2nd Amendment Case Law

The Chronological case law of the 2nd Amendment.  Where the courts got it wrong, and took away freedom, and where they got it right, and empowered a free people; since 1857 all the way to the present and pending cases today.

Current Case-law and Interpretation of the 2nd Amendment:

  • All forms of “firearms,” even that which has not been invented yet, is incorporated.
  • Bearing firearms outside of the home is protected.
  • 2nd Amendment, right to bear arms, applies to local and State jurisdictions and not just federal.
  • It is an individual right, not connected to a militia.
  • The federal government may regulate and prohibit the type of firearms, such as full auto “machine guns” and accessories that convert firearms to become, or simulate, fully auto, such as bump stocks.

The Historic Case-Law

Dred Scott v. Sandford, 60 U.S. 393, 416-17, 449-51 (1857)

“Nor can Congress deny to the people the right to keep and bear arms… It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.”

United States v. Cruikshank, 92 U.S. 542, 551 (1876)

The charges included, among other things, that the defendants conspired to interfere with the victims’ rights to peaceably assemble and to keep and bear arms. The Court threw out the indictment, saying:  ” 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, in The City of New York v. Miln, the “powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,” “not surrendered or restrained” by the Constitution of the United States. ”

In 1876, the 2nd Amendment was ruled to only restrict Congress and federal law, not local and state laws.  So, states began passing laws to prevent “the South from rising again”

Presser v. Illinois, 116 U.S. 252, 264-65 (1886)

State law barred “any body of men, other than the organized militia of the state and the troops of the United States, from associating as a military company and drilling with arms in any city or town of the state”; the Court held:  ”

We are next to inquire whether the fifth and sixth sections of article 11 of the Military Code are in violation of the other provisions of the constitution of the United States relied on by the plaintiff in error.  The first of these is the second amendment, which declares:  “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.”  We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.

But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms “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 . . . .”

Presser echoed the Cruikshank ruled that in some way, the 2nd Amendment, is not granted by the constitution and applied to the states.  Again, their main concern was Confederate militia groups forming and rising again.

Miller v. Texas, 153 U.S. 535, 538-39 (1894)

“In his motion for a rehearing, however, defendant claimed that the law of the state of Texas forbidding the carrying of weapons, and authorizing the arrest, without warrant, of any person violating such law, under which certain questions arose upon the trial of the case, was in conflict with the second and fourth amendments to the constitution of the United States, one of which provides that the right of the people to keep and bear arms shall not be infringed, and the other of which protects the people against unreasonable searches and seizures.

We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts. 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.”

This case was almost like a Red Flag law, in that the state took away their right to bear arms without due process.  But, since it has only been maybe 20 years after the Civil War and Confederate pride was alive and well, the states ability to control its people was still in the minds of the court.

Robertson v. Baldwin, 165 U.S. 275, 280 (1897)

The Court concluded that the Thirteenth Amendment didn’t bar enforcement of a mariner’s contract, on the grounds that the various constitutional rights cannot be read literally and absolutely:

“Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (article 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant’s motion; . . . .  ”

Essentially, a contract is not bound in a literal sense by rights perceived to only be federally applicable.

Then, we get into World War 1, the great depression, and then head toward World Wart 2.

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

An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton “did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length [contrary to the National Firearms Act] . . . .”

A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution — “A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed.” The District Court held that section eleven of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.

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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

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 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 the Militia according to the discipline prescribed by Congress.” 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 interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast 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. [Citing further sources, e.g., the Virginia Act of October 1785 providing for a Militia of “all free male persons between the ages of eighteen and fifty years,” with certain exceptions.]

Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.

Lewis v. United States, 445 U.S. 55, 65 (1980)

[Lewis was convicted of being a felon in possession, and challenged it on various statutory grounds, on the ground that his prior felony conviction was uncounseled and therefore shouldn’t be considered, and on constitutional grounds.  The Court held:]

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 if there is “some `rational basis’ for the statutory distinctions made . . . or . . .  they `have some relevance to the purpose for which the classification is made.” [fn1]

Section 1202(a)(1) clearly meets that test. . . .

[fn1] 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, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939) (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”); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972) (the latter three cases holding, respectively, that § 1202(a)(1), § 922(g), and § 922(a)(6) do not violate the Second Amendment).

United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990)

Contrary to the suggestion of amici curiae that the Framers used this phrase “simply to avoid [an] awkward rhetorical redundancy,” “the 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”).

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.

United States v. Rock Island Armory (1991)

United States District Court for the Central District of Illinois ruling one cannot be prosecuted for 1934 National Firearms Act violations for machine guns produced after 1986:

… since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machine gun made after May 19, 1986, to approve any such making or transfer, or to register any such machine gun. As applied to machine guns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional.

Casey v. Planned Parenthood, 503 U.S. 833, 848 (1992)

Neither the Bill of Rights nor the specific practices of 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., Amdt. 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 abridgment.”  Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J., opinion dissenting from dismissal on jurisdictional grounds). [The Harlan quote from Poe v. Ullman is also quoted by the plurality in Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977).]

United States v. Lopez, 514 U.S. 549 (1995)

In the first Supreme Court case, since the New Deal, to set limits on the Congress’s power under the Commerce Clause, the Court declared the Gun-Free School Zones Act of 1990 unconstitutional.

United States v. Rybar (3d Cir. 1996)

In this case, the United States Court of Appeals for the Third Circuit ruled Congress did have the power to regulate possession of homemade machine guns under the Commerce Clause, later reaffirmed by the Supreme Court.

District of Columbia v. Heller, 554 U.S. 570 (2008)

The Court ruled the Second Amendment to reference an individual right, holding:

The Second Amendment guarantees 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

McDonald v. City of Chicago, 561 U.S. 742 (2010)

The Court ruled that the Second Amendment was incorporated against state and local governments, through the Due Process Clause of the Fourteenth Amendment.

In the decision, the Court said:

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.

People v. Aguilar, 2013, Illinois Supreme Court

In 2013, the Illinois Supreme Court in People v. Aguilar held that a total ban on carrying firearms outside the home violated the Second Amendment and was unconstitutional. Applying Heller, McDonald, and Moore v. Madigan (a Seventh Circuit decision), the Illinois Supreme Court overturned the conviction of Aguilar, stating that the right to self-defense was at the core of the Second Amendment.

Caetano v. Massachusetts, 577 U.S. (2016)

The Court ruled that the Second Amendment extends to all forms of bearable arms:

The Court has held 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 this Second Amendment right is fully applicable to the States.

New York State Rifle & Pistol Association Inc. v. City of New York (heard arguments, 2019)

New York City rule that limited where gun owners with a certain kind of permit were allowed to bring their guns.  New York City changed their gun rules after the Supreme Court announced it would hear the case, and state legislators enacted a new law forbidding the city from bringing back the old rules.

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