A Brief History of Second Amendment Jurisprudence
As it turns out, That title is a bit of a misnomer. It would be hard to write about the history of second amendment jurisprudence and not be brief, as the second amendment has only been interpreted by the supreme court in six cases. The second amendment is just twentyseven words long, but those words are the focus of much debate.
“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.”
I will admit my bias upfront. I believe that the second amendment recognizes the natural right of self defense against all forms of unlawful violent aggression, be it from criminals, tyrannical government, or foreign invaders. I believe that the founders recognized that in order to effectively implement this right, arms were necessary.
The second Amendment is part of the Bill of Rights. The bill of rights is a document that recognizes the existence of 28 separate and distinct rights or freedoms. 26 of these, we seem to agree, are rights or freedoms of the individual. Does it make sense that in a list of rights or freedoms, that 2 of 28 would only apply to a specific group? It can be argued that all 28 of these rights make us collectively less safe from each other in the interest of making us more safe from tyranny and government oppression. Is it not logical to assume that this commonality is related to the purpose of the document? We all seem to agree that 26 of the 28 are central to the identity of our society.
The supreme court has addressed the second amendment only six times. Those casses are as follows
United States v. Cruikshank, 92 U.S. 542 (1876)
"The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government."
While it does address the second amendment, this case is really an incorporation case. In terms of interpreting the second, its only real value is that it recognizes that the right is preexisting and that the second amendment only exists to restrain government action.
Presser v. Illinois, 116 U.S. 252 (1886),
was a decision of the Supreme Court of the United States holding that "Unless restrained by their own constitutions, state legislatures may enact statutes to control and regulate all organizations, drilling, and parading of military bodies and associations except those which are authorized by the militia laws of the United States." It states that the Second Amendment to the United States Constitution limited only the power of Congress and the national government to control firearms, not that of the states, and that the right peaceably to assemble was not protected by the clause referred to except to petition the government for a redress of grievances.
This case is interesting in that it specifically addresses the prefatory clause of the second amendment. However, it is largely an incorporation case, and does little to define the meaning of the second amendment.
United States v. Miller, 307 U.S. 174 (1939)
The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held:
Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States, 300 U. S. 506, and Narcotic Act cases. P. 307 U. S. 177. The conclusion was in the favor of the NFA.
Not violative of the Second Amendment of the Federal Constitution. P. 307 U. S. 178.
The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.
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.
This case is the big one for those who support the constitutionality of various gun control measures. I think it is important to understand the background of the case. The following background was copied from Wikipedia.
United States v. Miller involved a criminal prosecution under the National Firearms Act of 1934 (NFA). Passed in response to public outcry over the St. Valentine's Day Massacre, the NFA requires certain types of firearms (including but not limited to fully automatic firearms and short-barrelled rifles and shotguns) to be registered with the Miscellaneous Tax Unit (later to be folded into what eventually became the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF) which at the time was part of the Bureau of Internal Revenue (ancestor of today's Internal Revenue Service),[1] with a $200 tax paid at the time of registration and again if the firearm was ever sold.
Defendants Miller and Layton filed a demurrer challenging the relevant section of the National Firearms Act as an unconstitutional violation of the Second Amendment. District Court Judge Heartsill Ragon accepted the claim and dismissed the indictment, stating, "The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States, U.S.C.A., providing, '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.'" Judge Ragon provided no further explanation of his reasons.
In reality, Ragon was in favor of the gun control law and ruled the law unconstitutional because he knew that Miller, who was a known bank robber and had just testified against the rest of his gang in court, would have to go into hiding as soon as he was released. He knew that Miller would not pay a lawyer to argue the case at the Supreme Court and would simply disappear. Therefore, the government's appeal to the Supreme Court would be a sure win because Miller and his attorney would not even be present at the argument.[2] [3]
On March 30, 1939, the Supreme Court heard the case. Attorneys for the United States argued four points:
The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.
