Discussion:
OT: Supreme Court to hear 2nd Amendment case
(too old to reply)
Ed Huntress
2007-11-20 21:34:55 UTC
Permalink
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.

This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.

http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=1195707600&en=1630cb299835ac16&ei=5087%0A

--
Ed Huntress
Ignoramus10223
2007-11-20 21:39:53 UTC
Permalink
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=1195707600&en=1630cb299835ac16&ei=5087%0A
I suspect that I even know how they will rule!!!

If it turns out the way I hope, I will do a gun salute in my backyard!

i
nick hull
2007-11-20 23:30:31 UTC
Permalink
Post by Ignoramus10223
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=1195707
600&en=1630cb299835ac16&ei=5087%0A
I suspect that I even know how they will rule!!!
If it turns out the way I hope, I will do a gun salute in my backyard!
If it turns out the other way do a gun salute in DC ;)

Free men own guns - www(dot)geocities(dot)com/CapitolHill/5357/
Ed Huntress
2007-11-20 22:36:15 UTC
Permalink
Post by nick hull
Post by Ignoramus10223
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=1195707
600&en=1630cb299835ac16&ei=5087%0A
I suspect that I even know how they will rule!!!
If it turns out the way I hope, I will do a gun salute in my backyard!
If it turns out the other way do a gun salute in DC ;)
Free men own guns - www(dot)geocities(dot)com/CapitolHill/5357/
...we may have to bail both of you out of jail...d8-)

--
Ed Huntress
S***@yahoo.com
2007-11-20 23:28:58 UTC
Permalink
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=...
Oops. Didn't see your post until after I posted in the other
thread.

Ya scooped me - good job. <g>
Ed Huntress
2007-11-20 23:44:35 UTC
Permalink
Post by S***@yahoo.com
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=...
Oops. Didn't see your post until after I posted in the other
thread.
Ya scooped me - good job. <g>
It's my new wireless newswire-cerebral interface. It keeps you up to date,
but it has a tendency to cause clinical depression. d8-)

--
Ed Huntress
S***@yahoo.com
2007-11-21 00:24:26 UTC
Permalink
[...]
Post by Ed Huntress
Post by S***@yahoo.com
Oops. Didn't see your post until after I posted in the other
thread.
Ya scooped me - good job. <g>
It's my new wireless newswire-cerebral interface. It keeps you up to date,
but it has a tendency to cause clinical depression. d8-)
Yikes. Hope you've got the "Britney Spears" filter tweaked
properly. If that's not working right the consequences will have you
praying for Alzheimer's.
Gunner
2007-11-21 18:48:28 UTC
Permalink
Post by S***@yahoo.com
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=...
Oops. Didn't see your post until after I posted in the other
thread.
Ya scooped me - good job. <g>
Not entirely true.....

http://www.davekopel.com/2A/lawrev/35finalpartone.htm


THE SUPREME COURT'S THIRTY-FIVE

OTHER GUN CASES:

WHAT THE SUPREME COURT HAS SAID

ABOUT THE SECOND AMENDMENT

Long read....
S***@yahoo.com
2007-11-20 23:29:29 UTC
Permalink
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=...
Oops. Didn't see your post until after I posted in the other
thread.

Ya scooped me - good job! <g>
Gary Owens
2007-11-20 23:49:46 UTC
Permalink
The Supremes will study the issue for 3 weeks, then come back with position
papers that won't make ANYONE happy. And it will be all Bush's fault for
not signing the Koybe treaty.
gary
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=1195707600&en=1630cb299835ac16&ei=5087%0A
--
Ed Huntress
Tom Gardner
2007-11-21 03:27:24 UTC
Permalink
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=1195707600&en=1630cb299835ac16&ei=5087%0A
--
Ed Huntress
I'm anxious to see how the politics will roll. I know too many Democrats at
the local range that I don' think it will be split on party lines.
Ed Huntress
2007-11-21 00:54:35 UTC
Permalink
Post by Tom Gardner
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case,
and it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since
Miller in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=1195707600&en=1630cb299835ac16&ei=5087%0A
--
Ed Huntress
I'm anxious to see how the politics will roll. I know too many Democrats
at the local range that I don' think it will be split on party lines.
The early take is that it will make things tough for Democrats either way,
coming in an election year. If the Court finds for an individual right, Dems
will be pressed by the left to promise some effort to effectively overturn
it. If the Court finds against it, it probably will energize the right at
the national level.

However, we may find, as you suggest, that it won't be a straight party-line
split because the pressure on both sides will come mainly from the wings.
Stay tuned.

--
Ed Huntress
Too_Many_Tools
2007-11-22 05:47:22 UTC
Permalink
Post by Ed Huntress
Post by Tom Gardner
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case,
and it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since
Miller in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=...
--
Ed Huntress
I'm anxious to see how the politics will roll. I know too many Democrats
at the local range that I don' think it will be split on party lines.
The early take is that it will make things tough for Democrats either way,
coming in an election year. If the Court finds for an individual right, Dems
will be pressed by the left to promise some effort to effectively overturn
it. If the Court finds against it, it probably will energize the right at
the national level.
However, we may find, as you suggest, that it won't be a straight party-line
split because the pressure on both sides will come mainly from the wings.
Stay tuned.
--
Ed Huntress- Hide quoted text -
- Show quoted text -
I see alot of dreaming here about the results the pro gun nuts want.

What if the Court says "NO"?

Ready to give up your guns?

I am not.

You may have to.

Remember the Republican Patriot Act?

TMT
Ed Huntress
2007-11-22 05:55:00 UTC
Permalink
Post by Too_Many_Tools
Post by Ed Huntress
Post by Tom Gardner
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case,
and it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since
Miller in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=...
--
Ed Huntress
I'm anxious to see how the politics will roll. I know too many Democrats
at the local range that I don' think it will be split on party lines.
The early take is that it will make things tough for Democrats either way,
coming in an election year. If the Court finds for an individual right, Dems
will be pressed by the left to promise some effort to effectively overturn
it. If the Court finds against it, it probably will energize the right at
the national level.
However, we may find, as you suggest, that it won't be a straight party-line
split because the pressure on both sides will come mainly from the wings.
Stay tuned.
--
Ed Huntress- Hide quoted text -
- Show quoted text -
I see alot of dreaming here about the results the pro gun nuts want.
What if the Court says "NO"?
Ready to give up your guns?
I am not.
You may have to.
Remember the Republican Patriot Act?
A "no" probably wouldn't have much effect. The federal precedent right now
is "no." In the territory of the 5th Circuit Court of Appeals, it's "yes."
But neither one has made much difference in the laws.

A "yes" would lead to challenges of a few blanket-type prohibitions, but
probably not most state gun-control laws. That's just an opinion, of course.

I'm assuming, by the way, that if it's a "yes," the S.C. will simultaneously
incorporate the 2nd under the due process clause of the 14th, which would
make it apply to the states. But the venue was chosen especially to avoid
making it necessary for the Court to incorporate, in order to overturn the
law in question. So that's not a certainty by any means.

If they don't incorporate the 2nd, all that will happen is that all gun
control will revert to the states.

Are we placing bets yet? <g> We would need to bet on four or five different
things.

--
Ed Huntress
Too_Many_Tools
2007-11-22 07:40:20 UTC
Permalink
Post by Ed Huntress
Post by Too_Many_Tools
Post by Ed Huntress
Post by Tom Gardner
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case,
and it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since
Miller in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=...
--
Ed Huntress
I'm anxious to see how the politics will roll. I know too many Democrats
at the local range that I don' think it will be split on party lines.
The early take is that it will make things tough for Democrats either way,
coming in an election year. If the Court finds for an individual right, Dems
will be pressed by the left to promise some effort to effectively overturn
it. If the Court finds against it, it probably will energize the right at
the national level.
However, we may find, as you suggest, that it won't be a straight party-line
split because the pressure on both sides will come mainly from the wings.
Stay tuned.
--
Ed Huntress- Hide quoted text -
- Show quoted text -
I see alot of dreaming here about the results the pro gun nuts want.
What if the Court says "NO"?
Ready to give up your guns?
I am not.
You may have to.
Remember the Republican Patriot Act?
A "no" probably wouldn't have much effect. The federal precedent right now
is "no." In the territory of the 5th Circuit Court of Appeals, it's "yes."
But neither one has made much difference in the laws.
A "yes" would lead to challenges of a few blanket-type prohibitions, but
probably not most state gun-control laws. That's just an opinion, of course.
I'm assuming, by the way, that if it's a "yes," the S.C. will simultaneously
incorporate the 2nd under the due process clause of the 14th, which would
make it apply to the states. But the venue was chosen especially to avoid
making it necessary for the Court to incorporate, in order to overturn the
law in question. So that's not a certainty by any means.
If they don't incorporate the 2nd, all that will happen is that all gun
control will revert to the states.
Are we placing bets yet? <g> We would need to bet on four or five different
things.
--
Ed Huntress- Hide quoted text -
- Show quoted text -
Ed...there you go with the "yes" dreaming again....it make work when
drafting a list for Santa but it doesn't work in real life.

A "NO" can mean the beginning of the end of private gun ownership in
the United States.

FYI...there is no standing ruling that says that personal firearm
ownership is legal.

TMT
Ed Huntress
2007-11-22 08:06:37 UTC
Permalink
Post by Too_Many_Tools
Post by Ed Huntress
Post by Too_Many_Tools
Post by Ed Huntress
Post by Tom Gardner
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case,
and it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since
Miller in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=...
--
Ed Huntress
I'm anxious to see how the politics will roll. I know too many Democrats
at the local range that I don' think it will be split on party lines.
The early take is that it will make things tough for Democrats either way,
coming in an election year. If the Court finds for an individual
right,
Dems
will be pressed by the left to promise some effort to effectively overturn
it. If the Court finds against it, it probably will energize the right at
the national level.
However, we may find, as you suggest, that it won't be a straight party-line
split because the pressure on both sides will come mainly from the wings.
Stay tuned.
--
Ed Huntress- Hide quoted text -
- Show quoted text -
I see alot of dreaming here about the results the pro gun nuts want.
What if the Court says "NO"?
Ready to give up your guns?
I am not.
You may have to.
Remember the Republican Patriot Act?
A "no" probably wouldn't have much effect. The federal precedent right now
is "no." In the territory of the 5th Circuit Court of Appeals, it's "yes."
But neither one has made much difference in the laws.
A "yes" would lead to challenges of a few blanket-type prohibitions, but
probably not most state gun-control laws. That's just an opinion, of course.
I'm assuming, by the way, that if it's a "yes," the S.C. will
simultaneously
incorporate the 2nd under the due process clause of the 14th, which would
make it apply to the states. But the venue was chosen especially to avoid
making it necessary for the Court to incorporate, in order to overturn the
law in question. So that's not a certainty by any means.
If they don't incorporate the 2nd, all that will happen is that all gun
control will revert to the states.
Are we placing bets yet? <g> We would need to bet on four or five different
things.
--
Ed Huntress- Hide quoted text -
- Show quoted text -
Ed...there you go with the "yes" dreaming again....it make work when
drafting a list for Santa but it doesn't work in real life.
I don't think so. I think the S.C. will affirm the individual right, at
least at the federal level. Kennedy is the wild card, and he'll be
influenced by the scholarship of liberal constitutional scholars Tribe,
Levinson, and Amar. Once that's done, if this case doesn't produce a
decision on incorporation, another case will be contrived to test it. If
that succeeds it will then apply to the states. It will be much easier once
it's granted at the federal level.

A lot of people who know their stuff are giving it a roughly 50% chance.
Post by Too_Many_Tools
A "NO" can mean the beginning of the end of private gun ownership in
the United States.
No way. The precedent is, and has been for most of a century, that the law
of the land is that the 2nd only allows for state militias. The state of the
substantive laws right now is determined by what will fly politically, state
by state, and nationally. A "no" vote wouldn't change that.
Post by Too_Many_Tools
FYI...there is no standing ruling that says that personal firearm
ownership is legal.
Whoa! Don't get carried away here. Every state has laws describing what
firearm ownership is legal. What you could say is that there is currently no
constitutional right to individual firearm ownership. The state of the law
in 11 of the 13 circuits is that the 2nd is basically irrelevant, not that
firearm ownership is not legal. It's only not legal when the law says it's
not legal.

--
Ed Huntress
Gunner
2007-11-22 18:41:28 UTC
Permalink
On Wed, 21 Nov 2007 23:40:20 -0800 (PST), Too_Many_Tools
Post by Too_Many_Tools
FYI...there is no standing ruling that says that personal firearm
ownership is legal.
TMT
Its not surprising that someone who blithers the term "pro gun nut" is
so often wrong....

THE SUPREME COURT'S THIRTY-FIVE

OTHER GUN CASES:

WHAT THE SUPREME COURT HAS SAID

ABOUT THE SECOND AMENDMENT


David B. Kopel [FNa1]

Saint Louis University Public Law Review

1999

Symposium, Gun Control

*99

Copyright © 1999 St. Louis University School of Law; DAVID B. KOPEL

Among legal scholars, it is undisputed that the Supreme Court has
said almost nothing about the Second Amendment. [FN1] This article
suggests that the Court has not been so silent as the conventional
wisdom suggests. While the meaning of the Supreme Court's leading
Second Amendment case, the 1939 United States v. Miller [FN2] decision
remains hotly disputed, the dispute about whether the Second Amendment
guarantees an individual right can be pretty well settled by looking
at the thirty-five other Supreme Court cases which quote, cite, or
discuss the Second Amendment. These cases suggest that the Justices of
the Supreme Court do now and usually have regarded the Second
Amendment "right of the people to keep and bear arms" as an individual
right, rather than as a right of state governments.
Chief Justice Melville Fuller's Supreme Court (1888-1910) had the
most cases involving the Second Amendment: eight. So far, the
Rehnquist Court is in second place, with six. But Supreme Court
opinions dealing with the Second Amendment come from almost every
period in the Court's history, and almost all of them assume or are
consistent with the proposition that the Second Amendment in an
individual right.
Part I of this Article discusses the opinions from the Rehnquist
Court. Part II looks at the Burger Court, and Part III at the Warren,
Vinson, and Hughes Courts. Part IV groups together the cases from the
Taft, Fuller, and Waite Courts, while Part V consolidates the Chase,
Taney, and Marshall Courts.
*100 But first, let us quickly summarize what modern legal
scholarship says about the Second Amendment, and why the Court's main
Second Amendment decision --United States v. Miller--does not by
itself settle the debate.
Dennis Henigan, lead attorney for Handgun Control, Inc., argues
that the Supreme Court has said so little about the Second Amendment
because the fact that the Second Amendment does not protect the right
of ordinary Americans to own a gun is "perhaps the most well-settled
point in American law." [FN3] Henigan argues that the Second Amendment
was meant to restrict the Congressional powers over the militia
granted to Congress in Article I of the Constitution--although Henigan
does not specify what the restrictions are. [FN4] One of Henigan's
staff criticizes the large number of American history textbooks which
"contradict[ ] a nearly unanimous line of judicial decisions by
suggesting the meaning of the Second Amendment was judicially
unsettled." [FN5]
Similarly, Carl Bogus argues that the only purpose of the Second
Amendment was to protect state's rights to use their militia to
suppress slave insurrections--although Bogus too is vague about
exactly how the Second Amendment allegedly restricted Congressional
powers. [FN6] This article refers to the *101 State's Rights theory of
the Second Amendment as the "Henigan/Bogus theory," in honor of its
two major scholarly proponents. [FN7]
In contrast to the State's Rights theory is what has become known
as the Standard Model. [FN8] Under the Standard Model, which is the
consensus of most modern legal scholarship on the Second Amendment,
the Amendment guarantees a right of individual Americans to own and
carry guns. [FN9] This modern *103 Standard Model is similar to the
position embraced by every known legal *104 scholar in the nineteenth
century who wrote about the Second Amendment: the Amendment guarantees
an individual right, but is subject to various reasonable
restrictions. [FN10]
Both the Standard Model and the State's Right theory claim that
Supreme Court precedent, particularly the case of United States v.
Miller, supports their position.
Two other scholarly theories about the Second Amendment are
interesting, but their theories have little to do with Supreme Court
precedent. Garry Wills argues that the Second Amendment has "no real
meaning," and was merely a clever trick that James Madison played on
the Anti-Federalists. [FN11] David Williams argues that the Second
Amendment once guaranteed an individual right, but no longer does so
because the American people are no longer virtuous and united, and
hence are no longer "the people" referred to in the Second Amendment.
[FN12] Neither the Wills Nihilism theory nor the Williams Character
Decline theory make claims which depend on the Supreme Court for
support, or which could be refuted by Supreme Court decisions.
Like the scholars, the lower federal courts are split on the
issue, although their split is the opposite of the scholarly one: most
federal courts which have stated a firm position have said that the
Second Amendment is not an individual right. [FN13] The federal courts
which follow the academic Standard Model *105 are in the minority,
although the ranks of the minority have grown in recent years. [FN14]
The courts on both sides, like the scholars, insist that they are
following the Supreme Court.
One approach to untangling the conflict has been to see if the lower
federal courts have actually been following Miller. In Can the Simple
Cite be Trusted?, Brannon Denning makes a persuasive argument that
some lower courts have cited Miller for propositions which cannot
reasonably be said to flow from Miller. [FN15] But part of the problem
with deciding whether the courts or the scholars are being faithful to
Miller is that Miller is such an opaque opinion.
Miller grew out of a 1938 prosecution of two bootleggers (Jack
Miller and Frank Layton) for violating the National Firearms Act by
possessing a sawed-off shotgun without having paid the required
federal tax. The federal district court dismissed the indictment on
the grounds that the National Firearms Act violated the Second
Amendment. [FN16] Freed, Miller and Layton promptly absconded, *106
and thus only the government's side was heard when the case was argued
before the Supreme Court. [FN17]
Unfortunately, Miller was written by Justice James McReynolds,
arguably one of the worst Supreme Court Justices of the twentieth
century. [FN18] The opinion nowhere explicitly says that the Second
Amendment does (or does not guarantee) an individual right. The key
paragraph of the opinion is this:

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. [FN19]

This paragraph can plausibly be read to support either the Standard
Model or the State's Rights theory. By the State's Right theory, the
possession of a gun by any individual has no constitutional
protection; the Second Amendment only applies to persons actively on
duty in official state militias.
In contrast, the Standard Model reads the case as adopting the
"civilized warfare" test of nineteenth century state Supreme Court
cases: individuals have a right to own arms, but only the type of arms
that are useful for militia service; for example, ownership of rifles
is protected, but not ownership of Bowie knives (since Bowie knives
were allegedly useful only for fights and brawls). [FN20] The case
cited by the Miller Court, Aymette v. State [FN21], is plainly in the
Standard Model, since it interprets the Tennessee Constitution's right
to arms to protect an individual right to own firearms, but only
firearms suitable for militia *107 use; in dicta, Aymette states that
the Second Amendment has the same meaning. [FN22]
While scholars can contend for different meanings, it is true that, as
a matter of pure linguistics, the Miller decision does not foreclose
either the Standard Model or the State's Rights theory.
And what is one to make of the opinion's penultimate paragraph,
stating, "In the margin some of the more important opinions and
comments by writers are cited." [FN23] In the attached footnote, the
opinion cites two prior U.S. Supreme Court opinions and six state
court opinions, all of which treat the Second Amendment or its state
analogue as an individual right, even as the opinions uphold
particular gun controls. [FN24] The footnote likewise cites treatises
by Justice Joseph Story and Thomas Cooley explicating the Second
Amendment as an individual right. [FN25] But the same Miller footnote
also cites a Kansas Supreme Court *108 decision which is directly
contrary; that case holds that the right to arms in Kansas belongs
only to the state government, and in dicta makes the same claim about
the Second Amendment. [FN26]
The Miller footnote begins with the phrase "Concerning the militia
--" but several of the cases cited have nothing to do with the
militia. For example, Robertson v. Baldwin (discussed infra) simply
offers dicta that laws which forbid the carrying of concealed weapons
by individuals do not violate the Second Amendment. [FN27]
If Miller were the only source of information about the Second
Amendment, the individual right vs. government right argument might be
impossible to resolve conclusively. Fortunately, the Supreme Court has
addressed the Second Amendment in thirty-four other cases--although
most of these cases appear to have escaped the attention of
commentators on both sides of *109 the issue. This article ends the
bipartisan scholarly neglect of the Supreme Court's writings on the
Second Amendment. [FN28]
The neglected cases are not, of course, directly about the Second
Amendment. Rather, they are about other issues, and the Second
Amendment appears as part of an argument intended to make a point
about something else. [FN29] Nevertheless, all the dicta may be
revealing. If Henigan and Bogus are correct, then the dicta should
treat the Second Amendment as a right which belongs to state
governments, not to American citizens. And if the Standard Model is
correct, then the Amendment should be treated as an individual right.
Moreover, the line between dicta and ratio decendi is rarely firm,
[FN30] and one day's dicta may become another day's holding. [FN31]
C.S. Lewis observed that proofs (or disproofs) of Christianity
found in apologetic documents are sometimes less convincing than
offhand remarks made in anthropology textbooks, or in other sources
where Christianity is only treated incidentally. The Supreme Court
cases in which the Supreme Court mentions the Second Amendment only in
passing are similarly illuminating. [FN32]
*110 Before commencing with case-by-case analysis, let me present
a chart which summarizes the various cases. [Click here for the
Chart.] The columns in chart are self-explanatory, but I will explain
two of them anyway. A "yes" answer in the "Supportive of individual
right in 2d Amendment?" column means only that the particular case
provides support for the individual rights theory; although the part
of the case addressing the Second Amendment might make sense only if
the Second Amendment is considered an individual right, the case will
not directly state that proposition. If the case is labeled
"ambiguous," then the language of the case is consistent with both the
Standard Model and with State's Rights.
The next column asks, "Main clause of 2d A. quoted without
introductory clause?" The National Rifle Association and similar
groups are frequently criticized for quoting the main clause of the
Second Amendment ("the right of the people to keep and bear Arms,
shall not be infringed") without quoting the introductory clause ("A
well-regulated Militia, being necessary to the security of a free
State"). [FN33] The critics argue that the introductory, militia,
clause controls the meaning of the main, right to arms, clause. They
contend that to omit the introductory clause is to distort completely
the Second Amendment's meaning. (And if, as these critics argue, the
Second Amendment grants a right to state governments rather than to
individuals, then omission of the introductory clause is indeed quite
misleading.) On the other hand, if the Second Amendment is about a
right of people (the main clause), and the introductory clause is
useful only to resolve gray areas (such as what kind of arms people
can own), then it is legitimate sometimes to quote the main clause
only. As the chart shows, the Supreme Court has quoted the main clause
alone much more often than the Supreme Court has quoted both clauses
together.
This Supreme Court quoting pattern is consistent with the theory
Eugene Volokh's article, The Commonplace Second Amendment, which
argues that the Second Amendment follows a common pattern of
constitutional drafting from the Early Republic: there is a "purpose
clause," followed by a main clause. [FN34] *111 For example, Rhode
Island's freedom of the press provision declared: "The liberty of the
press being essential to the security of freedom in a state, any
person may publish sentiments on any subject, being responsible for
the abuse of that liberty." [FN35] This provision requires judges to
protect every person's right to "publish sentiments on any
subject"--even when the sentiments are not "essential to the security
of freedom in a state," or when they are detrimental to freedom or
security.
Similarly, the New Hampshire Constitution declared: "Economy being
a most essential virtue in all states, especially in a young one; no
pension shall be granted, but in consideration of actual services, and
such pensions ought to be granted with great caution, by the
legislature, and never for more than one year at a time." [FN36] This
provision makes all pensions of longer than one year at a time
void--even if the state is no longer "a young one" and no longer in
need of economy. Volokh supplies dozens of similar examples from state
constitutions. [FN37]
Of the twenty-nine U.S. Supreme Court opinions (including Miller)
which have quoted the Second Amendment, twenty-three contain only a
partial quote. This quoting pattern suggests that, generally speaking,
Supreme Court justices have not considered the "purpose clause" at the
beginning of the Second Amendment to be essential to the meaning of
the main clause.


