to the United States. While Verdugo-Urquidez involved only Fourth Amendment claims, the opinion by Chief Justice Rhenquist made it clear that the phrase "the people", as used in the Bill of Rights, means individuals:

          "The people" seems to have been a term of art employed in select parts of the Constitution. . . . 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., Amde. 1, ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") . . . . 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.

                                                                   494 U.S. at 265, 110 S.Ct. at 1057 (emp. added)

          Justice William Brennan, in his dissenting opinion, wrote that:

[T]he term "the people" is better understood as a rhetorical counterpoint to "the government," such that rights that were reserved to "the people" were to protect all those subject to "the government."

                                                                  494 U.S. at 287, 110 S.Ct. at 1072 (emp. added)


Planned Parenthood v. Casey, ____ U.S.____, 112 S.Ct. 2791 (1992)

          In this case the Supreme Court considered the constitutionality of a Pennsylvania abortion statute requiring the informed consent of the patient, a 24-hour waiting period, parental consent, spousal notification, and reporting and record-keeping.  The plaintiffs claimed that such provisions constituted a deprivation of liberty in violation of the Due Process Clause of the Fourteenth Amendment.  The Court held that the "substantive liberties" protected by the Fourteenth Amendment against interference by the States was not limited to those rights already guaranteed against federal interference by the first eight amendments to the Constitution. In doing so, the Supreme Court listed the right to keep and bear arms in the same context as other rights which it has held to be of an individual nature:

          Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.  See U.S. Const., Amend. 9.  As the second Justice Harlan recognized:

   "[T]he full scope of the liberty guaranteed by the Due Process Clause 'cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.  This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.  It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement."  Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777 (Harlan, J., dissenting from dismissal on jurisdictional grounds)  

                                                                    112 S.Ct. at 2805 (emp. added)

          That the Supreme Court would even mention the right to keep and bear arms in a discussion of the rights protected by the Due Process Clause of the Fourteenth Amendment demonstrates that it considers the Second Amendment to guarantee an individual right.  The touchstone of due process is protection of the individual against arbitrary action of government.  Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233 (1889); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976 (1974).