Neither the defendants nor their legal counsel appeared at the Supreme Court. A lack of financial support and procedural irregularities prevented counsel from traveling.[4] Miller was found shot to death in April, before the decision was rendered.[5]
This is interesting, because the Supreme Court limited its ruling to the facts presented, which only represented the government's case, and remanded the case for further adjudication which never occurred
. The court does seem to recognize that any weapon “ part of the ordinary military equipment, or that its use could contribute to the common defense.” would be protected by the second amendment.
District of Columbia v. Heller, 554 U.S. 570 (2008)
The Supreme Court held:
(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, nor Presser v. Illinois, 116 U. S. 252, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.
(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
This is the big one for the pro second amendment crowd. Heller accurately identified the purpose of the right to keep and bear arms. That purpose, as it was understood before the Second Amendment was adopted, and for a long time thereafter, was to facilitate the right of the people to exercise their natural right of self defense. That included the right to defend oneself against all forms of illegitimate violence, whether from criminals, foreign invaders, or a tyranny. When the Second Amendment was adopted, the danger most to be feared from the new and untried federal government was that it would disarm the citizenry in order to pursue illegitimate political goals. That fear has now receded, and changes in military technology have vastly reduced the power of an armed citizenry to resist a modern army. For those reasons, the relative importance of the anti-tyranny and anti-invader functions of the Second Amendment have dramatically diminished in comparison with the importance of the anti-criminal function. That does not imply that the purpose or meaning of the Second Amendment has changed, but only that the likeliest threats have changed. While an armed citizenry continues to create some deterrent to federal tyranny,80 it is no longer possible for it to create as effective a deterrent as it could in the eighteenth century. No one could reasonably think that the Second Amendment requires that the ratio of federal military power to civilian (or state militia) military power remain fixed at whatever level it was in 1791. Changed circumstances have made that impossible, and the Second Amendment need not be interpreted to protect a right of civilians to possess anti-tank rockets and Stinger missiles, let alone to the private possession of tanks, fighter planes, and nuclear weapons. Nor does the Second Amendment require the virtual absence of regulatory restrictions on firearms that existed in 1791.
McDonald v. Chicago, 561 U.S. 742 (2010),
The Supreme Court held that the second amendment right recognized in Heller is fully applicable to the states through the due process clause of the fourteenth amendment. In so holding, the Court reiterated that “the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” ; that “individual self-defense is ‘the central component’ of the Second Amendment right” ; and that “self-defense is a basic right, recognized by many legal systems from ancient times to the present day”
Like the earliest cases, this one is really more about incorporation than it is about the meaning of the second amendment. In terms of the meaning of the second, it simply reiterates the holding in Heller. However, unlike previous cases, it recognizes incorporation to the states of the right recognized by the second amendment through the fourteenth.
Caetano v. Massachusetts, 577 U.S. ___ (2016)
the Court began its opinion by stating that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" and that "the Second Amendment right is fully applicable to the States". The Court then identified three reasons why the Massachusetts court's opinion contradicted prior rulings by the United States Supreme Court. First, the Massachusetts court said that stun guns could be banned because they "were not in common use at the time of the Second Amendment’s enactment", but the Supreme Court noted that this contradicted Heller's conclusion that Second Amendment protects "arms ... that were not in existence at the time of the founding”. Second, the Massachusetts court said that stun guns were "dangerous per se at common law and unusual" because they were "a thoroughly modern invention", but the Supreme Court held that this was also inconsistent with Heller. Third, the Massachusetts court said that stun guns could be banned because they were not "readily adaptable to use in the military", but the Supreme Court held that Heller rejected the argument that "only those weapons useful in warfare" were protected by the Second Amendment.
This case is significant, because it further elaborates the Heller decision, and addresses restriction of arms other than firearms.
This is the jurisprudence that has led to the current state of second amendment law. If you support more gun control, what do you propose, and how do you rationalize the constitutionality of your proposition?