*112

I. The Rehnquist Court

Since William Rehnquist was appointed Chief Justice in 1986, six
different opinions have addressed the Second Amendment. The authors of
the opinions include the small left wing of the Court (Justices
Stevens and Ginsburg), the Court's right wing (Justices Thomas and
Rehnquist), and the Court's centrist Justice O'Connor. Every one of
the opinions treats the Second Amendment as an *114 individual right.
Except for Justice Breyer, every sitting Supreme Court Justice has
joined in at least one of these opinions-- although this joinder does
not prove that the joiner necessarily agreed with what the opinion
said about the Second Amendment. Still, five of the current Justices
have written an opinion in which the Second Amendment is considered an
individual right, and three more Justices have joined such an opinion.

A. Spencer v. Kemna

After serving some time in state prison, Spencer was released on
parole. [FN38] While free, he was accused but not convicted of rape,
and his parole was revoked. [FN39] He argued that his parole
revocation was unconstitutional. [FN40] But before his constitutional
claim could be judicially resolved, his sentence ended, and he was
released. [FN41] The majority of the Supreme Court held that since
Spencer was out of prison, his claim was moot, and he had no right to
pursue his constitutional lawsuit.
Justice Stevens, in dissent, argued that being found to have
perpetrated a crime (such as the rape finding implicit in the
revocation of Spencer's parole) has consequences besides prison:
An official determination that a person has committed a crime may
cause two different kinds of injury. It may result in tangible harms
such as imprisonment, loss of the right to vote or to bear arms, and
the risk of greater punishment if another crime is committed. It may
also severely injure the person's reputation and good name. [FN42] A
person can only lose a right upon conviction of a crime if a person
had the right before conviction. Hence, if an individual can lose his
right "to bear arms," he must possess such a right. Justice Stevens
did not specifically mention the Second Amendment, so it is possible
that his reference to the right to bear arms was to a right created by
state constitutions, rather than the federal one. (Forty-four states
guarantee a right to arms in their state constitution. [FN43]) *117
When particular gun control laws are before the Supreme Court for
either statutory or constitutional interpretation, Justice Stevens is
a reliable vote to uphold the law in question, often with language
detailing the harm of gun violence. *118 FN44] It is notable, then,
that Justice Stevens recognizes a right to bear arms as an important
constitutional right, whose deprivation should not be shielded from
judicial review. [FN45]

B. Muscarello v. United States

Federal law provides a five year mandatory sentence for anyone who
"carries a firearm" during a drug trafficking crime. [FN46] Does the
sentence enhancement apply when the gun is merely contained in an
automobile in which a person commits a drug trafficking crime--such as
when the gun is in the trunk? The Supreme Court majority said "yes."
[FN47] In dissent, Justice Ginsburg--joined by Justices Rehnquist,
Scalia [FN48], and Souter--argued that "carries a firearm" means to
carry it so that it is ready to use. [FN49] In support for her view,
Justice Ginsburg pointed to the Second Amendment "keep and bear arms"
as an example of the ordinary meaning of carrying a firearm:

It is uncontested that §924(c)(1) applies when the defendant bears
a firearm, i.e., carries the weapon on or about his person "for the
purpose of being armed and ready for offensive or defensive action in
case of a conflict." Black's Law Dictionary 214 (6th ed. 1990)
(defining the phrase "carry arms or weapons"); see ante, at 5. The
Court holds that, in addition, "carries a firearm," in the context of
§924(c)(1), means personally transporting, possessing, or keeping a
firearm in a vehicle, anyplace in a vehicle.
Without doubt, "carries" is a word of many meanings, definable
to mean or include carting about in a vehicle. But that encompassing
definition is not ubiquitously *119 necessary one. Nor, in my
judgment, is it a proper construction of "carries" as the term appears
in §924(c)(1). In line with Bailey and the principle of lenity the
Court has long followed, I would confine "carries a firearm," for
§924(c)(1) purposes, to the undoubted meaning of that expression in
the relevant context. I would read the words to indicate not merely
keeping arms on one's premises or in one's vehicle, but bearing them
in such manner as to be ready for use as a weapon.
. . .
Unlike the Court, I do not think dictionaries, surveys of press
reports, or the Bible tell us, dispositively, what "carries" means
embedded in §924(c)(1). On definitions, "carry" in legal formulations
could mean, inter alia, transport, possess, have in stock, prolong
(carry over), be infectious, or wear or bear on one's person. At issue
here is not "carries" at large but "carries a firearm." The Court's
computer search of newspapers is revealing in this light. Carrying
guns in a car showed up as the meaning "perhaps more than one third"
of the time. Ante, at 4. One is left to wonder what meaning showed up
some two thirds of the time. Surely a most familiar meaning is, as the
Constitution's Second Amendment ("keep and bear Arms") (emphasis
added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or
carry . . . upon the person or in the clothing or in a pocket, for the
purpose . . . of being armed and ready for offensive or defensive
action in a case of conflict with another person." [FN50]


Perhaps no word in the Second Amendment is as hotly contested as
the word "bear." The Standard Model scholars, following the usage of
Webster's Dictionary, [FN51] the 1776 Pennsylvania Constitution,
[FN52] and the 1787 call for a Bill of Rights from the dissenters at
the Pennsylvania Ratification Convention read the word "bear" as
including ordinary types of carrying. [FN53] Thus, a person carrying a
gun for personal protection could be said to be bearing arms. If
individuals can "bear arms," then the right to "bear arms" must belong
to individuals.
In contrast, Garry Wills (who argues that the Second Amendment has "no
real meaning" [FN54]) argues that "bear" has an exclusively military
context. [FN55] It is impossible, he writes, to "bear arms" unless
once is engaged in active militia service. *120 Hence, the right to
"bear arms" does not refer to a right of individuals to carry guns.
[FN56]
Justice Ginsburg's opinion plainly takes the former approach. She
believes that "to bear arms" is to wear arms in an ordinary way.
[FN57]
*121

C. Printz v. United States

In Printz v. United States, the Supreme Court voted 5 to 4 to
declare part of the Brady Act unconstitutional, because the Act
ordered state and local law enforcement officials to perform a federal
background check on handgun buyers. [FN58] While the Printz decision
was not a Second Amendment case, Printz did result in some Second
Amendment language from Justice Clarence Thomas's concurring opinion.
Justice Thomas joined in Justice Scalia's five-person majority
opinion, but he also wrote a separate concurring opinion--an opinion
which shows that all the *122 Second Amendment scholarship in the
legal journals is starting to be noticed by the Court.
The Thomas concurrence began by saying that, even if the Brady Act
did not intrude on state sovereignty, it would still be
unconstitutional. [FN59] The law was enacted under the congressional
power "to regulate commerce. . .among the several states." [FN60] But
the Brady Act applies to commerce that is purely intrastate--the sale
of handgun by a gun store to a customer in the same state. [FN61]
Justice Thomas suggested that although the interstate commerce clause
has, in recent decades, been interpreted to extend to purely
intrastate transactions, that interpretation is wrong. [FN62]
Even if the Brady Act were within the Congressional power over
interstate commerce, Justice Thomas continued, the Act might violate
the Second Amendment:


. . . .Even if we construe Congress' authority to regulate
interstate commerce to encompass those intrastate transactions that
"substantially affect" interstate commerce, I question whether
Congress can regulate the particular transactions at issue here. The
Constitution, in addition to delegating certain enumerated powers to
Congress, places whole areas outside the reach of Congress' regulatory
authority. The First Amendment, for example, is fittingly celebrated
for preventing Congress from "prohibiting the free exercise" of
religion or "abridging the freedom of speech." The Second Amendment
similarly appears to contain an express limitation on the government's
authority. That Amendment provides: "[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." This Court has not had
recent occasion to consider the nature of the substantive right
safeguarded by the Second Amendment. [n.1] If, however, the Second
Amendment is read to confer [FN63] a personal right to "keep and bear
arms," *123 a colorable argument exists that the Federal Government's
regulatory scheme, at least as it pertains to the purely intrastate
sale or possession of firearms, runs afoul of that Amendment's
protections. [n.2] As the parties did not raise this argument,
however, we need not consider it here. Perhaps, at some future date,
this Court will have the opportunity to determine whether Justice
Story was correct when he wrote that the right to bear arms "has
justly been considered, as the palladium of the liberties of a
republic." 3 J. Story, Commentaries §1890, p. 746 (1833). In the
meantime, I join the Court's opinion striking down the challenged
provisions of the Brady Act as inconsistent with the Tenth Amendment.
[FN64]

There are several notable elements in the Thomas concurrence. First,
Justice Thomas equates the Second Amendment with the First Amendment.
This is consistent with the rule from the Valley Forge case that all
parts of the Bill of Rights are on equal footing; none is preferred
(or derogated). [FN65] He implicitly rejected second-class citizenship
for the Second Amendment.
Justice Thomas then suggests that the Brady Act could be invalid
under the Second Amendment. [FN66] Regarding right to bear arms
provisions in state constitutions, some state courts have upheld
various gun restrictions as long as all guns are not banned. [FN67]
Justice Thomas plainly does not take such a weak position in defense
of the Second Amendment. [FN68] His implication is that by requiring
government permission and a week-long prior restraint on the right to
buy a handgun, the Brady Act infringed the Second Amendment.
And of course by recognizing that handguns are a Second Amendment
issue, Justice Thomas implicitly rejects the argument that the Second
Amendment merely protects "sporting weapons" (usually defined as a
subset of rifles and shotguns). [FN69]
Noting that the Second Amendment was not at issue in the case
before the Court (the case was brought by sheriffs who did not want to
be subject to federal commands, rather by gun buyers or gun dealers),
Justice Thomas gently urges the rest of the Court to take up a Second
Amendment case in the future. And he leaves no doubt about his
personal view of the issue, as he quotes the 19th century legal
scholar and Supreme Court Justice Joseph Story, who saw the right to
bear arms "as the palladium of the liberties of a republic." [FN70]
*124

There are two footnotes in the Second Amendment portion of the
Thomas concurrence. In the first footnote, the Justice states that the
Supreme Court has not construed the Second Amendment since the 1939
case United States v. Miller (which upheld the National Firearms Act's
tax and registration requirement for short shotguns [FN71]). He added
that the Supreme Court has never directly ruled on the individual
rights issue.

1 Our most recent treatment of the Second Amendment occurred in
United States v. Miller, 307 U.S. 174 (1939), in which we reversed the
District Court's invalidation of the National Firearms Act, enacted in
1934. In Miller, we determined that the Second Amendment did not
guarantee a citizen's right to possess a sawed off shotgun because
that weapon had not been shown to be "ordinary military equipment"
that could "contribute to the common defense." Id., at 178. The Court
did not, however, attempt to define, or otherwise construe, the
substantive right protected by the Second Amendment.

The second footnote addressed the growing scholarship on the
Second Amendment:

2 Marshaling an impressive array of historical evidence, a growing
body of scholarly commentary indicates that the "right to keep and
bear arms" is, as the Amendment's text suggests, a personal right.
See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo
American Right 162 (1994); S. Halbrook, That Every Man Be Armed, The
Evolution of a Constitutional Right (1984); Van Alstyne, The Second
Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994);
Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J.
1193 (1992); Cottrol & Diamond, The Second Amendment: Toward an Afro
Americanist Reconsideration, 80 Geo. L. J. 309 (1991); Levinson, The
Embarrassing Second Amendment, 99 Yale L. J. 637 (1989); Kates,
Handgun Prohibition and the Original Meaning of the Second Amendment,
82 Mich. L. Rev. 204 (1983). Other scholars, however, argue that the
Second Amendment does not secure a personal right to keep or to bear
arms. See, e.g., Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365
(1993); Williams, Civic Republicanism and the Citizen Militia: The
Terrifying Second Amendment, 101 Yale L. J. 551 (1991); Brown, Guns,
Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford
Levinson's The Embarrassing Second Amendment, 99 Yale L. J. 661
(1989); Cress, An Armed Community: The Origins and Meaning of the
Right to Bear Arms, 71 J. Am. Hist. 22 (1984). Although somewhat
overlooked in our jurisprudence, the Amendment has certainly
engendered considerable academic, as well as public, debate.

In the second footnote, Justice Thomas points out that the text of the
Second Amendment (which refers to "the right of the people") suggests
that the Second Amendment right belongs to individuals, not the
government.
*125

As Justice Thomas notes, a large body of legal scholarship in the
last fifteen years has examined the historical evidence, and found
very strong proof that the Second Amendment guarantees an individual
right. [FN72]
The Supreme Court does not always follow the viewpoint of the
legal academy. But for most of this century, the Court has always been
influenced by the academy's opinion. In the 1940s, for example, legal
scholars paid almost no attention to the Second Amendment, and neither
did the Supreme Court; in that decade, the Second Amendment was
mentioned only once, and that mention was in a lone dissent. [FN73]
But starting in the late 1970s, a Second Amendment revolution began to
take place in legal scholarship. That an intellectual revolution was
in progress became undeniable after the Yale Law Journal published
Sanford Levinson's widely influential article The Embarrassing Second
Amendment in 1989. [FN74] Since then, scholarly attention to the
Second Amendment has grown even more rapidly. And more importantly,
for purposes of this article, the Supreme Court Justices have raised
the Second Amendment in six different cases in 1990-98. Six mentions
in nine years hardly puts the Second Amendment on the same plane as
the First Amendment; but six times in one decade is a rate six times
higher than in the 1940s.

D. Albright v. Oliver

Albright involved a Section 1983 civil rights lawsuit growing out
of a malicious decision to prosecute someone for conduct which was not
crime under the relevant state law. [FN75] The issue before the
Supreme Court was whether the prosecutor's action violated the
defendant's Fourteenth Amendment Due Process rights. The majority said
"no," in part because the claim (growing out of the victim's unlawful
arrest) would be better presented as a Fourth Amendment claim. [FN76]
Justice Stevens dissented, and was joined by Justice Blackmun;
part of the dissent quoted Justice Harlan's analysis of the meaning of
the Fourteenth Amendment, and the Fourteenth Amendment's protection of
the "right to keep and bear arms":
*126 At bottom, the plurality opinion seems to rest on one fundamental
misunderstanding: that the incorporation cases have somehow
"substituted" the specific provisions of the Bill of Rights for the
"more generalized language contained in the earlier cases construing
the Fourteenth Amendment." Ante, at 7. In fact, the incorporation
cases themselves rely on the very "generalized language" the Chief
Justice would have them displacing. Those cases add to the liberty
protected by the Due Process Clause most of the specific guarantees of
the first eight Amendments, but they do not purport to take anything
away; that a liberty interest is not the subject of an incorporated
provision of the Bill of Rights does not remove it from the ambit of
the Due Process Clause. I cannot improve on Justice Harlan's statement
of this settled proposition:

"The 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, 543 (1961) (dissenting opinion). [FN77]
I have no doubt that an official accusation of an infamous crime
constitutes a deprivation of liberty worthy of constitutional
protection. The Framers of the Bill of Rights so concluded, and there
is no reason to believe that the sponsors of the Fourteenth Amendment
held a different view. The Due Process Clause of that Amendment should
therefore be construed to require a responsible determination of
probable cause before such a deprivation is effected. [FN78]

In Poe v. Ullman, the second Justice Harlan construed the "liberty"
protected by the Fourteenth Amendment. [FN79] Although Justice
Harlan's words originally were written in dissent, they have been
quoted in later cases as the opinion of the Court. [FN80] Fourteenth
Amendment "liberty" of course belongs to individuals, not to state
governments. The point of the Fourteenth Amendment was to protect
individual liberty from state infringement.
This "liberty" is not limited to "the specific guarantees
elsewhere provided in the Constitution" including "the right to keep
and bear arms." These individual *127 rights in the Harlan list, like
other individual rights in the Bill of Rights, might be included in
the Fourteenth Amendment's protection of "liberty" against state
action. The point made by Justice Harlan (and Justice Stevens, quoting
Justice Harlan), is that Fourteenth Amendment "liberty" includes
things which are not part of the Bill of Rights, and does not
necessarily include every individual right which is in the Bill of
Rights.
While the Harlan quote makes no direct claim about whether the
individual Bill of Rights items should be incorporated in the
Fourteenth Amendment, Justice Harlan was plainly saying that simply
because an individual right is protected in the Bill of Rights does
not mean that it is protected by the Fourteenth Amendment. (Justice
Black's view was directly opposite. [FN81]) Therefore, although the
Harlan quote is not dispositive, the quote could appropriately be used
to argue against incorporating the Second Amendment into the
Fourteenth.
At the same time, the quote obviously treats the Second Amendment
as an individual right. That is why Justice Harlan used the Second
Amendment (along with the religion, speech, press, freedom from
unreasonable searches, and property) to make a point about what kind
of individual rights are protected by the Fourteenth Amendment.
As we shall see below, Justice Harlan's words are the words about
the Second Amendment which the Supreme Court has quoted most often.

E. Planned Parenthood v. Casey

Planned Parenthood was a challenge to a Pennsylvania law imposing
various restrictions on abortion. [FN82] In discussing the scope of
the Fourteenth Amendment, Justice Sandra Day O'Connor's opinion for
the Court approvingly quoted Justice Harlan's earlier statement that
"the right to keep and bear arms" is part of the "full scope of
liberty" contained in the Bill of Rights, and made applicable to the
state by the Fourteenth Amendment. [FN83] Although the Planned
Parenthood decision was fractured, with various Justices joining only
selected portions of each others' opinions, the portion where Justice
O'Connor quoted Justice Harlan about the Fourteenth and Second
Amendments was joined by four other Justices, and represented the
official opinion of the Court.
Planned Parenthood is the second of the four Supreme Court
opinions that quote the Harlan dissent in Poe. (The other two will be
discussed infra.) Had the authors of those opinions chosen to delete
the "right to keep and bear arms" words, by using ellipses, they
certainly could have done so. As we shall see when we come to the
original Harlan opinion in Poe v. Ullman, the full Harlan analysis
*128 of the scope of Fourteenth Amendment liberty includes important
material which later Justices carefully avoided quoting. [FN84]

F. United States v. Verdugo-Urquidez

United States v. Verdugo-Urquidez [FN85] involved American drug
agents' warrantless search of a Mexican's homes in Mexicali and San
Felipe, Mexico. When Verdugo-Urquidez was prosecuted in a United
States court for distribution of marijuana, his attorney argued that
the evidence seized from his homes could not be used against him.
[FN86] If the homes in question had been located in the United States
and owned by an American, the exclusionary rule clearly would have
forbade the introduction of the evidence. But did the U.S. Fourth
Amendment protect Mexican citizens in Mexico?
Chief Justice Rehnquist's majority opinion said "no." Part of the
Court's analysis investigated who are "the people" protected by the
Fourth Amendment:

"[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 Amendment provide that certain rights
and power 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 Amendment, and to whom rights
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. [FN87] *129

By implication therefore, if "the people" whose right to arms is
protected by the Second Amendment are American people, then "the right
of the people" in the Second Amendment does not mean "the right of the
states." [FN88] To adopt the *130 Henigan/Bogus theory, and find that
the Second Amendment "right of the people" belongs to state
governments would require a rejection of Verdugo's explication of who
are "the people" of the Second Amendment and the rest of the
Constitution.
The dissent by Justice Brennan would have given "the people" a
broader reading: "'The People' are 'the governed." ' [FN89] The
dissent's reading is likewise consistent only with the Standard Model,
and not with the State's Rights view. If "the people" of the Second
Amendment are "the governed," then the "right of the people" must
belong to people who are governed, and not to governments. [FN90]
*131

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. [FN91] 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. [FN92] The Supreme Court majority, of course,
put the Second Amendment back in.

II. The Burger Court

The Second Amendment record of the Burger Court is more complex than
that of the Rehnquist Court. The Rehnquist Court dicta about the
Second Amendment points exclusively to the Second Amendment as an
individual right. Indeed, except for Justice Thomas's observation that
Miller did not resolve the individual rights issue, nothing in the
Rehnquist Court's record contains even a hint that the Second
Amendment might not be an individual right. In contrast, the Burger
Court's dicta are not so consistent.

