History of the Second Amendment – Part 2

The last post covered the reason for the Second Amendment as well as restrictions on firearm ownership in the past and present, including applicable laws at the state level.

Court Cases about the Second Amendment

While gun control supporters would have us believe the courts have held that the Second Amendment is a collective right protecting the states’ exclusive ability to raise, train, and direct a militia, a review of relevant cases clearly demonstrates the opposite.

Although several Supreme Court cases were clearly controversial, especially when viewed through todays’ lens of equality, they held that the Second Amendment was an individual right protected against infringement from the federal government. 

• Dred Scott v. Sandford, 60 U.S. 393 (1856), In a decision that later was nullified by the Thirteenth and Fourteenth Amendments, the Supreme Court held that former slaves did not have standing in federal courts because they lacked U.S. citizenship, even after they were freed. The court suggested that extending constitutional protections to African-Americans, which would be necessary if they were deemed to be citizens, would result in the “socially unacceptable consequences” of giving them the right to travel, free speech, and the right to bear arms.
• United States v. Cruikshank, 92 U.S. 542, 551 (1876), held that because the fundamental rights of the First and Second Amendments existed independently of the Constitution, and because they guaranteed only that these rights shall not be infringed by the federal Congress, the federal government had no power to punish a violation of these rights by…private individuals.
• In Presser v. Illinois, 116 U.S. 252, 264-65 (1886), court concluded that the Illinois statute did not infringe the Second Amendment since the statute did not prohibit the keeping and bearing of arms but rather prohibited the forming of private military organizations and the performance of military exercises in town by groups of armed men without a license to do so. The court found that such prohibitions simply “do not infringe the right of the people to keep and bear arms.”  After stating that “all citizens capable of bearing arms” constitute the “militia,” the Court held that the “States cannot . . . 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.”
• United States v Verdugo-Urquidez 494 U.S. 259, 264 (1990), a Fourth Amendment case, the Supreme Court interpreted the meaning of the term “the people” in the Bill of Rights. The court stated 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. In other words, the term “the people” means at least all citizens and legal aliens in the United States. This case thus makes clear that the Second Amendment is an individual right that applies to individual law-abiding Americans.
• Perhaps one of the most interesting cases is United States v. Miller, 307 U.S. 174 (1939), which challenged the National Firearms Act of 1934 on Second Amendment grounds. The NFA created a registration and tax mechanism for machine guns, suppressors, and short-barreled rifles and shotguns. A federal trial court held that the NFA violated the defendants’ Second Amendment rights. Shortly afterward, Miller was murdered and the other defendant disappeared. Thus, when the U.S. government appealed, there were no written or oral arguments submitted on behalf of the defendants. In their decision, the Supreme Court held the entire populace constituted the “militia,” and that the Second Amendment protected the right of the individual to keep and bear militia-type arms, which the sawed-off shotguns owned by the defendants clearly were, based on WWI weapons used. In short, U.S. v Miller SPECIFICALLY (emphasis added) protects militia-type arms. Within this context, AR-15 style rifles would fall under this specific protection, even if other “military style” firearms did not.
• District of Columbia v. Heller, 554 U.S. 570 (2008) protects an individual’s right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home. It did not, however, address the question of whether the Second Amendment should be incorporated against the states. This would be addressed in McDonald v. City of Chicago.
• McDonald v. Chicago, 561 U.S. 742 (2010) 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.”

Current law about the Second Amendment

The Heller and McDonald cases were huge steps forward for gun rights as they very clearly established the Second Amendment as both protecting an individual’s right to keep and bear arms. McDonald also incorporated the Second Amendment against the states, something courts had refused to do in the past. This meant states now had to follow the Second Amendment, which countered previous court decisions such as Cruishank, which said the amendment only applied to the federal government. Nevertheless, states and local governments continue to find creative methods to make it as difficult as possible for gun owners, irrespective of incorporation.

Since Heller and McDonald, the push for increased gun rights has been successful. Shall-issue CCW permits have become the norm for most states, and even Constitutional Carry (CCW w/o any permit required) has passed in 16 states. Both of these things were a rarity in the mid-1990s, with Constitutional Carry coming mostly after 2009-2010.

Nevertheless, anti-Second Amendment forces are still working to eliminate the right to keep and bear arms, and will be the subject of our next blog post.