A. Lewis v. United States

The one Supreme Court majority opinion which is fully consistent
with the Henigan/Bogus state's rights theory is Lewis v. United
States. [FN93] Interestingly, the same advocates who dismiss Verdugo
because it was not a Second Amendment case rely heavily on Lewis even
though it too is not a Second Amendment *132 case. The issue in Lewis
was primarily statutory interpretation, and secondarily the Sixth
Amendment. A federal statute imposes severe penalties on persons who
possess a firearm after conviction for a felony. [FN94] In 1961, Lewis
had been convicted of burglary in Florida [FN95]; since Lewis was not
provided with counsel, his conviction was invalid under the rule of
Gideon v. Wainright. [FN96] The question for the Court was whether
Congress, in enacting the 1968 law barring gun possession by a person
who "has been convicted by a court of the United States or of a State.
. .of a felony," meant to include persons whose convictions had been
rendered invalid by the 1963 Gideon case. Writing for a six-justice
majority, Justice Blackmun held that the statutory language did apply
to person with convictions invalid under Gideon. [FN97]
Given the non-existent legislative history on the point, Justice
Blackmun was forced to be rather aggressive in his reading of
Congressional intent. For example, Senator Russell Long, the chief
sponsor of the Gun Control Act of 1968, had explained that "every
citizen could possess a gun until the commission of his first felony.
Upon his conviction, however, Title VII would deny. . .the right to
possess a firearm. . . ." [FN98] This supposedly showed Congressional
intent to disarm people like Lewis, since the Senator had "stressed
conviction, not a 'valid' conviction." [FN99] By this reasoning, the
Gun Control Act of 1968 would likewise apply to Scottsboro Boys; they
had been tortured into confessing a crime which they did not commit,
but they did indeed have a "conviction" for murder, even if not "a
valid conviction." [FN100] Justice Brennan's dissent pointed out that
the majority's reasoning would impose the Gun Control Act even on
people whose convictions had been overturned by an appellate court.
[FN101]
Did the Gun Control Act (as interpreted by the Court) violate
equal protection?

Congress could rationally conclude that any felony conviction,
even an allegedly invalid one, is a sufficient basis on which to
prohibit possession of a firearm. See, e.g., United States v. Ransom,
515 F.2d 885, 891-892 (CA5 1975), cert. Denied, 424 U.S. 944 (1976).
This Court has repeatedly recognized that a legislature
constitutionally may prohibit a convicted felon from engaging in
activities far more fundamental than the possession of a firearm. See
Richardson v. Ramirez, 418 U.S. 24 (1974)(disenfranchisement); De Veau
v. Braisted, 363 U.S. 144, 363 U.S. 144 (1960)(proscription against
holding *133 office in a waterfront labor organization); Hawker v. New
York, 170 U.S. 189 (1898)(prohibition against the practice of
medicine). [FN102]

From this, it is reasonable to infer that possession of a firearm is a
"right," but a right which is far less "fundamental" than voting,
serving as an officer in a union, or practicing medicine. As to
whether possessing a firearm is a constitutional right, the opinion
does not say. But the opinion could certainly be cited for support
that arms possession is not "fundamental" enough to be protected by
the Fourteenth Amendment's due process clause.
In a footnote of the section supporting the rationality of a
statute disarming convicted felons, Justice Blackmun wrote:

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 (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 (1972)(the latter three cases holding, respectively,
that 1202(a)(1), 922(g), and 922(a)(6) do not violate the Second
Amendment). [FN103]

Attorney Stephen Halbrook (the successful plaintiffs' attorney in the
Supreme Court gun cases of Printz v. United States [FN104], and United
States v. Thompson/Center [FN105]) reads Lewis as reflecting the
principle that since a legislature may deprive a felon "of other civil
liberties, and may even deprive a felon of life itself--felons have no
fundamental right to keep and bear arms." [FN106]
As a matter of formal linguistics, Halbrook's reading of Lewis is
not impermissible. But it is also possible to read the Lewis opinion
as saying, in effect, "since no-one has a right to have a gun, a law
against felons owning guns does not infringe on Constitutional
rights."
What of the three Court of Appeals cases cited by Justice
Blackmun? *134 The Three Winchester 30-30 Caliber Lever Action
Carbines case upholds the forfeiture of guns possessed by a convicted
felon. The footnote cited by the Supreme Court states:
Apparently at the district court level the defendant argued that
18 U.S.C. App. § 1202 was invalid as an "infringement of the second
amendment's protection of the right to bear arms, the first
amendment's prohibition of bills of attainder and ex post facto laws,
and the fourteenth amendment's due process clause." These arguments
were appropriately rejected. [citations omitted] [FN107]
The Cody [FN108] case upheld the conviction of a felon who
falsified a federal gun registration form and falsely claimed that he
had no felony conviction. Regarding Cody's Second Amendment claim, the
Eighth Circuit stated:

It has been settled that the Second Amendment is not an absolute
bar to congressional regulation of the use or possession of firearms.
The Second Amendment's guarantee extends only to use or possession
which "has some reasonable relationship to the preservation or
efficiency of a well regulated militia." Id [Miller]. At 178, 59 S.
Ct. at 818. See United States v. Synnes, 438 F.2d 764, 772 (8th Cir.
1971), vacated on other grounds, 404 U.S. 1009, 92 S. Ct. 687, 30 L.
Ed. 2d 657 (1972); Cases v. United States, 131 F.2d 916, 922 (1st Cir.
1942), cert. denied sub nom., Velazquez v. United States, 319 U.S.
770, 63 S. Ct. 1431, 87 L. Ed. 1718 (1943). [FN109] We find no
evidence that the prohibition of § 922(a) (6) obstructs the
maintenance of a well regulated militia. [FN110]

In Johnson, the Fourth Circuit upheld the Gun Control Act as
applied to a convicted felon who transported a firearm in interstate
commerce. [FN111] Regarding Johnson's Second Amendment claim, the
Circuit wrote that "The courts have consistently held that the Second
Amendment only confers a collective right of keeping and bearing arms
which must bear a 'reasonable relationship to the preservation or
efficiency of a well regulated militia." ' [FN112]
Now a "collective right" can be read two ways: it can be like
"collective property" in a Communist property; since it belongs to all
the people collectively, it belongs only to the government.
Alternatively, a "collective right" to arms can be a right of all the
people to have a militia, and for this purpose, *135 each person
has a right to possess arms for militia purposes (but not to possess
arms for other purposes, such as self-defense). [FN113] Indeed, this
is the approach taken by Aymette, the Tennessee Supreme Court case
which is the sole citation for the rule of decision in Miller; Aymette
states that the Second Amendment protects individual possession of
militia-type arms, so that those individuals may collectively exercise
their rights in a militia. [FN114]
Neither Lewis nor its three cited Court of Appeals cases claim
that the Second Amendment right belongs to state governments. And none
of them goes so far as to claim that law-abiding American citizens
have no Second Amendment right to possess arms. But Lewis and its
cited cases, especially Johnson, certainly come close to that
proposition. Although Halbrook's reading of Lewis is not formally
wrong, the spirit of Lewis has little in common with the Standard
Model of the Second Amendment.
If Lewis were the Supreme Court's last word on the Second
Amendment, the Standard Model, no matter how accurate in its
assessment of original intent, would seem on shaky ground as a
description of contemporary Supreme Court doctrine. But Lewis, while
not ancient, is no longer contemporary. As discussed above, six
subsequent Supreme Court cases have addressed the Second Amendment as
an individual right. Only two justices from the Lewis majority remain
on the Court, and both of those justices (Rehnquist and Stevens) have
written 1990s opinions which regard the Second Amendment as an
individual right.
The Rehnquist cases suggest that it is unlikely that the current
Court would read Lewis's hostile but ambiguous language as negating an
individual right.

B. Moore v. East Cleveland

Not only do the Rehnquist cases impede any effort to read Lewis as
the definitive state's right case, so does a case decided four years
before Lewis. The Moore v. East Cleveland litigation arose out of a
zoning regulation which made it illegal for extended families to live
together. [FN115] The plurality opinion by Justice Powell found in the
Fourteenth Amendment a general protection for families to make their
own living arrangements. [FN116] Thus, the East Cleveland law, which,
for example, forbade two minor cousins to live with their grandmother,
[FN117] was unconstitutional.
*136 In discussing the boundaries of the Fourteenth Amendment, the
Powell plurality opinion for the Court quoted from Justice Harlan's
dissent in Poe v. Ullman. This was the same language that was later
quoted by Justice O'Connor's majority opinion in Planned Parenthood v.
Casey, [FN118] and by Justice Stevens' dissent in Albright v. Oliver
[FN119]:

But unless we close our eyes to the basic reasons why certain
rights associated with the family have been accorded shelter under the
Fourteenth Amendment's Due Process Clause, we cannot avoid applying
the force and rationale of these precedents to the family choice
involved in this case.
Understanding those reasons requires careful attention to this
Court's function under the Due Process clause. Mr. Justice Harlan
described it eloquently:
Due process cannot be reduced to any formula; its content cannot
be determined by reference to any code. . .The balance of which I
speak is the balance struck by this country, having regard to what
history teaches are the traditions from which it developed as well as
the traditions from which it broke. That tradition is a living thing.
. . .
[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 freedom from all substantial arbitrary
impositions and purposeless restraints" Poe v. Ullman, supra, at
542-543 (dissenting opinion). [FN120]

In dissent, Justice White also quoted from Justice Harlan's words
in Poe. While Justice White included the language about the Second
Amendment, he did not include the preceding paragraph about tradition.
[FN121]
Since the Fourteenth Amendment belongs exclusively to individuals,
and not to state governments, the only possible reading of Moore v.
East Cleveland is that the Second Amendment protects an individual
right.
The "tradition" paragraph from Justice Harlan, quoted by Justice
Powell, strengthens an argument for incorporating the Second
Amendment. The right to arms had roots as one of the "rights of
Englishmen" recognized by the English 1689 Bill of Rights, [FN122] and
was adopted in nine of the first fifteen states' *137 constitutions.
[FN123] When the Constitution was proposed, five state ratifying
conventions called for a right to arms--more than for any other single
right that became part of the Bill of Rights. [FN124] With the
exception of a single concurring opinion by an Arkansas judge in 1842,
[FN125] every known judicial opinion and scholarly commentary from the
nineteenth century treated the Second Amendment as an individual
right. [FN126]
Justice Harlan's "tradition is a living thing" analysis also looks
at whether the right in question is supported by modern "tradition."
The right to arms fares well under this analysis too. Between a third
and a half of all American households choose to own firearms, [FN127]
and many others own other types of "arms" (such as edged weapons)
which might fall within the scope of protected "arms." [FN128] Today,
forty-four state constitutions guarantee a right to arms [FN129]; in
15 states in the last three decades, voters have added or strengthened
an arms right to their state constitution, always by a very large
majority. [FN130] Twenty years ago, only a few states allowed ordinary
citizens to obtain a permit carry a concealed handgun for protection;
now twenty-nine states have "shall issue" laws, and two states require
no permit at all. [FN131]
Contrast all the "traditional" support for the right to arms with
the absence of such support for the Fifth Amendment's guarantee
against the taking of property without due process and just
compensation. No state ratifying convention had demanded such a
clause, and no such right was recognized in in the *138 English Bill
of Rights. [FN132] If the just compensation is "traditional" enough to
have been incorporated, as it has been, [FN133] the argument for
incorporating the Second Amendment is all the stronger.
But while the Harlan language quoted in East Cleveland has
favorable implications for Second Amendment incorporation, East
Cleveland does not itself perform the incorporation. [FN134]
And while East Cleveland's implication for the Second Amendment as
an individual right seems clear enough under its own terms, Justice
Powell's personal views appear to have changed after 1976. After
retiring from the Court, in 1988 he gave a speech to the American Bar
Association in which he said that the Constitution should not be
construed to guarantee a right to own handguns [FN135]; this speech
was not necessarily inconsistent with East Cleveland, since a Second
Amendment right to arms might exclude some types of arms. But in 1993,
Justice Powell went even further, suggesting in a television interview
that the Constitution should not be read to as guaranteeing a right to
own even sporting guns. [FN136]
*139 Whatever the evolution of Justice Powell's thoughts about gun
rights, the only words he ever put in the United States Reports treat
the Second Amendment as an individual right.

C. Adams v. Williams

The only written opinion from a Supreme Court Justice which
plainly rejects an individual right came from Justice Douglas,
dissenting in the 1972 case of Adams v. Williams. [FN137] Acting on a
tip, a police officer stopped a motorist for questioning, and then
grabbed a revolver hidden in the driver's waistband. [FN138] The
Supreme Court majority upheld the officer's actions as a reasonable
effort to protect his safety. [FN139]

Justice Douglas, a strong defender of the Fourth Amendment right
to be free from unreasonable searches, dissented. [FN140] After
discussing Fourth Amendment issues, Justice Douglas then editorialized
in favor of handgun control and prohibition, and asserted that the
Second Amendment posed no barrier to severe gun laws:

The police problem is an acute one not because of the Fourth
Amendment, but because of the ease with which anyone can acquire a
pistol. A powerful lobby dins into the ears of our citizenry that
these gun purchases are constitutional rights protected by the Second
Amendment, which 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."
There is under our decisions no reason why stiff state laws
governing the purchase and possession of pistols may not be enacted.
There is no reason why pistols may not be barred from anyone with a
police record. There is no reason why a State may not require a
purchaser of a pistol to pass a psychiatric test. There is no reason
why all pistols should not be barred to everyone except the police.
The leading case is United States v. Miller, 307 U.S. 174,
upholding a federal law making criminal the shipment in interstate
commerce of a sawed-off shotgun. The law was upheld, there being no
evidence that a sawed-off shotgun had "some reasonable relationship to
the preservation or efficiency of a well regulated militia." Id., at
178. The Second Amendment, it was held, "must be interpreted and
applied" with the view of maintaining a "militia."
"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 *140 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." Id., at 178-179.
Critics say that proposals like this water down the Second
Amendment. Our decisions belie that argument, for the Second
Amendment, as noted, was designed to keep alive the militia. But if
watering-down is the mood of the day, I would prefer to water down the
Second rather than the Fourth Amendment. I share with Judge Friendly a
concern that the easy extension of Terry v. Ohio, 392 U.S. 1, to
"possessory offenses" is a serious intrusion on Fourth Amendment
safeguards. "If it is to be extended to the latter at all, this should
be only where observation by the officer himself or well authenticated
information shows 'that criminal activity may be afoot." ' 436 F.2d,
at 39, quoting Terry v. Ohio, supra, at 30. [FN141]

Justice Douglas's statement is a clear affirmation of the
anti-individual interpretation of the Second Amendment which is
espoused by the anti-gun lobbies. Since Justice Douglas was writing in
dissent, his opinion creates no legal precedent. Nevertheless, the
opinion is emblematic of the belief of some civil libertarians that
the move to "water down" the Fourth Amendment can be forestalled by
watering down the Second Amendment.

Justice Brennan did not join the Douglas dissent, but instead
wrote his own. Justice Brennan presciently noted that the Court's
loose standard for "stop and frisk" would become a tool for police
officers to search people at will, with officer safety often serving
as a mere pretext. [FN142] (Adams v. Williams is one of the key cases
opening the door to the broad variety of warrantless searches which
are now allowed.) Justice Brennan also noted the illogic of allowing
stop-and-frisk for guns in a state which allows citizens to carry
concealed handguns. [FN143] (Connecticut was one of the first states
to adopt "shall issue" laws for concealed handgun permits; now,
thirty-one states have such laws. [FN144])

Justice Marshall's dissent made a similar point, noting that after
the officer discovered the gun, he immediately arrested Williams,
without asking if Williams had a permit. [FN145]

D. Roe v. Wade

*141

The year after Justice Douglas took a clear stand against
individual Second Amendment rights in Adams, Justice Stewart authored
an opinion in the opposite direction.
The majority opinion in Roe v. Wade, [FN146] written by Justice
Harry Blackmun, has been justly criticized for having no connection
with the text of the Constitution, and only a tenuous connection with
the prior precedents of the Supreme Court. [FN147] Justice Potter
Stewart, perhaps recognizing the weakness of the Blackmun opinion,
authored a concurring opinion coming to the same result as Justice
Blackmun, but attempting to ground the result more firmly in
precedent. [FN148] As part of the analysis arguing that the right to
abortion was part of the "liberty" protected by the Fourteenth
Amendment, Justice Stewart quoted Justice Harlan's dissenting opinion
in Poe v. Ullman [FN149], which had listed the right to keep and bear
arms as among the liberties guaranteed by the Fourteenth Amendment:

As Mr. Justice Harlan once wrote: "[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, 543 (opinion dissenting from dismissal of appeal) (citations
omitted). In the words of Mr. Justice Frankfurter, "Great concepts
like . . . 'liberty' . . . were purposely left to gather meaning from
experience. For they relate to the whole domain of social and economic
fact, and the statesmen who founded this Nation knew too well that
only a stagnant society remains unchanged." National Mutual Ins. Co.
v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).
[FN150]

Thus, the Harlan dissenting language about the Second Amendment,
from Poe v. Ullman, has been quoted in one majority opinion (Planned
Parenthood v. Casey [FN151]), one plurality opinion (Moore v. East
Cleveland [FN152]), two dissents*142 (Albright v. Oliver and Moore v.
East [FN153]), and one concurrence (Roe v. Wade [FN154]). In contrast,
the Douglas dissenting language about the Second Amendment, from Adams
v. Williams, [FN155] has never been quoted in an opinion by any
Justice.

E. Laird v. Tatum

During the Cold War and the Vietnam War, the United States Army
illegally spied on American anti-war critics. [FN156] When the Army's
conduct was to discovered, a group of individuals who had been spied
upon brought suit in federal court. [FN157] In a sharply divided
five-four decision, the Supreme Court majority held that the suit was
not justiciable. [FN158] The plaintiffs could not show that they had
been harmed by the Army, or that there was a realistic prospect of
future harm, and hence there was no genuine controversy for a federal
court to hear. [FN159] Justice Douglas (joined by Justice Marshal)
penned a fiery dissent, invoking the long struggle to free civil life
from military domination. [FN160]
Justice Douglas began by examining the power which the
Constitution grants Congress over the standing army and over the
militia. [FN161] Since Congress is not granted any power to use the
army or militia for domestic surveillance, it necessarily follows that
the army has no power on its own to begin a program of domestic
surveillance. [FN162]
Moving onto a broader discussion of the dangers of military
dictatorship, Justice Douglas quoted an article which Chief Justice
Earl Warren had written in the New York University Law Review, which
mentioned the Second Amendment as one of the safeguards intended to
protect America from rule by a standing army. [FN163]
As Chief Justice Warren has observed, the safeguards in the main
body of the Constitution did not satisfy the people on their fear and
concern of military dominance:

"They were reluctant to ratify the Constitution without further
assurances, and thus we find in the Bill of Rights Amendments 2 and 3,
specifically authorizing a decentralized militia, guaranteeing the
right of the people to keep and bear arms, and prohibiting the
quartering of troops in any house in *143 time of peace without the
consent of the owner. Other Amendments guarantee the right of the
people to assemble, to be secure in their homes against unreasonable
searches and seizures, and in criminal cases to be accorded a speedy
and public trial by an impartial jury after indictment in the district
and state wherein the crime was committed. The only exceptions made to
these civilian trial procedures are for cases arising in the land and
naval forces. Although there is undoubtedly room for argument based on
the frequently conflicting sources of history, it is not unreasonable
to believe that our Founders' determination to guarantee the
preeminence of civil over military power was an important element that
prompted adoption of the Constitutional Amendments we call the Bill of
Rights." [FN164]

The Earl Warren law review language is, on its face, consistent with
individual rights. He listed the right to arms among other individual
rights, and he treated the Second Amendment's subordinate clause
(about the importance of well-regulated militia) as protecting
something distinct from the Second Amendment's main clause (the right
of the people to keep and bear arms). [FN165]
But based on Justice Douglas's dissent the same year in Adams, we
cannot ascribe to Justice Douglas the full implication of what Chief
Justice Warren wrote in the N.Y.U. Law Review. And while Chief Justice
Warren's N.Y.U. article is interesting, Chief Justice Warren never
wrote anything about the Second Amendment in a Supreme Court opinion.

III. The Warren, Vinson, and Hughes Courts

During the tenure of Chief Justices Earl Warren (1953-69) and Fred
Vinson (1946-53), opinions in nine cases addressed the Second
Amendment. Seven of those opinions (majority opinions by Justices
Brennan, Frankfurter, Harlan, and Jackson; a concurrence by Justice
Black; and dissents by Justices Black and Harlan) recognized an
individual right in the Second Amendment. The eighth case, an "appeal
dismissed" contained no explanation, and thus was consistent with both
the Standard Model individual right and the Henigan/Bogus state's
right. The earliest case in this period was a 1934 decision that used
the Second Amendment to support a state's right to control its
militia. [FN166]

A. Burton v. Sills

*144 Burton v. Sills involved a challenge to the then- new gun
licensing law in New Jersey. [FN167] The law did not ban any guns, but
established a licensing system intended to screen out people with
serious criminal convictions, substance abusers, and the like. After
the New Jersey Supreme Court rejected a Second Amendment challenge to
the law [FN168], the plaintiffs asked the Supreme Court to review the
case; the request came in the form of an "appeal," rather than a
petition for a writ of certiorari. [FN169]
The United States Supreme Court declined to hear the case. [FN170]
Since the case had come by appeal, rather than petition for a writ,
the Court wrote the standard phrase used at the time in denying an
appeal: "The motion to dismiss is granted and the appeal is dismissed
for want of a substantial federal question." [FN171]
The Supreme Court has explained that dismissals such as the one in
Burton have some value in guiding lower courts:

Summary affirmances and dismissals for want of a substantial
federal question without doubt reject the specific challenges
presented in the statement of jurisdiction and do leave undisturbed
the judgment appealed from. They do prevent lower courts from coming
to opposite conclusions on the precise issues presented and
necessarily decided by those actions. After Salera, for example, other
courts were not free to conclude that the Pennsylvania provision
invalidated was nevertheless constitutional. Summary actions, however,
including Salera, should not be understood as breaking new ground but
as applying principles established by prior decisions to the
particular facts involved. [FN172]

Thus, following the appeal dismissal in Burton v. Sills, a lower
federal court could not conclude that the New Jersey gun licensing law
violated the Second Amendment.
The appeal dismissal does not necessarily endorse the reasoning of
the state court against which the appeal was taken. (The New Jersey
Supreme Court had said that the Second Amendment is not an individual
right. [FN173])
*145 The plaintiffs in Burton had conceded that prior Supreme
Court cases (particularly the 1886 Presser case) had said that the
Second Amendment limits only the federal government, and not state
governments. [FN174] The plaintiffs invited the courts to use the
Burton case as an opportunity to reverse prior precedent. [FN175] The
appeal dismissal in Burton may be read as the Court's declining the
invitation to re-open the issue decided by Presser.
Justice Thomas's concurrence in Printz, [FN176] suggesting that
the Brady Act waiting period may violate the Second Amendment, implies
he would not read Burton as asserting that a New Jersey-style gun
licensing system would be constitutional if enacted by the Congress.
Reading Burton as an authorization for sweeping federal gun licensing
would be inconsistent with the Supreme Court's teaching that appeal
dismissals "should not be understood as breaking new ground." [FN177]
Given the plaintiffs' requested grounds for Supreme Court review
(to overturn Presser) it is logical to view Burton as a re-affirmance
of Presser. [FN178]
On the other hand, since Burton contains no explicit reasoning,
the case is not directly contradictory to the Henigan/Bogus theory.

B. Duncan v. Louisiana

In this case, the Supreme Court incorporated the Sixth Amendment
right to jury trial, as part of the Fourteenth Amendment's "due
process" guarantee. [FN179] Justice Black, joined by Justice Douglas,
concurred, and restated his argument from Adamson v. California
[FN180] (infra) that the Fourteenth Amendment's "privileges and
immunities" clause should be read to include everything in the first
eight Amendments. [FN181] He quoted a statement made on the Senate
floor by Senator Jacob Howard, one of the lead sponsors of the
Fourteenth Amendment:

Such is the character of the privileges and immunities spoken of
in the second section of the fourth article of the Constitution. . .To
these privileges and immunities, whatever they may be--for they are
not and cannot be fully defined in their entire extent and precise
nature--to these should be added the personal rights guaranteed and
secured by the first eight amendments of the Constitution; such as the
freedom of speech and of the press; the right of the people *146
peaceably to assemble and petition the Government for a redress of
grievances, a right appertaining to each and all the people; the right
to keep and bear arms; the right to be exempted from the quartering of
soldiers in a house without consent of the owner. . . . [FN182]

Justice Black's use in Duncan of the quote describing "the right to
keep and bear arms" as one of "the personal rights guaranteed and
secured by the first eight amendments" is fully consistent with his
writing on the bench and in legal scholarship that the Second
Amendment right to arms was one of the individual rights which the
Fourteenth Amendment (properly interpreted) makes into a limit on
state action. [FN183]

C. Malloy v. Hogan

This 1964 case used the Fourteenth Amendment's due process clause
to incorporate the Fifth Amendment's privilege against
self-incrimination. [FN184] Discussing the history of Fourteenth
Amendment jurisprudence, Justice Brennan listed various "Decisions
that particular guarantees were not safeguarded against state action
by the Privileges and Immunities Clause or other provision of the
Fourteenth Amendment." [FN185] Among these were "Presser v. Illinois,
116 U.S. 252, 265 (Second Amendment)," [FN186] along with various
other cases, almost of which had been, or would be, repudiated by
later decisions on incorporation. [FN187]
As discussed above, any discussion of the Second Amendment as
something which could be incorporated, even if no incorporation has
been performed, necessarily presumes that the Second Amendment is an
individual right. Justice Brennan's explication of Presser as a case
which rejects privileges and immunities incorporation is of some
significance as a modern interpretation of Presser, since, as we shall
discuss infra, the years after the1886 *147 Presser decision generated
a variety of opinions about whether Presser actually had rejected
incorporation.

D. Konigsberg v. State Bar of California

In Konigsberg, the Court majority upheld the state of California's
refusal to admit to the practice of law an applicant who refused
answer questions about his beliefs regarding communism. [FN188] In
dissent, Justice Black argued that First Amendment rights were
absolute and that the inquiry into the prospective lawyer's political
beliefs was therefore a violation of the First Amendment. [FN189]
Justice Harlan's majority opinion rejected Justice Black's
standard of constitutional absolutism. [FN190] The Harlan majority
opinion is one of the classic examples of the "balancing" methodology
of jurisprudence. [FN191] Justice Harlan pointed to libel laws as laws
which restrict speech, but which do not infringe the First Amendment.
[FN192] Similarly, he pointed to the Supreme Court's ruling in United
States v. Miller as an example of a law which restricted the absolute
exercise of rights, but which had been held not to be
unconstitutional. [FN193] Justice Harlan thereby treated the First and
Second Amendment as constitutionally identical: guaranteeing an
individual right, but not an absolute right.

n. 10. That view, which of course cannot be reconciled with the
law relating to libel, slander, misrepresentation, obscenity, perjury,
false advertising, solicitation of crime, complicity by encouragement,
conspiracy, and the like, is said to be compelled by the fact that the
commands of the First Amendment are stated in unqualified terms:
"Congress shall make no law . . . abridging the freedom speech, or of
the press; or the right of the people peaceably to assemble . . . ."
But as Mr. Justice Holmes once said: "[T] he provisions of the
Constitution are not mathematical formulas having their essence in
their form; they are organic living institutions transplanted from
English soil. Their significance is vital not formal; it is to be
gathered not simply by taking the words and a dictionary, but by
considering their origin and the line of their growth." Gompers v.
United States, 233 U.S. 604, 610. In this connection also compare the
equally unqualified command of the Second Amendment: "the right of the
people to keep and bear arms shall not be infringed." And see United
States v. Miller, 307 U.S. 174. [FN194]

The year before Justice Black's absolutist interpretative model
was rejected by the majority of the Court, Justice Black had detailed
the absolutist theory *148 in the first annual James Madison lecture
at the New York University School of Law. [FN195] Discussing each part
of the Bill of Rights, Justice Black explained how each guarantee was
unequivocal and absolute. For example, under the Sixth Amendment, a
defendant had a "definite and absolute" right to confront the
witnesses against him. [FN196] Regarding the Second Amendment, Justice
Black explained:
Amendment Two provides that:

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.
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. [FN197]

Did Justice Black mean that individuals have an absolute right to
possess militia-type arms, or did Justice Black mean that state
governments have an absolute right to arm the state militias as the
state governments see fit? His view is particularly important, because
he served on the Court that decided Miller, and he joined in the
Court's unanimous opinion.
Throughout the New York University speech, Justice Black referred
exclusively to individual rights, and never to state's rights. For
example, he began his speech by explaining "I prefer to think of our
Bill of Rights as including all provisions of the original
Constitution and Amendments that protect individual liberty. . ."
[FN198] If Justice Black thought that the Second Amendment protected
state power, rather than individual liberty, he would not have
included the Second Amendment in his litany of "absolute" guarantees
in the Bill of Rights. In the discussion of Adamson v. California,
infra, we will see "definite and absolute" proof that Justice Black
considered the Second Amendment an individual right.

E. Poe v. Ullman

In the 1961 case Poe v. Ullman, the Court considered whether
married persons had a right to use contraceptives. [FN199] The
majority said "no," but the second Justice Harlan, in a dissent (which
gained ascendancy a few years later in Griswold v. Connecticut), wrote
that the Fourteenth Amendment did guarantee a right of privacy. In
developing a theory of exactly what the Fourteenth Amendment due
process clause did protect, Justice Harlan wrote that the clause was
not limited exclusively to "the precise terms of the specific
guarantees *149 elsewhere provided in the Constitution," such as "the
freedom of speech, press, and religion; the right to keep and bear
arms; the freedom from unreasonable searches and seizures." [FN200]
It is impossible to read Justice Harlan's words as anything other
than a recognition that the Second Amendment protects the right of
individual Americans to possess firearms. The due process clause of
the Fourteenth Amendment, obviously, protects a right of individuals
against governments; it does not protect governments, nor is it some
kind of "collective" right. It is also notable that Justice Harlan
felt no need to defend or elaborate his position that the Second
Amendment guaranteed an individual right. Despite the Henigan claim
that the non-individual nature of the Second Amendment is "well-
settled," it was unremarkable to Justice Harlan that the Second
Amendment guaranteed the right of individual people to keep and bear
arms.
Like the Brandeis and Holmes dissents in the early free speech
cases, the Harlan dissent in Poe today seems to be a correct statement
of the law.

Some parts of the Harlan dissent, however, have not been quoted by
future courts. For example, even though later opinions have quoted
approvingly the Harlan language that the Fourteenth Amendment forbids
"all substantial arbitrary impositions," [FN201] those quotations omit
the list of cases that Justice Harlan cited for the proposition. That
list included Allgeyer v. Louisiana [FN202] and Nebbia v. New York,
[FN203] both of which used the Fourteenth Amendment in defense of
economic liberty. But Justice Harlan was certainly right that modern
use of the Fourteenth Amendment to protect non- enumerated rights has
its roots in the liberty of contract due process cases from the turn
of the century. Although it is not currently respectable to say so in
a Supreme Court opinion, cases such as Allgeyer and its progeny have
as much a logical claim to be part of the Fourteenth Amendment as do
Griswold [FN204] and its progeny; both lines of cases protect personal
freedom from "substantial arbitrary impositions."
But the fact that Allgeyer and Nebbia end up trimmed in later
quotations of Justice Harlan's words shows that the Justices who used
the quote later (Stevens, O'Connor, Powell, and Stewart) were not just
quoting without thought; they knew how to excise parts of Harlan's
language that they did not agree with, such as the references to
economic liberty. That economic liberty was excised, while the Second
Amendment stayed in, may, therefore, be plausibly considered as the
writer's decision.
*150 Also unquoted by later Courts has been Justice Harlan's
statement, "Again and again this Court has resisted the notion that
the Fourteenth Amendment is no more than a shorthand reference to what
is explicitly set out elsewhere in the Bill of Rights." [FN205] In
support of this proposition, he cited, inter alia, Presser v.
Illinois, a nineteenth century case which will be discussed infra.
Interestingly, Justice Douglas wrote his own dissent, in which he
stated that the Fourteenth Amendment must protect "all" the Bill of
Rights. [FN206] This implies that the Second Amendment is an
individual right, if it can be protected by the Fourteenth Amendment.
But Justice Douglas later rejected this view, in his Adams v. Williams
dissent. [FN207]

F. Knapp v. Schweitzer

Knapp involved the applicability of the Fifth Amendment's
self-incrimination clause to the states. [FN208] Justice Frankfurter's
majority opinion refused to enforce the clause against the states. In
support of his position, the Justice reeled off a list of nineteenth
century cases, including Cruikshank (discussed infra) which he cited
for the proposition that it was well-settled almost all of the
individual rights guarantees in the Bill of Rights were not applicable
to the states:

n. 5. By 1900 the applicability of the Bill of Rights to the
States had been rejected in cases involving claims based on virtually
every provision in the first eight Articles of Amendment. See, e. g.,
Article I: Permoli v. Municipality No. 1, 3 How. 589, 609 (free
exercise of religion); United States v. Cruikshank, 92 U.S. 542, 552
(right to assemble and petition the Government); Article II: United
States v. Cruikshank, supra, at 553 (right to keep and bear arms);
Article IV: Smith v. Maryland, 18 How. 71, 76 (no warrant except on
probable cause); Spies v. Illinois, 123 U.S. 131, 166 (security
against unreasonable searches and seizures); Article V: Barron v.
Baltimore, note 2, supra, at 247 (taking without just compensation);
Fox v. Ohio, 5 How. 410, 434 (former jeopardy); Twitchell v.
Pennsylvania, 7 Wall. 321, 325-327 (deprivation of life without due
process of law); Spies v. Illinois, supra, at 166 (compulsory
self-*151 incrimination); Eilenbecker v. Plymouth County, 134 U.S. 31,
34-35 (presentment or indictment by grand jury); Article VI: Twitchell
v. Pennsylvania, supra, at 325-327 (right to be informed of nature and
cause of accusation); Spies v. Illinois, supra, at 166 (speedy and
public trial by impartial jury); In re Sawyer, 124 U.S. 200, 219
(compulsory process); Eilenbecker v. Plymouth County, supra, at 34-35
(confrontation of witnesses); Article VII: Livingston's Lessee v.
Moore, 7 Pet. 469, 551-552 (right of jury trial in civil cases);
Justices v. Murray, 9 Wall. 274, 278 (re-examination of facts tried by
jury); Article VIII: Pervear v. Massachusetts, 5 Wall. 475, 479- 480
(excessive fines, cruel and unusual punishments). [FN209]

Here again, the Court majority treated the Second Amendment right to
arms as simply one of the many individual rights guarantees contained
in the Bill of Rights.

G. Johnson v. Eisentrager

After the surrender of Germany during World War II, some German
soldiers in China aided the Japanese army, in the months that Japan
continued to fight alone. [FN210] The American army captured them, and
tried them by court-martial in China as war criminals. [FN211] The
Germans argued that the trial violated their Fifth Amendment rights,
and pointed out that the Fifth Amendment is not by its terms limited
to American citizens. [FN212]
Justice Jackson's majority opinion held that Germans had no Fifth
Amendment rights. [FN213] He pointed out that if Germans could invoke
the Fifth Amendment, they could invoke the rest of the Bill of Rights.
[FN214] This would lead to the absurd result of American soldiers, in
obedience to the Second Amendment, being forbidden to disarm the
enemy:
If the Fifth Amendment confers its rights on all the world except
Americans engaged in defending it, [FN215] the same must be true of
the companion civil-rights Amendments, for none of them is limited by
its express terms, territorially or as to persons. Such a construction
would mean that during military occupation irreconcilable enemy
elements, guerrilla fighters, and "were-wolves" could require the
American Judiciary to assure them freedoms of speech, press, and
assembly as in the First Amendment, right to bear arms as in the
Second, security against "unreasonable" searches and seizures as in
the *152 Fourth, as well as rights to jury trial as in the Fifth and
Sixth Amendments. [FN216] The "irreconcilable enemy elements,
guerrilla fighters, and 'were-wolves" ' in Justice Jackson's
hypothetical are obviously not American state governments. Instead
they are individuals and as individuals would have Second Amendment
rights, if the Second Amendment were to apply to non-Americans.
[FN217] Interestingly, Justice Jackson's reasoning echoed an argument
made in Ex Parte Milligan by the Attorney General: the Fifth Amendment
must contain implicit exceptions, which allow trial of civilians under
martial law; the whole Bill of Rights contains implicit exceptions,
for without such exceptions, it would be a violation of the Second
Amendment to disarm rebels, and the former slave states' forbidding
the slaves to own guns would likewise have been unconstitutional.
[FN218]
*155

H. Adamson v. California

In the Adamson case, the defendant was convicted after a trial in
a California state court; California law allowed the judge to instruct
the jury that the jury could draw adverse inferences from a
defendant's failure to testify. [FN219] This jury instruction was
plainly inconsistent with established Fifth Amendment doctrine;
[FN220] but did the Fifth Amendment apply in state courts, or only in
federal courts?
The Adamson majority held that the Fifth Amendment's protection
against compelled self-incrimination was not made enforceable in state
courts by the Fourteenth Amendment's command that states not deprive a
person of life, liberty, or property without "due process of law."
[FN221]
In dissent, Justice Black (joined by Justice Douglas) argued that
the Fourteenth Amendment made all of the Bill of Rights enforceable
against the states, via the Amendment's mandate: "No state shall make
or enforce any law which shall abridge the privileges or immunities of
citizens of the United States." [FN222] Listing a series of 19th
century cases in which the Supreme Court had refused to make certain
individual rights from the Bill of Rights enforceable against the
states (including Presser, involving the right to keep and bear arms),
Justice Black argued that the Court's prior cases had not been so
explicit as to foreclose the current Court from considering the issue:

Later, but prior to the Twining case, this Court decided that the
following were not "privileges or immunities" of national citizenship,
so as to make them immune against state invasion: the Eighth
Amendment's prohibition against cruel and unusual punishment, In re
Kemmler, 136 U.S. 436; the Seventh Amendment's guarantee of a jury
trial in civil cases, Walker v. Sauvinet, 92 U.S. 90; the Second
Amendment's 'right of the people to keep and bear arms. . .,' Presser
v. Illinois, 116 U.S. 252, 584; the Fifth and Sixth Amendments'
requirements for indictment in capital or other infamous crimes, and
for trial by jury in criminal prosecutions, Maxwell v. Dow, 176 U.S.
581. While it can be argued that these cases implied that no one of
the provisions of the Bill of Rights was made applicable to the states
as attributes of national citizenship, no one of them expressly so
decided. In fact, the Court in Maxwell v. Dow, supra, 176 U.S. at
pages 597, 598, 20 S.Ct. at page 455, concluded no more than that 'the
privileges and immunities of citizens of the United States do not
necessarily include all the rights protected by the first eight
amendments to *156 the Federal Constitution against the powers of the
Federal government.' Cf. Palko v. Connecticut, 302 U.S. 319, 329, 153.
[FN223] Thus, Justice Black put the Second Amendment in the same boat
as Amendments Five, Six, Seven, and Eight: individual rights which
prior Courts had declined to enforce against the states, but which the
present Court still had the choice to incorporate.

In a lengthy Appendix, Justice Black set forth the history of the
creation of the Fourteenth Amendment, quoting at length from
congressional proponents of the Amendment, who indicated that the
Amendment was intended to make all of the rights in the first eight
amendments of the Bill of Rights enforceable against the states.
[FN224] This view, held by Justice Black and many of the backers of
the Fourteenth Amendment, is of course inconsistent with the idea that
the Second Amendment guarantees only a right of state governments. The
point of the Fourteenth Amendment is to make individual rights
enforceable against state governments.
First, the Appendix set forth the background to the Fourteenth
Amendment. Congress had enacted the Civil Rights Bill in response to
problems in states such as Mississippi, where, Senator Trumball
(Chairman of the Senate Judiciary Committee) explained, there was a
statute to "prohibit any negro or mulatto from having firearms. . ."
[FN225] When the Civil Rights Bill went to the House, Rep. Raymond,
who opposed the Bill "conceded that it would guarantee to the negro
'the right of free passage. . .He has a defined status. . . .a right
to defend himself. . .to bear arms. . . .to testify in the Federal
courts." [FN226]
Then,

On May 23, 1866, Senator Howard introduced the proposed amendment
to the Senate in the absence of Senator Fessenden who was sick.
Senator Howard prefaced his remarks by stating:
"I. . .present to the Senate. . .the views and the motives [of the
Reconstruction Committee]. . . .One result of their investigation has
been the joint resolution for the amendment of the Constitution of the
United States now under consideration. . . .
"The first section of the amendment. . .submitted for the
consideration of the two Houses, relates to the privileges and
immunities of citizens of the several States, and to the rights and
privileges of all persons, whether citizens or others, under the laws
of the United States. . . .
. . .
*157 "Such is the character of the privileges and immunities
spoken of in the second section of the fourth article of the
Constitution. To these privileges and immunities, whatever they may
be--for they are not and cannot be fully defined in their entire
extent and precise nature--to these should be added the personal
rights guarantied and secured by the first eight amendments of the
Constitution; such as the freedom of speech and of the press; the
right of the people peaceably to assemble and petition the Government
for a redress of grievances, a right appertaining to each and all the
people; the right to keep and to bear arms; the right to be exempted
from the quartering of soldiers in a house without the consent of the
owner; the right to be exempt from unreasonable searches and seizures,
and from any search or seizure except by virtue of a warrant issued
upon a formal oath or affidavit; the right of an accused person to be
informed of the nature of the accusation against him, and his right to
be tried by an impartial jury of the vicinage; and also the right to
be secure against excessive bail and against cruel and unusual
punishments. [FN227]

Later in the Appendix, Justice Black quoted Rep. Dawes's statement
that by the Constitution the American citizen

"secured the free exercise of his religious belief, and freedom of
speech and of the press. Then again he had secured to him the right to
keep and bear arms in his defense. Then, after that, his home was
secured in time of peace from the presence of a soldier. . . ."
[FN228]
. . . .
"It is all these, Mr. Speaker, which are comprehended in the words
'American citizen,' and it is to protect and to secure him in these
rights, privileges, and immunities this bill is before the House. And
the question to be settled is, whether by the Constitution, in which
these provisions are inserted, there is also power to guard, protect,
and enforce these rights of the citizens; whether they are more,
indeed, than a mere declaration of rights, carrying with it no power
of enforcement. . . ." Cong. Globe, 42d Cong., 1st Sess. Part I (1871)
475, 476. [FN229]

Also dissenting, Justice Murphy wrote "that the specific guarantees of
the Bill of Rights should be carried over intact into the first
Section of the Fourteenth Amendment." [FN230] The Second Amendment
implications of his statement are the same as for Justice Black's
longer exposition, although Justice Murphy did not enumerate the
Second Amendment, or any other right.
Senator Howard, quoted by Justice Black, listed the individual
right to arms in its natural order among the other individual rights
listed in the Bill of Rights. *158 FN231] The Henigan/Bogus state's
right theory, however, requires us to believe that when Congress sent
the Bill of Rights to the states, Congress first listed four
individual rights (in the First Amendment), then created a state's
right (in the Second Amendment), and then reverted to a litany of
individual rights (Amendments Three through Eight). [FN232] Finally,
Congress explicitly guaranteed a state's right in the Tenth Amendment.
[FN233] While Congress used "the people" to refer to people in the
First, Fourth, and Ninth Amendments, Congress used "the people" to
mean "state governments" in the Second Amendment. [FN234] Finally,
even though Congress had used "the people" in the Second Amendment to
mean "the states," Congress in the Tenth Amendment explicitly
distinguished "the people" from "the states," reserving powers "to the
States respectively, or to the people." [FN235]
Which reading is more sensible: The Black/Howard/Dawes reading,
under which "the people" means the same thing throughout the Bill of
Rights, and which makes all of the first eight amendments into a
straightforward list of individual rights, or the Henigan/Bogus
theory, which requires that "the people" change meanings repeatedly,
and which inserts a state's right in the middle of a litany of
individual rights?

H. Hamilton v. Regents

This case has been almost entirely overlooked by Second Amendment
scholarship. [FN236] Hamilton's obscurity is especially surprising,
since it is the one Supreme Court case which actually uses the Second
Amendment in the way that we would expect the Amendment to be used if
it were a state's right: to bolster state authority over the militia.
Two University of California students, the sons of pacifist
ministers, sued to obtain an exemption from participation in the
University of California's mandatory military training program.
[FN237] The two students did not contest the state of California's
authority to force them to participate in state militia exercises, but
they argued, in part, that the university's training program was so
closely connected with the U.S. War Department as to not really be a
militia program. [FN238] A unanimous Court disagreed, and stated that
California's acceptance of federal assistance in militia training did
not transform the training *159 program into an arm of the standing
army. States had the authority to made their own judgments about
training:

So long as [the state's] action is within retained powers and not
inconsistent with any exertion of the authority of the national
government, and transgresses no right safeguarded to the citizen by
the Federal Constitution, the State is the sole judge of the means to
be employed and the amount of training to be exacted for the effective
accomplishment of these ends. Second Amendment. Houston v. Moore, 5
Wheat. 1, 16-17, Dunne v. People, (1879) 94 Ill. 120, 129. 1 Kent's
Commentaries 265, 389. Cf. Presser v. Illinois, 116 U.S. 252. [FN239]

Thus, the Court used the Second Amendment to support of a point
about a state government's power over its militia.
This usage was not consistent with a meaningful state's right
theory. A state's right Second Amendment, to have any legal content,
would have to give the state some exemption from the exercise of
federal powers. [FN240] But the Court wrote that the state's
discretion in militia training must be "not inconsistent with any
exertion of the authority of the national government." [FN241]
Another way to read Hamilton's Second Amendment citation would be
as a reminder of the expectation by all the Founders that states would
supervise the militia. This reminder would be consistent with the
state's rights theory and with the standard model.
The authorities cited along with "Second Amendment" by the
Hamilton Court do not support a reading of the Second Amendment as
guaranteeing a state's right, but instead support an individual right.
Houston v. Moore (to be discussed in more detail below), involved
the state of Pennsylvania's authority to punish a man for evading
service in the federal militia, which had been called to fight the war
of 1812. [FN242] The report of the attorneys' arguments, on both
sides, shows that the Second Amendment was not raised as an issue.
[FN243] The Houston pages which were cited by the Hamilton Court
contain the statement, spanning the two pages, that "[A]s state
militia, the power of the state governments to legislate on the same
subjects [organizing, arming, disciplining, training, and officering
the militia], having existed prior to the formation of the
constitution, and not having been prohibited by that instrument, it
remains with the states, subordinate nevertheless to the paramount law
of the general government, operating on the same subject." [FN244] In
other words, state militia powers were inherent in the *160 nature of
state sovereignty, and continue to exist except to the extent limited
by Congress under its Constitutional militia powers.
In Dunne v. People, the Illinois Supreme Court affirmed the
centrality of state power over the militia, citing the Tenth Amendment
and the Houston v. Moore precedent. [FN245] The Dunne court also
explained how a state's constitutional duty to operate a militia was
complemented by the right of the state's citizens to have arms:

"A well regulated militia being necessary to the security of a
free State," the States, by an amendment to the constitution, have
imposed a restriction that Congress shall not infringe the right of
the "people to keep and bear arms." The chief executive officer of the
State is given power by the constitution to call out the militia "to
execute the laws, suppress insurrection and repel invasion." [FN246]
This would be a mere barren grant of power unless the State had power
to organize its own militia for its own purposes. Unorganized, the
militia would be of no practical aid to the executive in maintaining
order and in protecting life and property within the limits of the
State. These are duties that devolve on the State, and unless these
rights are secured to the citizen, of what worth is the State
government? [FN247]

The cited pages of Kent's Commentaries discuss state versus federal
powers over the militia. Chancellor Kent uses Martin v. Mott [FN248]
to show that a President's decision that there is a need to call out
the militia is final. Houston v. Moore [FN249] (state authority to
prosecute a person for refusing a federal militia call) is used to
show that if the federal government neglects its constitutional duty
to organize, arm, and discipline the militia, the states have the
inherent authority to do so. The Second Amendment was not used by Kent
or by Kent's cited cases to support his propositions.
Presser v. Illinois will be discussed below; the case affirmed a
state's authority to make a gun control law (a ban on armed parades in
public) which contained an exemption for the state's organized
militia. [FN250]
Later in the opinion, the Hamilton Court quoted United States v.
Schwimmer, a 1929 decision which held that an immigrant pacifist's
refusal to bear arms in the army or in the Second Amendment's
well-regulated militia proved that the immigrant was not fit for
citizenship. [FN251] *161

IV. The Taft, Fuller, and Waite Courts

Between the end of Reconstruction and the New Deal, there were
eleven opinions (all but one a majority opinion) touching on the
Second Amendment. Most involved the scope of the "privileges and
immunities" which the Fourteenth Amendment protected from state
interference. Nine of the opinions (including the one dissent) treated
the Second Amendment as an individual right, while the tenth was
ambiguous, and the eleventh refused to address any of a plaintiff's
arguments (of which the Second Amendment was one) because of a lack of
injury and hence a lack of standing.

A. United States v. Schwimmer

A divided Supreme Court held that a female pacifist who wished to
become a United States citizen could be denied citizenship because of
her energetic advocacy of pacifism. [FN252] The Court majority found
the promotion of pacifism inconsistent with good citizenship because
it dissuaded people from performing their civic duties, including the
duty to bear arms in a well regulated militia. [FN253] Since it is
agreed by Standard Modelers and their critics alike that the federal
and state governments have the authority to compel citizens to perform
militia service, the Schwimmer opinion does not help resolve the
individual rights controversy:

That it is the duty of citizens by force of arms to defend our
government against all enemies whenever necessity arises is a
fundamental principle of the Constitution.
The common defense was one of the purposes for which the people
ordained and established the Constitution. It empowers Congress to
provide for such defense, to declare war, to raise and support armies,
to maintain a navy, to make rules for the government and regulation of
the land and naval forces, to provide for organizing, arming, and
disciplining the militia, and for calling it forth to execute the laws
of the Union, suppress insurrections and repel invasions; it makes the
President commander in chief of the army and navy and of the militia
of the several states when called into the service of the United
States; it declares that, 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 need not refer to the numerous
statutes that contemplate defense of the United States, its
Constitution and laws, by armed citizens. This court, in the Selective
Draft Law Cases, 245 U.S. 366, page 378, 38 S. Ct. 159, 161 (62 L. Ed.
349, L. R. A. 1918C, 361, Ann. Cas. 1918B, 856), speaking through
Chief Justice White, said that "the very conception of a just
government and its duty to the citizen includes the reciprocal
obligation of the citizen to render military service in case of need.
. . ."
*162 Whatever tends to lessen the willingness of citizens to
discharge their duty to bear arms in the country's defense detracts
from the strength and safety of the Government. . . .The influence of
conscientious objectors against the use of military force in defense
of the principles of our Government is apt to be more detrimental than
their mere refusal to bear arms. . .her objection to military service
rests on reasons other than mere inability because of her sex and age
personally to bear arms. [FN254]

Schwimmer illustrates two points about which the Standard Model
authors agree with Bogus and Henigan: first, the phrase "bear arms" in
the Second Amendment can have militia service connotations. The
Standard Modelers (and Justice Ginsburg) [FN255], however, disagree
with Bogus and Henigan's claim that "bear arms" always has a
militia/military meaning, and never any other. Second, Schwimmer
illustrates that bearing arms can be a duty of citizenship which the
government can impose on the citizen. While opponents of the standard
model use this fact to argue that the Second Amendment is about a
duty, and not about an individual right, [FN256] the Standard Model
professors respond by pointing to jury service, to show that an
individual constitutional right (the right to be eligible for jury
service [FN257]) can also be a duty.

B. Stearns v. Wood

This case came to the Court after World War I had broken out in
Europe. [FN258] The U.S. War Department had sent "Circular 8" to the
various National Guards, putting restrictions on promotion. Plaintiff
Stearns, a Major in the Ohio National Guard, was thereby deprived of
any opportunity to win promotion above the rank of Lieutenant Colonel.
[FN259] Stearns argued that Circular 8 violated the Preamble to the
Constitution, Article One's specification of Congressional powers over
the militia, Article One's grant of army powers to the Congress,
Article Two's making the President the Commander in Chief of the
militia when called into federal service, the Second Amendment, and
the Tenth Amendment. [FN260]
Writing for a unanimous Court, Justice McReynolds contemptuously
dismissed Stearns' claim without reaching the merits. [FN261] Since
Stearns' present rank *163 of Major was undisturbed, there was no
genuine controversy for the Court to consider, and the Court would not
render advisory opinions. [FN262]
Even though the Court never reached the merits of the Second
Amendment argument, it is possible to draw some inferences simply from
the fact that the Second Amendment argument was made in the case.
First of all, Major Stearns' argument shows that using the Second
Amendment to criticize federal control of the National Guard was not
an absurd argument--or at least no more absurd than using the Preamble
to the Constitution for the same purpose. And after the 1905 Kansas
Supreme Court case Salina v. Blaksley ruled that the Kansas
constitution's right to arms (and, by analogy, the U.S. Second
Amendment) protected the state government, and not the citizen of
Kansas, [FN263] Stearns' attorney's argument did have some foundation
in case law.

C. Twining v. New Jersey

In Twining, the Supreme Court (with the first Harlan in dissent)
refused to make the Fifth Amendment self-incrimination guarantee in
the Bill of Rights applicable to state trials, via the Fourteenth
Amendment. [FN264] In support of this result, the majority listed
other individual rights which had not been made enforceable against
the states, under the Privileges and Immunities clause:
The right to trial by jury in civil cases, guaranteed by the
Seventh Amendment (Walker v. Sauvinet, 92 U.S. 90), and the right to
bear arms guaranteed by the Second Amendment (Presser v. Illinois, 116
U.S. 252) have been distinctly held not to be privileges and
immunities of citizens of the United States guaranteed by the
Fourteenth Amendment against abridgement by the States, and in effect
the same decision was made in respect of the guarantee against
prosecution, except by indictment of a grand jury, contained in the
Fifth Amendment (Hurtado v. California, 110 U.S. 516), and in respect
to the right to be confronted with witnesses, contained in the Sixth
Amendment. West v. Louisiana, 194 U.S. 258. In Maxwell v. Dow, supra.
. .it was held that indictment, made indispensable by the Fifth
Amendment, and the trial by jury guaranteed by the Sixth Amendment,
were not privileges and immunities of citizens of the United States.
[FN265]
The Second Amendment here appears--along with Seventh Amendment
civil juries, Sixth Amendment confrontation, and Fifth Amendment grand
juries--as a right of individuals, but a right only enforceable
against the federal government. As we shall see below, the exact
meaning of the 1886 Presser case was subject to dispute; some argued
that the case simply upheld a particular gun control as not being in
violation of the Second Amendment,*164 while others argued that
Presser held that the Second Amendment was not one of the "Privileges
and Immunities" which the Fourteenth Amendment protects against state
action. Twining clearly takes the latter view.

D. Maxwell v. Dow

Maxwell was the majority's decision (again, over Harlan's dissent)
not to make the right to a jury in a criminal case into one of the
Privileges or Immunities protected by the Fourteenth Amendment.
[FN266] Regarding the Second Amendment and Presser, the Court wrote:
In Presser v. Illinois, 116 U.S. 252, it was held that the Second
Amendment to the Constitution, in regard to the right of the people to
bear arms, is a limitation only on the power of the Congress and the
National Government, and not of the States. It was therein said,
however, that as all citizens capable of bearing arms constitute the
reserved military force of the National Government, 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, and disable the people from performing their duty
to the General Government. [FN267]
The Maxwell description of Presser was somewhat narrower than
Twining's description. Maxwell used Presser only to show that the
Second Amendment does not in itself apply to the states; Twining used
Presser to show that the Fourteenth Amendment privileges and
immunities clause did not make the Second Amendment indirectly
applicable to the states.

E. Trono v. United States, and Kepner v. United States

After the United States won the Spanish-American War, the
Philippines were ceded to the United States. American control was
successfully imposed only after several years of hard warfare
suppressed Filipinos fighting for independence. [FN268] Congress in
1902 enacted legislation imposing most, but not all of the Bill of
Rights on the Territorial Government of the Philippines. The 1905
Trono [FN269] case and the 1904 Kepner [FN270] case both grew out of
criminal prosecutions in the Philippines in which the defendant
claimed his rights had been violated.
In Trono, at the beginning of the Justice Peckham's majority
opinion, the Congressional act imposing the Bill of Rights was
summarized:
*165

The whole language [of the Act] is substantially taken from the
Bill of Rights set forth in the amendments to the Constitution of the
United States, omitting the provisions in regard to the right of trial
by jury and the right of the people to bear arms, and containing the
prohibition of the 13th Amendment, and also prohibiting the passage of
bills of attainder and ex post facto laws. [FN271]

As with other cases, the "right of the people" to arms is listed in
a litany of other rights which are universally acknowledged to be
individual rights, not state's rights. [FN272]
It could be argued that the Second Amendment was omitted from the
Congressional Act because the Amendment is a state's right, and there
was no point in putting a state's right item into laws governing a
territory. Indeed, the omission of the Tenth Amendment from the
Congressional 1902 Act is perfectly explicable on the grounds that the
Tenth Amendment protects federalism, but does not control a
territorial or state government's dealings with its citizens. [FN273]
And thus, when the Supreme Court listed the individual rights
which were not included in the 1902 Act, the Court did not note the
omission of the Tenth Amendment; there was no possibility that
Congress could have included the Tenth Amendment, since it would have
no application to the territorial government's actions against the
Filipino people. [FN274]
In contrast, the Court did note the omission of "the right of
trial by jury and the right of the people to bear arms." [FN275] The
logical implication, then, is that jury trial and the right to arms
(unlike the Tenth Amendment) are individual rights which Congress
could have required the Territorial Government to respect in the
Philippines. [FN276]
The 1904 United States v. Kepner case involved a similar issue.
[FN277] There, the Court described the 1902 Act in more detail. The
description of items omitted from the Act was nearly identical to the
Trono language. [FN278]
*166

F. Robertson v. Baldwin

In 1897, the Court refused to apply the Thirteenth Amendment to
merchant seamen who had jumped ship, been caught, and been impressed
back into maritime service without due process. [FN279] The Court
explained that Thirteenth Amendment's ban on involuntary servitude,
even though absolute on its face, contained various implicit
exceptions. [FN280] In support of the finding of an exception to the
Thirteenth Amendment, the Court argued that the Bill of Rights also
contained unstated exceptions:

The law is perfectly well settled that the first ten Amendments to
the constitution, commonly known as the Bill of Rights, were not
intended to lay down any novel principles of government, but simply to
embody certain guarantees and immunities which we had inherited from
our English ancestors, and which from time immemorial had been subject
to certain well-recognized exceptions arising from the necessities of
the case. In incorporating these principles into the fundamental law,
there was no intention of disregarding the exceptions, which continued
to be recognized as if they had been formally expressed. 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 law prohibiting the carrying of concealed weapons; the provision
that no person shall be twice put in jeopardy (art. 5) does not
prevent a second trial, if upon the first trial the jury failed to
agree, or the verdict was set aside upon the defendant's motion. . . .
[FN281] Likewise, the self-incrimination clause did not bar a person
from being compelled to testify against himself if he were immune from
prosecution; and the confrontation clause did not bar the admission of
dying declarations. [FN282]

In 1897, state laws which barred individuals from carrying concealed
weapons were common, and usually upheld by state supreme courts
[FN283]; the laws did not forbid state militias from carrying
concealed weapons. The prohibitions on concealed carry are the
exceptions that prove the rule. Only if the Second Amendment is an
individual right does the Court's invocation of a concealed carry
exception make any sense.
*167

G. Brown v. Walker

When a witness before an Interstate Commerce Commission
investigation invoked the Fifth Amendment to refuse to answer
questions under oath, the majority of the Supreme Court ruled against
his invocation of the privilege against self- incrimination. [FN284]
The majority pointed out that a Congressional statute protected the
witness from any criminal prosecution growing out of the testimony.
[FN285]
Dissenting, Justice Stephen Field (perhaps the strongest civil
liberties advocate on the Court during the nineteenth century)
contended that the "infamy and disgrace" which might result from the
testimony was justification enough not to testify, even if there could
be no criminal prosecution. [FN286] Justice Field's opinion carefully
analyzed English and early American precedent, reflecting Field's
vivid appreciation of the long Anglo-American struggle for liberty
against arbitrary government. [FN287] Law and order was less important
than Constitutional law, he continued, for the claim that "the proof
of offenses like those prescribed by the interstate commerce act will
be difficult and probably impossible, ought not to have a feather's
weight against the abuses which would follow necessarily the
enforcement of incriminating testimony." [FN288] All Constitutional
rights ought to be liberally construed, for:

As said by counsel for the appellant: "The freedom of thought, of
speech, and of the press; the right to bear arms; exemption from
military dictation; security of the person and of the home; the right
to speedy and public trial by jury; protection against oppressive bail
and cruel punishment,--are, together with exemption from
self-crimination, the essential and inseparable features of English
liberty. Each one of these features had been involved in the struggle
above referred to in England within the century and a half immediately
preceding the adoption of the constitution, and the contests were
fresh in the memories and traditions of the people at that time."
[FN289]

This is just the opposite of Dennis Henigan's assertion that the
Second Amendment is written so as to be less fundamental than the
first. {FN290] Justice Field's paragraph is not a list of state
powers, it is a list of personal rights won at *168 great cost--rights
which may never be trumped by the legislature's perceived needs of the
moment.

H. Miller v. Texas

Franklin P. Miller was a white man in Dallas who fell in love with
a woman whom local newspapers would later call "a greasy negress." In
response to a rumor that Miller was carrying a handgun without a
license, a gang of Dallas police officers, after some hard drinking at
a local tavern, invaded Miller's store with guns drawn. A shoot-out
ensued, and the evidence was conflicting as to who fired first, and
whether Miller realized that the invaders were police officers. But
Miller was stone cold sober, and the police gang was not; thus, Miller
killed one of the intruders during the shoot-out, although the gang's
superior numbers resulted in Miller's capture.
During Miller's murder trial, the prosecutor asserted to the jury
that Miller had been carrying a gun illegally. Upon conviction of
murdering the police officer, Miller appealed to various courts, and
lost every time.
Appealing to the Supreme Court in 1894, Miller alleged violations of
his Second Amendment, Fourth Amendment, Fifth Amendment, and
Fourteenth Amendment rights. [FN291] Regarding the Second Amendment,
Miller claimed that it negated the Texas statute against concealed
carrying of a weapon. [FN292]
A unanimous Court rejected Miller's contentions: A "state law
forbidding the carrying of dangerous weapons on the person. . . does
not abridge the privileges or immunities of citizens of the United
States." [FN293] This statement about concealed weapons laws was
consistent with what the Court would say about such laws three years
later, in the Robertson case. [FN294]
Moreover, the Second Amendment, like the rest of the Bill of
Rights, only operated directly on the federal government, and not on
the states: "the restrictions of these amendments [Second, Fourth, and
Fifth] operate only upon the Federal power." [FN295]
But did the Fourteenth Amendment makes the Second, Fourth, and
Fifth Amendments applicable to the states? Here, the Miller Court was
agnostic: "If the Fourteenth Amendment limited the power of the States
as to such rights, as pertaining to the citizens of the United States,
we think it was fatal to this claim that it was not set up in the
trial court." [FN296]
Just eight years before, in Presser the Court had said that the
Second Amendment does not apply directly to the states; Miller
reaffirmed this part of *169 Presser. Another part of Presser had
implied that the right to arms was not one of the "privileges or
immunities" of American citizenship, although the Presser Court did
not explicitly mention the Fourteenth Amendment.
In Miller v. Texas, the Court suggested that Miller might have had
a Fourteenth Amendment argument, if he had raised the issue properly
at trial. [FN297] If Presser foreclosed any possibility that Second
Amendment rights could be enforced via the Fourteenth Amendment, then
the Miller Court's statement would make no sense. Was Miller an early
hint that the Fourteenth Amendment's due process clause might protect
substantive elements of the Bill of Rights? Three years later, the
Court used the Fourteenth Amendment's due process clause for the first
time to apply part of the Bill of Rights against a state. [FN298]
A decade after Miller, Twining in 1908 did claim that Presser
stood for the Second Amendment not being a Fourteenth Amendment
privilege or immunity. But between Presser in 1886 and Twining in
1908, other readings were permissible. Not only does Miller in 1894
appear to invite such readings, but so does the 1887 case Spies v.
Illinois, which involved the murder prosecutions arising out of the
Haymarket Riot. [FN299] John Randolph Tucker represented the
defendants. Tucker, an eminent Congressman, author of an important
treatise on constitutional law, a future President of the American Bar
Association, and a leading law professor at Washington and Lee
[FN300]-- argued that the whole Bill of Rights was enforceable against
the states, including the right to arms. [FN301]
*170 Tucker argued that all "these ten Amendments" were
"privileges and immunities of citizens of the United States, which the
Fourteenth Amendment forbids every State to abridge," and cited
Cruikshank in support. [FN302] As for Presser, that case "did not
decide that the right to keep and bear arms was not a privilege of a
citizen of the United States which a State might therefore abridge,
but that a State could under its police power forbid organizations of
armed men, dangerous to the public peace." [FN303]
Chief Justice Waite's majority opinion in Spies cited Cruikshank
and Presser (along with many other cases) only for the proposition
that the first ten Amendments do not apply directly to the states.
FN304] (An 1890 opinion, Eilenbecker, again cited Cruikshank and
Presser as holding that the Bill of Rights does not apply directly to
the states. [FN305]) The Spies' defendants' substantive claims
(relating to the criminal procedure and jury portions of the Bill of
Rights) were rejected as either incorrect (e.g., the jury was not
biased) or as not properly raised at trial, and thus not appropriate
for appeal. [FN306]
Tucker's reading of Presser is not the only possible one, but
Tucker--one of the most distinguished lawyers of his time--was far too
competent to make an argument in a capital case before the Supreme
Court that was contrary to Supreme Court precedent from only a year
before. It may be permissible to read Presser the same way that John
Randolph Tucker did (as upholding a particular gun control law), or as
Spies, Maxwell, and Eilenbecker did (as stating*171 that the Second
Amendment does not by its own power apply to the states), or as
Twining and Malloy v. Hogan did (as rejecting incorporation of the
Second Amendment via the Privileges and Immunities clause). We will
get to Presser soon, so that the reader can supply her own
interpretations.[FN307]
Whatever Miller v. Texas implies about the Fourteenth Amendment,
its Second Amendment lessons are easy. First, the Amendment does not
directly limit the states. Second, the Amendment protects an
individual right. Miller was a private citizen, and never claimed any
right as a member of the Texas Militia. But according to the Court,
Miller's problem was the Second Amendment was raised against the wrong
government (Texas, rather than the federal government), and at the
wrong time (on appeal, rather than at trial). If the Henigan/Bogus
state's right theory were correct, then the Court should have rejected
Miller's Second Amendment claim because Miller was an individual
rather than the government of Texas. Instead, the Court treated the
Second Amendment exactly like the Fourth and the Fifth, which were
also at issue: all three amendments protected individual rights, but
only against the federal government; while the Fourteenth Amendment
might, arguably, make these rights enforceable against the states,
Miller's failure to raise the issue at trial precluded further
inquiry.

I. Logan v. United States

This case arose out of a prosecution under the Enforcement Act, a
Congressional statute outlawing private conspiracies against the
exercise of civil rights. [FN308] The Enforcement Act was also as
issue in Cruikshank, infra. In Logan, a mob had kidnapped a group of
prisoners who were being held in the custody of federal law
enforcement. [FN309] The issue before the Court was whether the
prisoners, by action of the mob, had been deprived of any of their
federal civil rights.
Logan affirmed Cruikshank's position that the First and Second
Amendments recognize preexisting fundamental human rights, rather than
creating new rights. The First Amendment right of assembly and the
Second Amendment*172 right to arms are construed in pari materia,
suggesting that they both protect individual rights:

In U.S. v. Cruikshank, 92 U.S. 542, as the same term, in which
also the opinion was delivered by the chief justice, the indictment
was on section 6 of the enforcement act of 1870, (re-enacted in Rev.
St. 5508, under which the present conviction was had,) and the points
adjudged on the construction of the constitution and the extent of the
powers of congress were as follows:
(1) It was held that the first amendment of the constitution, by
which it was ordained that congress should make no law abridging the
right of the people peaceably to assemble and to petition the
government for redress of grievances, did not grant to the people the
right peaceably to assemble for lawful purposes, but recognized that
right as already existing, and did not guaranty its continuance except
as against acts of congress; and therefore the general right was not a
right secured by the constitution of the United States. But the court
added: "The right of the people peaceably to assemble for the purpose
of petitioning congress for a redress of grievances, or for anything
else connected with the powers or the duties of the national
government, is an attribute of national citizenship, and, as such,
under the protection of, and guarantied by, the United States. The
very idea of a government, republican in form, implies a right on the
part of its citizens to meet peaceably for consultation in respect to
public affairs, and to petition for a redress of grievances. If it had
been alleged in these counts that the object of the defendants was to
prevent a meeting for such a purpose, the cause would have been within
the statute, and within the scope of the sovereignty of the United
States." 92 U.S. 552, 553.
(2) It was held that the second amendment of the constitution,
declaring that "the right of the people to keep and bear arms shall
not be infringed," was equally limited in its scope. 92 U.S. 553.
(3) It was held that a conspiracy of individuals to injure,
oppress, and intimidate citizens of the United States, with intent to
deprive them of life and liberty without due process of law, did not
come within the statute, nor under the power of congress, because the
rights of life and liberty were not granted by the constitution, but
were natural and inalienable rights of man; and that the fourteenth
amendment of the constitution, declaring that no state shall deprive
any person of life, liberty, or property, without due process of law,
added nothing to the rights of one citizen as against another, but
simply furnished an additional guaranty against any encroachment by
the states upon the fundamental rights which belong to every citizen
as a member of society. It was of these fundamental rights of life and
liberty, not created by or dependent on the constitution, that the
court said: "Sovereignty, for this purpose, rests alone with the
states. It is no more the duty or within the power of the United
States to punish for a conspiracy to falsely imprison or murder within
a state than it would be to punish for false imprisonment or murder
itself." 92 U.S. 553, 554.
*173 4th. It was held that the provision of the Fourteenth
Amendment forbidding any State to deny to any person within its
jurisdiction the equal protection of the laws, gave no greater power
to Congress. 92 U.S. 555.
5th. It was held, in accordance with United States v. Reese, above
cited, that the counts for conspiracy to prevent and hinder citizens
of the African race in the free exercise and enjoyment of the right to
vote at state elections, or to injure and oppress them for having
voted at such election, not alleging that this was on account of their
race, or color, or previous condition of servitude, could not be
maintained; that court stating: "The right to vote in the States comes
from the States; but the right of exemption from prohibited
discrimination comes from the United States. The first has not been
granted or secured by the Constitution of the United States, but the
last has been." 92 U.S. 556
Nothing else was decided in United States v. Cruikshank, except
questions of the technical sufficiency of the indictment, having no
bearing upon the larger questions. [FN310]

Thus, to the Logan Court, the First Amendment right to assemble
and the Second Amendment right to arms are identical: both are
individual rights; both pre-exist the Constitution; both are protected
by the Constitution, rather than created by the Constitution; both
rights are protected only against government interference, not against
the interference of private conspirators.

J. Presser v. Illinois

In the late 19th century, many state governments violently
suppressed peaceful attempts by workingmen to exercise their economic
and collective bargaining rights. In response to the violent state
action, some workers created self-defense organizations. In response
to the self-defense organizations, some state governments, such as
Illinois's, enacted laws against armed public parades. [FN311]
Defying the Illinois Statue, a self-defense organization composed
of German working-class immigrants defied the law, and held a parade
in which one of the leaders carried an unloaded rifle. At trial, the
leader--Herman Presser--argued that the Illinois law violated the
Second Amendment.
The Supreme Court ruled against him unanimously. First, the Court
held that the Illinois ban on armed parades "does not infringe the
right of the people to keep and bear arms." [FN312] This holding was
consistent with traditional common *174 law boundaries on the right to
arms, which prohibited terrifyingly large assemblies of armed men.
[FN313]
Further, the Second Amendment by its own force "is a limitation only
upon the power of Congress and the National Government, and not upon
that of the States." [FN314]
Did some other part of the Constitution make the Second Amendment
enforceable against the states? The Court added that the Illinois law
did not appear to interfere with any of the "privileges or immunities"
of citizens of the United States. [FN315] Although the Court never
actually used the words "Fourteenth Amendment," it is reasonable to
read Presser as holding that the Fourteenth Amendment's Privileges and
Immunities clause does not restrict state interference with keeping
and bearing arms. This reading is consistent with all the other
Fourteenth Amendment cases from the Supreme Court in the 1870s and
1880s, which consistently reject the proposition that any part of the
Bill of Rights is among the "Privileges and Immunities" protected by
the Fourteenth Amendment. [FN316]
As to whether the Second Amendment might be protected by another
part of the Fourteenth Amendment--the clause forbidding states to
deprive a person of life, liberty, or property without due process of
law [FN317]--the Court had nothing to say. The theory that the Due
Process clause of the Fourteenth Amendment might protect substantive
constitutional rights had not yet been invented. Most of what the
Waite Court had to say about Bill of Rights incorporation has long
since been repudiated (although not always formally overruled) by
subsequent courts, via the Due Process clause.
It is true that some modern lower courts cling to Presser and
claim that Presser prevents them from addressing a litigant's claim
that a state statute violates the Second Amendment. [FN318] It is hard
to take such judicial arguments seriously. An 1886 decision about
Privileges and Immunities is hardly binding precedent for 1990s Due
Process. The dicta from the modern Supreme Court about the Second
Amendment as a possible Fourteenth Amendment liberty interest is
incompatible with the claim that Presser forecloses any possible
theory of incorporating the Second Amendment. At most, Presser rejects
Privileges and Immunities incorporation, but the case cannot be read
to address a legal theory (Due Process incorporation) which did not
exist at the time the case was decided.
*175 Interestingly, Presser does offer another theory on which the
United States Constitution might restrict state anti-gun laws. Article
I, section 8, clauses 15 and 16 give Congress various powers over the
militia. [FN319] States may not interfere with these Congressional
militia powers; so in dicta, the Presser Court stated that the states
could not disarm the public so as to deprive the federal government of
its militia:
It is undoubtedly true that all citizens capable of bearing arms
constitute the reserved military force or reserve militia of the
United States, and, in view of this prerogative of the general
government. . .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. But, as already stated, we think it clear that the
sections under consideration do not have this effect. [FN320] So
according to Presser, the constitutional militia includes "all
citizens capable of bearing arms." [FN321] But this statement is not
directly about the Second Amendment; it is about Congressional powers
to use the militia under Article I, section 8, clauses 15 and 16.

V. The Chase, Taney, and Marshall Courts

The majority of the Chase Court was just as hostile to a broad
reading of the Fourteenth Amendment as was the Waite Court;
unsurprisingly, the Chase Court rejected the idea that Congress could
use the Fourteenth Amendment to legislate against private interference
with First or Second Amendment rights. At the same time, the Chase
Court described the First Amendment assembly right and the Second
Amendment arms rights as fundamental human rights which pre-existed
the Constitution.
*176

One of the most notable cases of the nineteenth century, Dred
Scott, used the Second Amendment to support arguments about other
subjects; the arguments recognized the Second Amendment right as an
individual one.
And the very first Supreme Court opinion to mention the Second
Amendment-- Justice Story's dissent in Houston v. Moore--is so obscure
that even most Second Amendment specialists are unfamiliar with it. It
is analogous to the Hamilton case, in that it uses the Second
Amendment to underscore state militia powers.

A. United States v. Cruikshank

An important part of Congress's work during Reconstruction was the
Enforcement Acts, which criminalized private conspiracies to violate
civil rights. [FN322] Among the civil rights violations which
especially concerned Congress was the disarmament of Freedmen by the
Ku Klux Klan and similar gangs. [FN323]
After a rioting band of whites burned down a Louisiana courthouse
which was occupied by group of armed blacks (following the disputed
1872 elections), the whites and their leader, Klansman William
Cruikshank, were prosecuted under the Enforcement Acts. Cruikshank was
convicted of conspiring to deprive the blacks of the rights they had
been granted by the Constitution, including the right peaceably to
assemble and the right to bear arms. [FN324]
In United States v. Cruikshank, the Supreme Court held the
Enforcement Acts unconstitutional. The Fourteenth Amendment did give
Congress the power to prevent interference with rights granted by the
Constitution, said the Court. But the right to assemble and the right
to arms were not rights granted or created by the Constitution,
because they were fundamental human rights that pre-existed the
Constitution:

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 "derives its
source," to use the language of Chief Justice Marshall, in Gibbons v.
Ogden, 9 Wheat. 211, "from those laws whose authority is acknowledged
*177 by civilized man throughout the world." 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. [FN325]
A few pages later, the Court made the same point about the
right to arms as a fundamental human right:
The right. . . of bearing arms for a lawful purpose. . . is
not a right granted by the Constitution. Neither is it in any manner
dependent on that instrument for its existence. The second amendment
declares that it shall not be infringed; but this. . . means no more
than it shall not be infringed by Congress. . . leaving the people to
look for their protection against any violation by their fellow
citizens of the rights it recognizes, to what is called . . .the
"powers which relate to merely municipal legislation. . . ." [FN326]

According to Cruikshank, the individual's right to arms is
protected by the Second Amendment, but not created by it, because the
right derives from natural law. The Court's statement that the
freedmen must "look for their protection against any violation by
their fellow citizens of the rights" that the Second Amendment
recognizes is comprehensible only under the individual rights view. If
individuals have a right to own a gun, then individuals can ask local
governments to protect them against "fellow citizens" who attempt to
disarm them. In contrast, if the Second Amendment right belongs to the
state governments as protection against federal interference, then
mere "fellow citizens" could not infringe that right by disarming mere
individuals.
Cruikshank has occasionally been cited (without explanation) for
the proposition that the Second Amendment right belongs only to the
state militias, although Cruikshank has nothing to say about states or
militias. [FN327]
Cruikshank was also cited in dicta in later cases as supporting the
theory that the Second Amendment and the rest of Bill of Rights are
not enforceable against the states [FN328] (even though the facts of
Cruikshank involve private actors, *178 not state actors). That
theory, obviously, has long since been abandoned by the Supreme Court.
Among the earlier cases to reject non-incorporation was DeJonge v.
Oregon, holding that the right peaceably to assemble (one of the two
rights at issue in Cruikshank) was guaranteed by the 14th Amendment.
[FN329] And as discussed above, Cruikshank's dicta about the
Fourteenth Amendment "Privileges and Immunities" is no more binding on
modern courts than is Presser's statement on the same subject several
years later.

B. Scott v. Sandford

Holding that a free black could not be an American citizen,
[FN330] the Dred Scott majority opinion listed the unacceptable
consequences of black citizenship: *179 Black citizens would have
the right to enter any state, to stay there as long as they pleased,
and within that state they could go where they wanted at any hour of
the day or night, unless they committed some act for which a white
person could be punished. [FN331] Further, black citizens would have
"the right to. . .full liberty of speech in public and private upon
all subjects which [a state's] own citizens might meet; to hold public
meetings upon political affairs, and to keep and carry arms wherever
they went." [FN332]
Thus, Chief Justice Taney claimed that the "right to. . .keep and
carry arms" (like "the right to. . .full liberty of speech," and like
the right to interstate travel without molestation, and like the "the
right to. . .hold public meetings on political affairs") was a right
of American citizenship. The only logical source of these rights is
the United States Constitution. While the right to travel is not
textually stated in the Constitution, it has been found there by
implication. [FN333] As for the rest of the rights mentioned by the
Taney majority, they appear to be rephrasings of explicit rights
contained in the Bill of Rights. Instead of "freedom of speech,"
Justice Taney discussed "liberty of speech"; instead of the right
"peaceably to assemble", he discussed the right "to hold meetings",
and instead of the right to "keep and bear arms," he discussed the
right to "keep and carry arms." [FN334]
Although resolution of the citizenship issue was sufficient to end
the Dred Scott case, the Taney majority decided to address what it
considered to be an error in the opinion of the circuit court. Much
more than the citizenship holding, the part of Dred Scott that created
a firestorm of opposition among the northern white population was Dred
Scott's conclusion that Congress had no power to outlaw slavery in a
territory, as Congress had done in the 1820 Missouri Compromise, for
the future Territory of Nebraska. [FN335] Chief Justice Taney's
treatment of the question began with the universal assumption that the
Bill of Rights constrained Congressional legislation in the
territories.

No one, we presume, will contend that Congress can make any
law in a territory respecting the establishment of religion, or the
free exercise thereof, or abridging the freedom of speech or of the
press, or the right of the people of the territory peaceably to
assemble and to petition the government for redress of grievances.
*180 Nor can Congress deny to the people the right to keep and
bear arms, nor the right to trial by jury, nor compel anyone to be a
witness against itself in a criminal proceeding. [FN336] From the
universal assumption that Congress could not infringe the Bill of
Rights in the territories, Taney concluded that Congress could not
infringe the property rights of slave-owners by abolishing slavery in
the territories. [FN337]

The Taney Court obviously considered the Second Amendment as one of
the constitutional rights belonging to individual Americans. The
Henigan "state's rights" Second Amendment could have no application in
a territory, since a territorial government is by definition not a
state government. And since Chief Justice Taney was discussing
individual rights which Congress could not infringe, the only
reasonable way to read the Chief Justice's reference to the Second
Amendment is as a reference to an individual right. Nor can the
opinion of Chief Justice Taney (which was shared by six members of the
Court on the citizenship issue, and by five on the Territories issue)
be dismissed as casual dicta. The Court knew that Dred Scott would be
one the most momentous cases ever decided, as the Court deliberately
thrust itself in the raging national controversy over slavery. The
case was argued in two different terms, and the Chief Justice's
opinion began by noting that "the questions in controversy are of the
highest importance." [FN338]
And unlike most Supreme Court cases, Dred Scott became widely
known among the general population. The majority's statement listing
the right to arms as one of several individual constitutional rights
which Congress could not infringe was widely quoted during antebellum
debates regarding Congressional power over slavery. [FN339]
Dred Scott's holding about black citizenship was overruled by the
first sentence of the Fourteenth Amendment, which states that all
persons born in the Untied States are citizens of the United States.
[FN340] Dred Scott, which had exacerbated rather than cooled the
North-South anger which eventually caused the Civil War, became so
universally despised that many people forgot the details of what the
case actually said. After the Spanish-American War, the United States
acquired the new territories of Cuba, Puerto Rico, and the
Philippines, and acquired Hawaii after that nation's government was
overthrown in a coup orchestrated by American farming interests. Thus,
the Supreme Court, in The Insular Cases, was forced to determine the
constitutional *181 status of the new imperial territories. [FN341] In
Downes v. Bidwell, the Court majority held that, despite the
constitutional requirement that taxes imposed by Congress be uniform
throughout the United States, Puerto Rico could be taxed at a
different rate; Justice Henry Billings Brown's five-man majority
explicitly worried that a contrary result would force the Bill of
Rights to be applied in the new territories. Writing to Justice John
Harlan to applaud Harlan's dissenting opinion, [FN342] a New York
attorney exclaimed that the majority opinion was "the Dred Scott of
Imperialism!" [FN343] But if the Insular Cases Court had followed Dred
Scott, then Justice Harlan and the other three dissenters would have
been in the majority; for Dred Scott stated that the Bill of Rights
did apply in the territories.

Although the citizenship holding in Dred Scott was so
controversial that it was repudiated by a constitutional amendment,
the case's treatment of the Second Amendment as an individual right
was not; in each of the six times that the Court addressed the Second
Amendment in the rest of the nineteenth century, the Court always
treated the Second Amendment as an individual right.

C. Houston v. Moore

The very first case in which a Supreme Court opinion mentioned the
Second Amendment was Houston v. Moore, an 1821 case so obscure that
even modern scholars of the Second Amendment are often unaware of it.
[FN344] Part of the reason is that, thanks to a small error, the case
cannot be discovered via a Lexis or Westlaw search for "Second
Amendment."
The Houston case grew out of a Pennsylvania man's refusal to
appear for federal militia duty during the War of 1812. The failure to
appear violated a federal statute, as well as a Pennsylvania statute
that was a direct copy of the federal statute. When Mr. Houston was
prosecuted and convicted in a Pennsylvania court martial for violating
the Pennsylvania statute, his attorney argued that only the federal
government, not Pennsylvania, had the authority to *182 bring a
prosecution; the Pennsylvania statute was alleged to be a state
infringement of the federal powers over the militia.
When the case reached the Supreme Court, both sides offered
extensive arguments over Article I, section 8, clauses 15 and 16, in
the Constitution, which grant Congress certain powers over the
militia. [FN345] Responding to Houston's argument that Congressional
power over the national militia is plenary (and therefore Pennsylvania
had no authority to punish someone for failing to perform federal
militia service), the State of Pennsylvania lawyers retorted that
Congressional power over the militia was concurrent with state power,
not exclusive. [FN346] In support of this theory, they pointed to the
Tenth Amendment, which reserves to states all powers not granted to
the federal government. [FN347]
If, as Henigan, Bogus, and some other modern writers claim, the
only purpose of the Second Amendment were to guard state government
control over the militia, then the Second Amendment ought to have been
the heart of the State of Pennsylvania's argument. But instead,
Pennsylvania resorted to the Tenth Amendment to make the "state's
right" argument. There are two possibilities to explain the State of
Pennsylvania's lawyering. First, the Pennsylvania attorneys committed
malpractice, by failing to cite the Constitutional provision that was
directly on point (the Second Amendment's supposed guarantee of state
government control of the militia). Instead, the Pennsylvania lawyers
cited a Constitutional provision which made the state's right argument
only in a general sense, rather than in relation to the militia. The
other possibility is that the State of Pennsylvania lawyers were
competent, and they relied on the Tenth Amendment, rather than the
Second, because the Tenth guarantees state's rights, and the Second
guarantees an individual right.
Justice Bushrod Washington delivered the opinion of the Court,
holding that the Pennsylvania law was constitutional, because Congress
had not forbidden the states to enact such laws enforcing the federal
militia statute. [FN348] Moreover, because Houston had never showed up
for the militia muster, he had never entered federal service; thus,
Houston was still under the jurisdiction of the State of Pennsylvania.
[FN349] Justice William Johnson concurred; he argued *183 that Houston
could not be prosecuted for violating the federal law; accordingly, he
could be prosecuted for violating the state law. [FN350]
The Washington and Johnson opinions, therefore, upheld a state's
authority over militiaman Houston. Like the attorneys on both sides of
the case, neither Justice Washington nor Justice Johnson suggested
that the Second Amendment had anything to do with the case.
Justice Joseph Story, a consistent supporter of federal government
authority, dissented. [FN351] He argued that the Congressional
legislation punishing militia resisters was exclusive, and left the
states no room to act. [FN352]
Deep in the lengthy dissent, Justice Story raised a hypothetical: What
if Congress had not used its militia powers? If Congress were inert,
and ignored the militia, could the states act? "Yes," he answered:

If, therefore, the present case turned upon the question,
whether a state might organize, arm and discipline its own militia, in
the absence of, or subordinate to, the regulations of congress, I am
certainly not prepared to deny the legitimacy of such an exercise of
authority. It does not seem repugnant in its nature to the grant of a
like paramount authority to congress; and if not, then it is retained
by the states. The fifth [sic] amendment to the constitution,
declaring that "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," may not, perhaps, be thought to have any
important bearing on this point. If it have, it confirms and
illustrates, rather than impugns, the reasoning already suggested.
[FN353]

After acknowledging that the Second Amendment (mislabeled the "fifth"
amendment in a typo) was probably irrelevant, Justice Story suggested
that to the extent the Second Amendment did matter, it supported his
position.
Justice Story's dissent is inconsistent with the Henigan/Bogus
theory that Second Amendment somehow reduces Congress's militia
powers. Immediately, after the Second Amendment hypothetical, Justice
Story stated that if Congress actually did use its Article I powers
over the militia, then Congressional power was exclusive. There could
be no state control, "however small." [FN354] If federal militia
powers, when exercised, are absolute, then the Henigan/Bogus theory
that the Second Amendment limits federal militia powers is incorrect.
*184 The Story dissent in Houston does not address the issue of
individual Second Amendment rights. Justice Story laid out a fuller
explication of the Second Amendment in his Commentaries on the
Constitution of the United States, and his Familiar Exposition of the
Constitution of the United States. The Familiar Exposition has the
longest analysis of the Second Amendment:

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." One of the ordinary modes,
by which tyrants accomplish their purposes without resistance, is, by
disarming the people, and making it an offence to keep arms, and by
substituting a regular army in the stead of a resort to the militia.
The friends of a free government cannot be too watchful, to overcome
the dangerous tendency of the public mind to sacrifice, for the sake
of mere private convenience, this powerful check upon the designs of
ambitious men.
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. 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.
[FN355]

The Justice's Second Amendment is obviously an individual right,
intended to prevent the tyrannical tactic of "making it an offence to
keep arms." The purpose of arms possession is to facilitate a militia,
and the purpose of the militia is to suppress disorder from below (in
the form of riots) and from above (in the form of tyranny). In
contrast to some twentieth century *185 commentators, [FN356] Justice
Story shared the conventional wisdom of the nineteenth century
[FN357]: removing a tyrannical government would not be "insurrection"
but instead would be the restoration of constitutional law and order.

Conclusion

In addition to the oft-debated case of United States v. Miller,
[FN358] the Supreme Court has mentioned or quoted the Second Amendment
in thirty-seven opinions in thirty-five other cases, almost always in
dicta. One of the opinions, Justice Douglas's dissent in Adams v.
Williams, explicitly claims that the Second Amendment is not an
individual right. [FN359] Three majority opinions of the Court (the
1980 Lewis case, [FN360] the 1934 Hamilton case, [FN361] and the 1929
Schwimmer case [FN362]), plus one appeal dismissal (Burton v. Sills,
1969 [FN363]), and one dissent (Douglas in Laird [FN364]) are
consistent with either the individual rights or the states rights
theory, although Lewis is better read as not supportive of an
individual right, or not supportive of an individual right worthy of
any serious protection. (And knowing of Justice Douglas's later
dissent in Adams, his Laird dissent should not be construed as
supportive of an individual right.) Spencer v. Kemna refers to right
to bear arms as an individual right, but the opinion does not
specifically mention the Second Amendment, and so the reference could,
perhaps, be to the right established by state constitutions. [FN365]
Two other cases are complicated by off-the-bench statements of the
Justices. The 1976 Moore v. East Cleveland plurality opinion supports
the individual right, [FN366] but in 1989 the opinion's author,
retired Justice Powell, told a television interviewer that there was
no right to own a firearm. In an 1820 dissent, Justice Story pointed
to the Second Amendment to make a point about state authority over the
militia (although this would not necessarily be to the exclusion of an
individual right). [FN367] Justice Story's later scholarly *186
commentaries on the Second Amendment only addressed the individual
right, and did not investigate the Amendment as a basis of state
authority. [FN368]
Concurring in Printz, Justice Thomas stated that United States v.
Miller had not resolved the individual rights question; the tone of
the concurrence suggested that Justice Thomas considered the Second
Amendment to be an important individual right. [FN369]
Twenty-eight opinions remain, including nineteen majority
opinions. Each of these opinions treats the Second Amendment a right
of individual American citizens. Of these twenty-eight opinions, five
come from the present Rehnquist Court, and on the Rehnquist Court
there has been no disagreement that the Second Amendment is an
individual right.
Of course that fact that a right exists does not mean that every
proposed gun control would violate that right; indeed, many of the
opinions explicitly or implicitly endorse various controls, and,
except for Justice Black, none of the authors of the opinions claim
that the right is absolute. [FN370]
In the face of this Supreme Court record, is it accurate for gun
control advocates to claim that the non-individual nature of the
Second Amendment is "perhaps the most well-settled" point in all of
American constitutional law? [FN371] The extravagant claim cannot
survive a reading of what the Supreme Court has actually said about
the Second Amendment. In the written opinions of the Justices of the
United States Supreme Court, the Second Amendment does appear to be
reasonably well-settled--as an individual right. The argument that a
particular Supreme Court opinion's language about the Second Amendment
does not reflect what the author "really" thought about the Second
Amendment cannot be used to ignore all these written opinions--unless
we presume that Supreme Court Justices throughout the Republic's
history have written things about the Second Amendment that they did
not mean.
While the Warren Court and the Burger Court offered mixed records
on the Second Amendment, the opinions from the Rehnquist Court
(including from the Court's "liberals" Ginsburg and Stevens) are just
as clear as were the opinions from the Supreme Court Justices of the
nineteenth century: "the right of the people to keep and bear arms" is
a right that belongs to individual American citizens. Although the
boundaries of the Second Amendment have only partially been addressed
by Supreme Court jurisprudence, the core of the *187 Second Amendment
is clear: the Second Amendment--like the First, Third, Fourth, Fifth,
Sixth, and Fourteenth Amendments--belongs to "the people", not the
government.


[FNa1]. Research Director, Independence Institute, Golden, Colorado,
http:// i2i.org; J.D. 1985 University of Michigan Law School; B.A. in
History, 1982, Brown University. Author of Gun Control and Gun Rights
(NYU Press, forthcoming, 2001). I would like to thank Paul Blackman,
Clayton Cramer, Brannon Denning, Billie J. Grey, David Hunt, Dolores
Kopel, Glenn Harlan Reynolds, Eugene Volokh, and the Cincinnati Law
Library Association for very helpful comments. Any errors in this
article are the fault of society, and cannot be blamed on an
individual.

[FN1]. See, e.g., Sanford Lewinson, Is the Second Amendment Finally
Becoming Recognized as Part of the Constitution? Voices from the
Courts, 1998 B.Y.U. Rev. 127.

[FN2]. United States v. Miller, 307 U.S. 174 (1939).

[FN3]. Dennis Henigan, The Right to Be Armed: A Constitutional
Illusion, S.F. Barrister, Dec. 1989, P 19, available online at
<http:// www.handguncontrol.org/legalaction/C2/c2rtarms.htm>. The late
Dean Griswold of Harvard, who was a member of the board of Henigan's
group, expressed a nearly identical thought: "that the Second
Amendment poses no barrier to strong gun laws is perhaps the most
well-settled proposition in American constitutional law." Erwin N.
Griswold, Phantom Second Amendment 'Rights', Wash. Post, Nov. 4, 1990,
at C7

[FN4]. Dennis A. Henigan et al., Guns and the Constitution: The Myth
of Second Amendment Protection for Firearms in America (1995); Keith
A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth
Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5
(1989); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26
Val. U. L. Rev. 107 (1991) [[hereinafter Henigan, Arms, Anarchy]

[FN5]. Mark Polston, Obscuring the Second Amendment, 34 Virginia
Resolves, No. 32 (Spring 1994), http://
www.handguncontrol.org/legalaction/dockets/A1/obscure.htm.

[FN6]. Carl T. Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365
(1993); Carl T. Bogus, The Hidden History of the Second Amendment, 31
U.C. Davis L. Rev. 309 (1998). For a response to the latter article,
see David B. Kopel, The Second Amendment in the Nineteenth Century,
1998 BYU. L. Rev. 1359, 1515-29.
Some other scholarly sources rejecting individual rights are: Robert
J. Spitzer, The Politics of Gun Control (1995); George Anastaplo,
Amendments to the Constitution of the United States: A Commentary, 23
Loy. U. Chi. L.J. 631, 687-93 (1992); Michael A. Bellesiles, The
Origins of Gun Culture in the United States, 1760-1865, 83 J. Am.
Hist. 425 (1996); Lawrence Delbert Cress, An Armed Community: The
Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22
(1984); Samuel Fields, Guns, Crime and the Negligent Gun Owner, 10 N.
Ky. L. Rev. 141 (1982); Andrew D. Herz, Gun Crazy: Constitutional
False Consciousness and Dereliction of Dialogic Responsibility, 75
B.U. L. Rev. 57 (1995); Michael J. Palmiotto, The Misconception of the
American Citizen's Right to Keep and Bear Arms, 4 J. on Firearms &
Pub. Pol'y 85 (1992); Warren Spannaus, State Firearms Regulation and
the Second Amendment, 6 Hamline L. Rev. 383 (1983).

[FN7]. For an effort to trace the potential contours of a State's
Rights Second Amendment, see Glenn Harlan Reynolds & Don B. Kates, The
Second Amendment and States' Rights: A Thought Experiment, 36 Wm. &
Mary L. Rev. 1737 (1995) (arguing that a State's Rights Second
Amendment would give each state legislature the power to arm its
militia as it saw best, and thus the power to negate--within the
borders of that state--federal bans on particular types of weapons).

[FN8]. Glenn Harlan Reynolds, A Critical Guide to the Second
Amendment, 62 Tenn. L. Rev. 461, 463 (1995):
Perhaps surprisingly, what distinguishes the Second Amendment
scholarship from that relating to other constitutional rights, such as
privacy or free speech, is that there appears to be far more agreement
on the general outlines of Second Amendment theory than exists in
those other areas. Indeed, there is sufficient consensus on many
issues that one can properly speak of a "Standard Model" in Second
Amendment theory, much as physicists and cosmologists speak of a
"Standard Model" in terms of the creation and evolution of the
Universe. In both cases, the agreement is not complete: within both
Standard Models are parts that are subject to disagreement. But the
overall framework for analysis, the questions regarded as being
clearly resolved, and those regarded as still open, are all generally
agreed upon. This is certainly the case with regard to Second
Amendment scholarship.

[FN9]. See, e.g., Senate Subcommittee on the Constitution of the
Committee on the Judiciary, 97th Cong., 2d Sess., The Right To Keep
and Bear Arms (Comm. Print 1982); Akhil Amar, The Bill of Rights
(1998); Robert J. Cottrol, Introduction to 1 Gun Control and the
Constitution: Sources and Explorations on the Second Amendment at ix
(Robert J. Cottrol ed., 1993); Robert J. Cottrol & Raymond T. Diamond,
Public Safety and the Right to Bear Arms, in The Bill of Rights in
Modern America: After 200 Years 72 (David J. Bodenhamer & James W.
Ely, Jr., eds., 1993); Robert J. Cottrol, Second Amendment, in The
Oxford Companion to the Supreme Court of the United States 763 (Kermit
L. Hall et al. eds., 1992); Clayton Cramer, For the Defense of
Themselves and the State at xv (1994); 4 Encyclopedia of the American
Constitution 1639-40 (Leonard W. Levy et al. eds., 1986); Eric Foner,
Reconstruction: America's Unfinished Revolution, 1863-1876 (1989);
Stephen Halbrook, Freedmen, the Fourteenth Amendment, and the Right to
Bear Arms: 1866-1876 (1998); Stephen Halbrook, A Right To Bear Arms:
State And Federal Bills Of Rights And Constitutional Guarantees
(1989); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of
a Constitutional Right (1984); Edward F. Leddy, Guns and Gun Conrtol,
in Reader's Companion to American History 477-78 (Eric Foner & John A.
Garraty eds., 1991); Leonard W. Levy, Original Intent and the Framers'
Constitution 341 (1988); Leonard Levy, Origins of the Bill of Rights
(1999); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an
Anglo-American Right (1994); Laurence H. Tribe, I American
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"Origins of an Anglo- American Right", 39 How. L.J. 411 (1995)
(reviewing Joyce Lee Malcom, To Keep and Bear Arms: The Origins of an
Anglo-American Right (1994)); David B. Kopel, It Isn't About Duck
Hunting: The British Origins of the Right to Arms, 93 Mich. L. Rev.
1333 (1995) (reviewing Joyce Lee Malcolm, To Keep and Bear Arms: The
Origins of an Anglo-American Right (1994)); F. Smith Fussner, Book
Review, 3 Const. Commentary 582 (1986) (reviewing Stephen P. Halbrook,
That Every Man Be Armed: The Evolution of a Constitutional Right
(1984)); Joyce Lee Malcolm, Book Review, 54 Geo. Wash. L. Rev. 452
(1986) (reviewing Stephen P. Halbrook, That Every Man Be Armed: The
Evolution of a Constitutional Right (1984)); cf. Nicholas J. Johnson,
Beyond the Second Amendment: An Individual Right to Arms Viewed
through the Ninth Amendment, 24 Rutgers L.J. 1 (1992) (arguing that
the Ninth Amendment supports an individual right to arms). For a list
of all law review articles of firearms policy or the Second Amendment,
See David B. Kopel, Comprehensive Bibliography of the Second Amendment
in Law Review, 11 J. Firearms & Pub. Pol. 5 (1999), http://
www.Saf.org/ALLLawReviews.htm.

[FN10]. The nineteenth century scholars were (in roughly chronological
order): St. George Tucker; William Rawle; Joseph Story (see infra text
at note 354); Henry St. George Tucker; Benjamin Oliver; James Bayard;
Francis Lieber; Thomas Cooley (see note 25 infra); Joel Tiffany;
Timothy Farrar; George W. Paschal; Joel Bishop; John Norton Pomeroy;
Oliver Wendell Holmes, Jr.; Herbert Broom; Edward A. Hadley; Hermann
von Holst; John Hare; George Ticknor Curtis; John C. Ordronaux; Samuel
F. Miller; J.C. Bancroft Davis; Henry Campbell Black; George S.
Boutwell; James Schouler; John Randolph Tucker; and William Draper
Lewis. They are discussed in detail in David B. Kopel, The Second
Amendment in the 19th Century, 1998 BYU. L. Rev. 1359.

[FN11]. Garry Wills, Why We Have No Right to Bear Arms, N.Y. Rev.
Books, Sept. 21, 1995 at 62, 72.

[FN12]. See David C. Williams, Civic Republicanism and the Citizen
Militia: The Terrifying Second Amendment, 101 Yale L.J. 551 (1991);
David C. Williams, The Militia Movement and Second Amendment
Revolution: Conjuring with the People, 81 Cornell L. Rev. 879 (1996);
David C. Williams, The Unitary Second Amendment, 73 N.Y.U. L. Rev. 822
(1998).

[FN13]. See, e.g., Hickman v. Block, 81 F.3d 98, 101 (9th Cir. 1996)
("the Second Amendment is a right held by the states"); United States
v. Nelson, 859 F.2d 1318, 1320 (8th Cir. 1988) ("Later cases have
analyzed the Second Amendment purely in terms of protecting state
militias, rather than individual rights."); Quilici v. Morton Grove,
695 F.2d 261, 270 (7th Cir. 1982) (upholding city's ban on handguns;
"the debate surrounding the adoption of the Second and Fourteenth
Amendments...has no relevance to the resolution of the controversy
before us"); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976)
("it is clear that the Second Amendment guarantees a collective rather
than an individual right"); Eckert v. Philadelphia, 477 F.2d 610 (3d
Cir. 1973); United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir.
1971) ("the Second Amendment only confers a collective right of
keeping and bearing arms"); United States v. Tot, 131 F.2d 261, 266
(3d Cir. 1942) ("not adopted with individual rights in mind, but as a
protection for the States in the maintenance of their militia
organizations"), rev'd on other grounds, 319 U.S. 463 (1943).

[FN14]. See, e.g, Runnebaum v. Nationsbank of Maryland, N.A., 123 F.3d
156 n. 8 (4th Cir. 1997) (en banc, plurality opinion) ("Neither
gathering in a group nor carrying a firearm are one of the major life
activities under the ADA [Americans with Disabilities Act], though
individuals have the constitutional right to peaceably assemble, see
U.S. Const. amend. I; and to 'keep and bear Arms,' U.S. Const. amend.
II."); United States v. Atlas, 94 F.3d 447, 452 (8th Cir. 1996)
(Arnold, C.J., dissenting) ("possession of a gun, in itself, is not a
crime. [Indeed, though the right to bear arms is not absolute, it
finds explicit protection in the Bill of Rights.]"); Cases v. United
States, 131 F.2d 916, 921 (1st Cir. 1942) (federal law restricting gun
possession by persons under indictment "undoubtedly curtails to some
extent the right of individuals to keep and bear arms." Miller test
rejected because it would prevent federal government from restricting
possession of machine guns by "private persons."); United States v.
Emerson, 46 F. Supp.2d 598 (N.D. Tex. 1999) (dismissing criminal
prosecution of defendant for violation of 18 U.S.C. 922(g)(8) because
the provision violates the Second Amendment; case presents the most
thorough exposition of the competing views of the Second Amendment
ever presented in a federal court decision); Zappa v. Cruz, 30 F.
Supp. 2d 123, 138 (D. P.R. 1998):
These individual liberties, aside from abridging the governments'
ability to impose upon individual citizens--e.g., by protecting
freedom of religion, prohibiting the quartering of troops and the
taking [of] property for public use without compensation, and
guaranteeing due process of law--enhance the citizenry's ability to
police the government--e.g., by protecting speech, press, the right to
assemble, and the right to bear arms.
See also United States v. Gambill, 912 F. Supp. 287, 290 (S.D. Ohio
1996) ("an activity, such as keeping and bearing arms, that arguably
implicates the Bill of Rights."); Gilbert Equipment Co. v. Higgins,
709 F. Supp. 1071, 1090 (S.D. Ala. 1989) (Second Amendment "guarantees
to all Americans 'the right to keep and bear arms" ', but the right is
not absolute and it does not include right to import arms), aff'd 894
F.2d 412 (11th Cir. 1990) (mem.).

[FN15]. See Denning, Simple Cite, supra note 9.

[FN16]. United States v. Miller, 26 F. Supp. 1002, 1003 (W.D. Ark,
1939) (sustaining demurrer to prosecution, because "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 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." ')

[FN17]. Since a federal statute had been found unconstitutional, the
federal government was allowed to take the case directly to the
Supreme Court, under the law of the time.

[FN18]. See L.A. Powe, Jr., Guns, Words, and Constitutional
Interpretation, 38 Wm. & Mary L. Rev. 1311, 1331 (1997), supra note
10.

[FN19]. Miller, 307 U.S. at 177.

[FN20]. See, e.g., English v. State, 24 Tex. 394, 397 (1859); Cockrum
v. State, 24 Tex. 394, 397 (1859). A typical formulation is found in
the West Virginia case State v. Workman, which construed the Second
Amendment to protect an individual's right to own:
the weapons of warfare to be used by the militia, such as swords,
guns, rifles, and muskets--arms to be used in defending the State and
civil liberty--and not to pistols, bowie-knives, brass knuckles,
billies, and such other weapons as are usually employed in brawls,
street-fights, duels, and affrays, and are only habitually carried by
bullies, blackguards, and desparadoes, to the terror of the community
and the injury of the State.
State v. Workman, 35 W. Va. 367, 372 (1891).

[FN21]. Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840).

[FN22]. Id. at 158.

[FN23]. Miller, 307 U.S. at 182.

[FN24]. Presser v. Illinois, 116 U.S. 252 (1886) (Second Amendment not
violated by ban on armed parades; see infra) text at notes 310-20;
Robertson v. Baldwin, 165 U.S. 275 (1897) (Second Amendment not
violated by ban on carrying concealed weapons, see infra text at notes
290-96); Fife v. State, 31 Ark. 455 (Second Amendment does not apply
to the states; state right to arms not violated by ban on brass
knuckles); People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931)
(Michigan state constitution right to arms applies to all citizens,
not just militiamen; right is not violated by ban on carrying
blackjacks); Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840) (Tennessee
state constitution right to arms and U.S. Second Amendment right
belong to individual citizens, but right includes only the types of
arms useful for militia service); State v. Duke, 42 Tex. 455 (1874)
(Second Amendment does not directly apply to the states; Texas
constitution protects "arms as are commonly kept, according to the
customs of the people, and are appropriate for open and manly use in
self-defense, as well as such as are proper for the defense of the
State."); State v. Workman, supra note 20.

[FN25]. "Cooley's Constitutional Limitations, Vol. 1, p. 729":

Among the other defences to personal liberty should be
mentioned the right of the people to keep and bear arms. A standing
army is particularly obnoxious in any free government, and the
jealousy of one has at times been demonstrated so strongly in England
as almost to lead to the belief that a standing army recruited from
among themselves was more dreaded as an instrument of oppression than
a tyrannical king, or any foreign power. So impatient did the English
people become of the very army which liberated them from the tyranny
of James II, that they demanded its reduction, even before the
liberation could be felt to be complete; and to this day, the British
Parliament renders a standing army practically impossible by only
passing a mutiny bill from session to session. The alternative to a
standing army is "a well-regulated militia," but this cannot exist
unless the people are trained to bear arms. How far it is in the power
of the legislature to regulate this right, we shall not undertake to
say, as happily there has been little occasion to discuss that subject
by the courts.
In a later treatise, Cooley elaborated on how the right to
arms ensures the existence of the militia:
The Right is General.--It may be supposed from the phraseology
of this provision that the right to keep and bear arms was only
guaranteed to the militia; but this would be an interpretation not
warranted by the intent. The militia, as has been elsewhere explained,
consists of those persons who, under the law, are liable to the
performance of military duty, and are officered and enrolled for
service when called upon. But the law may make provision for the
enrolment of all who are fit to perform military duty, or of a small
number only, or it may wholly omit to make any provision at all; and
if the right were limited to those enrolled, the purpose of this
guaranty might be defeated altogether by the action or neglect to act
of the government it was meant to hold in check. The meaning of the
provision undoubtedly is, that the people, from whom the militia must
be taken, shall have the right to keep and bear arms, and they need no
permission or regulation of law for the purpose. But this enables the
government to have a well-regulated militia; for to bear arms implies
something more than the mere keeping; it implies the learning to
handle and use them in a way that makes those who keep them ready for
their efficient use; in other words, it implies the right to meet for
voluntary discipline in arms, observing in doing so the laws of public
order.
Thomas M. Cooley, The General Principles of Constitutional Law
in the United States of America 281-82 (Boston, Little, Brown 2d ed.
1891). The other scholar cited in the Miller footnote is "Story on The
Constitution, 5th Ed., Vol. 2, p. 646":
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.
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 burdens, 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.


For more on Justice Story, see text at notes 351 to 355, infra.

[FN26]. Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905) (right to
arms in Kansas Bill of Rights is only an affirmance of the state
government's supremacy over the militia; the Second Amendment means
the same). Another cited case, Jeffers v. Fair, 33 Ga. 347 (1862), is
a Confederate draft case.

[FN27]. Infra text at note 280.

[FN28]. One reason for the neglect of the cases may be mistaken claims
that the cases do not exist. "Issue Brief", Handgun Control, Inc.
website claims, "Since Miller, the Supreme Court has addressed the
Second Amendment in two cases." Actually, there have been 19 such
cases after Miller. The Second Amendment,
http://www.handguncontrol.org/myth.htm.

[FN29]. That the Court has discussed the Second Amendment relatively
rarely, compared to the First or Fourth Amendments, does not
necessarily mean that the Second Amendment is unimportant. Until
recent decades, there was almost no federal gun control to speak of
(except for the 1934 National Firearms Act, which was upheld in
Miller). That Congress hardly ever passed legislation which arguably
infringed the Second Amendment (and which would generate a challenge
invoking judicial review) is itself proof of the Second Amendment's
influence. "A principle of law is not unimportant because we never
hear of it; indeed we may say that the most efficient rules are those
of which we hear least, they are so efficient that they are not
broken." Frederic W. Maitland, The Constitutional History of England
481-82 (11th ed.) (Cambridge: Cambridge Univ. Pr., 1948).
Similarly, the Third Amendment has received little attention from the
Court, but that is not because the Third Amendment can be violated
with impunity; to the contrary, the Third Amendment has needed little
discussion because it is has been universally respected, and, except
in one case, never violated. Engblom v. Carey, 677 F. 2d 957 (2d Cir.
1982), on remand, 572 F. Supp. 44 (S.D. N.Y. 1983), aff'd. per curiam,
724 F.2d 28 (2d Cir. 1983).

[FN30]. Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev.
1997, 2050 (1994) ("All the words used by a court to explain its
result contribute to its justification, and parsing the opinion into
holding and dictum attributes a degree to precision to the enterprise
of judicial decision-making that it lacks in actual practice.")

[FN31]. United States v. Rabinowitz, 339 U.S. 56, 75 (1950)
(Frankfurter, J., dissenting) ("These decisions do not justify today's
decision. They merely prove how a hint becomes a suggestion, is
loosely turned into dictum, and finally elevated to a decision.").

[FN32]. The technique of using broader context to understand isolated
statements is not unique to analysis of Supreme Court cases. Biblical
scholars, for example, often refer to many different parts of the
Bible in order to explain a passage which is confusing or ambiguous in
isolation.
Because this article is only about the Second Amendment, it does not
analyze Supreme Court cases involving gun control or the militia in
which the Second Amendment was not mentioned

[FN33]. Handgun Control, Inc., The Second Amandment Myth & Meaning
<http:// www.handguncontrol.org/legalactiona/C2/C2amdbro.htm>:
How many times have you heard an opponent of gun control cite the
"right to keep and bear arms" without mentioning the introductory
phrase "A well regulated Militia, being necessary to the security of a
free state..." ? In fact, some years ago, when the NRA placed the
words of the Second Amendment near the front door of its national
headquarters in Washington, D.C., it omitted that phrase entirely! The
NRA's convenient editing is not surprising; the omitted phrase is the
key to understanding that the Second Amendment guarantees only a
limited right that is not violated by laws affecting the private
ownership of firearms.

[FN34]. See Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U.
L. Rev. 793 (1998).

[FN35]. R.I. Const. art. I, § 20 (1842).

[FN36]. N.H. Const. pt. I, art. XXXVI (1784).

[FN37]. Volokh, supra note 35, at 810.

[FN38]. Spencer v. Kemna, 523 U.S. 1, 4 (1998).

[FN39]. Id. at 5.

[FN40]. Id. at 10.

[FN41]. Id. at 36. (Stevens, J., dissenting).

[FN42]. Id. (emphasis added). Numerous state and federal statutes
outlaw firearms possession by persons convicted of felonies or certain
misdemeanors. Generally speaking, the federal prohibitions are broader
than their state counterparts.

[FN43]. Alabama: "That every citizen has a right to bear arms in
defense of himself and the state." Ala. Const. art. 1, § 26.
Alaska: "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." Alaska Const. art. 1, § 19.
Arizona: "The right of the individual citizen to bear arms in defense
of himself or the State shall not be impaired, but nothing in this
section shall be construed as authorizing individuals or corporations
to organize, maintain, or employ an armed body of men." Ariz. Const.
art. II, § 26.
Arkansas: "The citizens of this State shall have the right to keep and
bear arms for their common defense." Ark. Const. art. II, § 5.
Colorado: "The right of no person to keep and bear arms in defense of
his home, person and property, or in aid of the civil power when
thereto legally summoned, shall be called in question; but nothing
herein contained shall be construed to justify the practice of
carrying concealed weapons." Colo. Const. art. II, § 13. Connecticut:
"Every citizen has a right to bear arms in defense of himself and the
state." Conn. Const. art. I, § 15.
Florida: "The right of the people to keep and bear arms in defense of
themselves and of the lawful authority of the state shall not be
infringed, except that the manner of bearing arms may be regulated by
law." Fla. Const. art. I, § 8.
Georgia: "The right of the people to keep and bear arms, shall not be
infringed, but the General Assembly shall have the power to prescribe
the manner in which arms may be borne." Ga. Const. art. I, § 1, para.
5.
Hawaii: "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." Hawaii Const. art. 1, § 15.
Idaho: "The people have the right to keep and bear arms, which right
shall not be abridged; but this provision shall not prevent the
passage of laws to govern the carrying of weapons concealed on the
person nor prevent passage of legislation providing minimum sentences
for crimes committed while in possession of a firearm, nor prevent the
passage of legislation providing penalties for the possession of
firearms by a convicted felon, nor prevent the passage of any
legislation punishing the use of a firearm. No law shall impose
licensure, registration or special taxation on the ownership or
possession of firearms or ammunition. Nor shall any law permit the
confiscation of firearms, except those actually used in the commission
of a felony." Idaho Const. art. 1, § 11.
Illinois: "Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be infringed." Ill.
Const. art. I, § 22.
Indiana: "The people shall have a right to bear arms, for the defense
of themselves and the State." Ind. Const. art. I, § 32.
Kansas: "The people have the right to bear arms for their defense and
security; but standing armies, in time of peace, are dangerous to
liberty, and shall not be tolerated, and the military shall be in
strict subordination to the civil power." Kan. Const., Bill of Rights,
§ 4.
Kentucky: "All men are, by nature, free and equal, and have certain
inherent and inalienable rights, among which may be reckoned:...
Seventh: The right to bear arms in defense of themselves and of the
State, subject to the power of the General Assembly to enact laws to
prevent persons from carrying concealed weapons." Ky. Const. § I,
para. 7.
Louisiana: "The right of each citizen to keep and bear arms shall not
be abridged, but this provision shall not prevent the passage of laws
to prohibit the carrying of weapons concealed on the person." La.
Const. art. 1, § 11.
Maine: "Every citizen has a right to keep and bear arms for the common
defense; and this right shall never be questioned." Me. Const. art. I,
§ 16.
Massachusetts: "The people have a right to keep and bear arms for the
common defense. And as, in times of peace, armies are dangerous to
liberty, they ought not to be maintained without the consent of the
legislature; and the military power shall always be held in an exact
subordination to the civil authority, and be governed by it." Mass.
Const. Pt. I, art. xvii.
Michigan: "Every person has a right to keep or bear arms for the
defense of himself and the State." Mich. Const. art. I, § 6.
Mississippi: "The right of every citizen to keep and bear arms in
defense of his home, person, or property, or in aid of the civil power
where thereto legally summoned, shall not be called in question, but
the legislature may regulate or forbid carrying concealed weapons."
Miss. Const. art. III, § 12.
Missouri: "That the right of every citizen to keep and bear arms in
defense of his home, person and property, or when lawfully summoned in
aid of the civil power, shall not be questioned; but this shall not
justify the wearing of concealed Weapons." Mo. Const. art. 1, § 23.
Montana: "The right of any person to keep or bear arms in defense of
his own home, person, and property, or in aid of the civil power when
thereto legally summoned, shall not be called in question, but nothing
herein contained shall be held to permit the carrying of concealed
weapons." Mont. Const. art. II, § 12.
Nebraska: "All persons are by nature free and independent, and have
certain inherent and inalienable rights; among these are life,
liberty, the pursuit of happiness, and the right to keep and bear arms
for security or defense of self, family, home, and others, and for
lawful common defense, hunting, recreational use, and all other lawful
purposes, and such rights shall not be denied or infringed by the
state or any subdivision thereof. To secure these rights, and the
protection of property, governments are instituted among people,
deriving their just powers from the consent of the governed." Neb.
Const. Art. I, § 1.
Nevada: "Every citizen has the right to keep and bear arms for
security and defense, for lawful hunting and recreational use and for
other lawful purposes." Nev. Const. art. 1, § 11(1).
New Hampshire: "All persons have the right to keep and bear arms in
defense of themselves, their families, their property, and the State."
N.H. Const. Pt. I, art. 2a.
New Mexico: "No law shall abridge the right of the citizen to keep and
bear arms for security and defense, for lawful hunting and
recreational use and for other lawful purposes, but nothing herein
shall be held to permit the carrying of concealed weapons." N.M.
Const. art. II, § 6. North Carolina: "A well regulated militia being
necessary to be the security of a free State, the right of the people
to keep and bear arms shall not be infringed; and, as standing armies
in time of peace are dangerous to liberty, they shall not be
maintained, and the military shall be kept under strict subordination
to, and governed by, the civil power. Nothing herein shall justify the
practice of carrying concealed weapons, or prevent the General
Assembly from enacting penal statutes against that practice." N.C.
Const. art. I, § 30.
North Dakota: "All individuals are by nature equally free and
independent and have certain inalienable rights, among which are those
of enjoying and defending life and liberty; acquiring, possessing and
protecting property and reputation; pursuing and obtaining safety and
happiness; and to keep and bear arms for the defense of their person,
family, property, and the state, and for lawful hunting, recreational,
and other lawful purposes, which shall not be infringed." N.D. Const.
Art. I, § 1.
Ohio: "The people have the right to bear arms for their defense and
security; but standing armies, in time of peace, are dangerous to
liberty, and shall not be kept up; and the military shall be in strict
subordination to the civil power." Ohio Const. art. I, § 4.
Oklahoma: "The right of a citizen to keep and bear arms in defense of
his home, person, or property, or in aid of the civil power, when
thereunto legally summoned, shall never be prohibited; but nothing
herein contained shall prevent the Legislature from regulating the
carrying of weapons." Okla. Const. art. 11, § 26.
Oregon: "The people shall have the right to bear arms for the defence
of themselves, and the State, but the Military shall be kept in strict
subordination to the civil power." Or. Const. art. I, § 27.
Pennsylvania: "The right of the citizens to bear arms in defence of
themselves and the State shall not be questioned." Pa. Const. art. I,
§ 21.
Rhode Island: "The right of the people to keep and bear arms shall not
be infringed." R.I. Const. art. 1, § 22.
South Carolina: "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. As, in times of peace, armies are
dangerous to liberty, they shall not be maintained without the consent
of the General Assembly. The military power of the State shall always
be held in subordination to the civil authority and be governed by it.
No soldier shall in time of peace be quartered in any house without
the consent of the owner nor in time of war but in the manner
prescribed by law." S.C. Const. art. I, § 20.
South Dakota: "The right of the citizens to bear arms in defense of
themselves and the state shall not be denied." S.D. Const. art. VI, §
24. Tennessee: "That the citizens of this State have a right to keep
and bear arms for their common defense; but the Legislature shall have
power, by law, to regulate the wearing of arms with a view to prevent
crime." Tenn. Const. art. I, § 26.
Texas: "Every citizen shall have the right to keep and bear arms in
the lawful defence of himself or the State; but the Legislature shall
have power, by law, to regulate the wearing of arms, with a view to
prevent crime." Tex. Const. art. 1, § 23.
Utah: "The individual right of the people to keep and bear arms for
security and defense of self, family, others, property, or the state,
as well as for other lawful purposes shall not be infringed; but
nothing herein shall prevent the legislature from defining the lawful
use of arms." Utah Const. art. 1, § 6.
Vermont: "That the people have a right to bear arms for the defence of
themselves and the State-and as standing armies in time of peace are
dangerous to liberty, they ought not to be kept up; and that the
military should be kept under strict subordination to and governed by
the civil power." Vt. Const. Ch. I, art. 16.
Virginia: "That a well regulated militia, composed of the body of the
people, trained to arms, is the proper, natural, and safe defense of a
free state, therefore, the right of the people to keep and bear arms
shall not be infringed; that standing armies, in time of peace, should
be avoided as dangerous to liberty; and that in all cases the military
should be under strict subordination to, and governed by, the civil
power." Va. Const. art. I, § 13.
Washington: "The right of the individual citizen to bear arms in
defense of himself, or the state, shall not be impaired, but nothing
in this section shall be construed as authorizing individuals or
corporations to organize, maintain, or employ an armed body of Men."
Wash. Const. art. I, § 24.
West Virginia: "A person has the right to keep and bear arms for the
defense of self, family, home and state, and for lawful hunting and
recreational use." W. Va. Art. III, § 22.
Wisconsin: "The people have the right to keep and bear arms for
security, defense, hunting, recreation or any other lawful purpose."
Wis. Const. Art. I, § 25.
Wyoming: "The right of citizens to bear arms in defense of themselves
and of the state shall not be denied." Wyo. Const. art. I, § 24.
In addition, New York State's Civil Right Law has a statutory
provision which is a word for word copy of the Second Amendment. N.Y.
Civ. Rights § 4.

[FN44]. See United States v. Thompson/Center Arms Co., 504 U.S.
505,526 (1992); Printz v. United States, 521 U.S. 898 (1997) (Stevens,
J., dissenting); United States v. Lopez, 512 U.S. 1286 (1994)
(Stevens, J., dissenting).

[FN45]. Contrast Justice Stevens' view with that of Justice Blackmun
in the Lewis case, infra notes 94-113; the Blackmun opinion suggests
that the right to arms is so unimportant that a person may be
imprisoned for the exercise of that right after conviction of a
crime--even if the conviction is concededly unconstitutional.

[FN46]. 18 U.S.C. § 924(c)(1).

[FN47]. United States v. Muscarello, 524 U.S. 125 (1998).

[FN48]. Justice Scalia has not written an opinion on the Second
Amendment, but he has expressed his views out of court:
So also, we value the right to bear arms less than did the Founders
(who thought the right to self-defense to be absolutely fundamental),
and there will be few tears shed if and when the Second Amendment is
held to guarantee nothing more than the state National Guard. But this
just shows the Founders were right when they feared that some (in
their view misguided) future generation might wish to abandon
liberties that they considered essential, and so sought to protect
those liberties in a Bill of Rights. We may...like elimination of the
right to bear arms; but let us not pretend that these are not
reductions of rights.
Antonin Scalia, A Matter of Interpretation 43 (1997).

[FN49]. Muscarello, 524 U.S. at 139-50 (Ginsburg, J., dissenting).

[FN50]. Id. (footnotes omitted).

[FN51]. First: "[t]o support; to sustain; as, to bear a weight or
burden" Second: "To carry; to convey; to support and remove from place
to place" . 3:" [[t]o wear; to bear as a mark of authority or
distinction; as, to bear a sword, a badge, a name; to bear arms in a
coat." Noah Webster, An American Dictionary of the English Language
(1828) (emphasis in originagl).

[FN52]. Volokh, supra note 35, at 810.

[FN53]. Id.

[FN54]. Garry Wills, Why We Have No Right to Bear Arms, N.Y. Rev.
Books, Sept. 21, 1995, at 62.

[FN55]. Id.

[FN56]. Id. at 64.

[FN57]. During the Senate Judiciary Committee hearings on Ruth Bader
Ginsburg's nomination to the Supreme Court, Senator Dianne Feinstein
(a strong supporter of gun prohibition) asked Mrs. Ginsburg about the
Second Amendment. Mrs. Ginsburg politely refused to say anything,
except that the Amendment had not been incorporated.
Sen. Feinstein:
Let me begin with the Second Amendment. I first became concerned about
what does the Second Amendment mean with respect to guns in 1962 [sic]
when President Kennedy was assassinated...
Judge Ginsburg:
Senator Feinstein, I can say on the Second Amendment only what I said
earlier, the one thing that the court has held, that it is not
incorporated in the Bill of Rights [sic, 14th Amendment], it does not
apply to the states. The last time the Supreme Court spoke to this
question is in 1939. You summarized what that was and you also
summarized the state of law in the lower courts. But this is a
question that may well be before again, and all I can do is to
acknowledge what I understand to be the current case law, that this is
not incorporated in--that this is not one of the provisions binding on
the states. The last time the Supreme Court spoke to it is in 1939,
and because of where I sit, it would be inappropriate for me to say
anything more than that. I would have to consider, as I've said many
times today, the specific case, the briefs and the arguments that
would be made, and it would be injudicious for me to say anything more
with respect to the Second Amendment.
....
Sen. Feinstein:
[C]ould you talk at all about the methodology you might apply, what
factors you might look at in discussing Second Amendment cases should
Congress, say, pass a ban on assault weapons?
Judge Ginsburg:
I wish I could, Senator, but all I can tell you is that this is an
amendment that has not been looked at the by the Supreme Court since
1939, and it-- apart from the specific context, I can't--I really
can't expound on it. It's an area of law in which my court has had no
business and one I had no acquaintance as a law teacher. So really
feel that I'm not equipped beyond what I already told you, that it
isn't an incorporated amendment. The Supreme Court has not dealt with
it since 1939. And I would proceed with the care I would give to any
serious constitutional question.
At Justice Breyer's confirmation hearing, Senator Feinstein raised
similar issues. He answered:
As you recognize, Senator, the Second Amendment does--is in the
Constitution. It provides a protection. As you also have recognized,
the Supreme Court law on the subject is very, very, very few cases.
This really hasn't been gone into in any depth by the Supreme Court at
all. Like you, I've never heard anyone even argue that there's some
kind of constitutional right to have guns in a school. And I know that
every day--not every day; I don't want to exaggerate--but every week
or every month for the last 14 years I've sat on case after case in
which Congress has legislated rules, regulations, restrictions of all
kinds on weapons.
That is to say there are many, many circumstances in which carrying
weapons of all kinds is punishable by very, very, very severe
penalties. And Congress often--I mean by overwhelming majorities--has
passed legislation imposing very severe additional penalties on people
who commit all kinds of crimes with guns, even various people just
possessing guns under certain circumstances.
And in all those 14 years, I've never heard anyone seriously argue
that any of those was unconstitutional in a serious way. I shouldn't
say never, because I don't remember every case in 14 years. So,
obviously, it's fairly well conceded across the whole range of
society, whatever their views about gun control legislatively and so
forth that there's a very, very large area for government to act. At
the same time, as you concede and others, there's some kind of
protection given in the Second Amendment.
Now that's, it seems to me, where I have to stop, and the reason that
I have to stop is we're in a void in terms of what the Supreme Court
has said. There is legislation likely to pass or has recently passed
that will be challenged, and therefore I, if I am on that Court, have
to listen with an open mind to the arguments that are made in the
particular context.
Sen. Feinstein:
Well, would you hold that the 1939 decision [Miller] is good law?
Justice Breyer:
I've not heard it argued that it's not, but I haven't reviewed the
case and I don't know the argument that would really come up. I know
that it's been fairly limited, what the Supreme Court has said. And I
know that it's been fairly narrow. I also know that other people make
an argument for a somewhat more expanded view. But nobody that I've
heard makes the argument going into these areas where there is quite a
lot of regulation already. I shouldn't really underline no one,
because you can find, you know, people who make different arguments.
But it seems there's a pretty broad consensus there. Sen. Feinstein:
Would you attach any significance to the framers of the Second
Amendment, where it puts certain things in capital letters?
Justice Breyer:
I'm sure when you interpret this you do go back from the text to the
history and try to get an idea of what they had in mind. And if there
is a capital letter there, you ask why is there this capital letter
there, somebody had an idea, and you read and try to figure out what
the importance of that was viewed at the time and if that's changed
over time.
Sen. Judiciary Comm., Confirmation Hearing for Stephen Breyer, July
13, 1994, Federal News Service Lexis library.

[FN58]. Printz v. United States, 521 U.S. 898 (1997)

[FN59]. Id. at 937 (Thomas, J., concurring).

[FN60]. The Civil Rights Act of 1964 used the interstate commerce
power to regulate parties to commercial transactions, such as hotel or
restaurant guests and owners. But the Brady Act attempted to expand
the interstate commerce power even further, by forcing third parties
to become involved in the commercial transaction. The Brady Act
commandeered local sheriffs and police to perform background checks on
a commercial act--the retail sale of a handgun. It was as if the Civil
Rights Act had compelled state and local government employees to serve
as race sensitivity mediators in hotel and restaurants. It was one
thing to use the interstate commerce power to regulate commerce. It is
another thing use that power to force people who are stranger to the
commercial transaction to get involved. See David B. Kopel, The Brady
Bill Comes Due: The Printz Case and State Autonomy, Geo. Mason Univ.
Civ. Rights L.J. 189 (1999).

[FN61]. Printz, 521 U.S. at 937-38 (Thomas, J., concurring).

[FN62]. Id.

[FN63]. In contrast to the suggestion that the Bill of Rights might
"confer" the right to bear arms, the Supreme Court in the 1875 case of
United States v. Cruikshank stated that the Second Amendment, like the
First Amendment, does not confer rights on anyone. Rather, those
Amendments simply recognized and protected pre-existing human rights.
See text at notes 321 to 328.

[FN64]. Printz, 521 U.S. at 938-39 (Thomas, J., concurring).

[FN65]. See Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464 (1982).

[FN66]. Printz, 521 U.S. at 938 (Thomas, J., concurring).

[FN67]. See Robertson v. Denver, 874 P.2d 325 (Colo. 1994); Arnold v.
City of Cleveland, 616 N.E.2d 163 (Ohio 1993). For a discussion of
these cases, see David Kopel, Clayton Cramer & Scott Hattrup, A Tale
of Three Cities: The Right to Bear Arms in State Supreme Courts, 68
TEMP. L. REV. 1177 (1995).

[FN68]. Printz, 521 U.S. at 938-39 (Thomas, J., concurring).

[FN69]. Id.

[FN70]. Id. at 939 (citing 3 J. Story, Commentaries § 1890, p. 746
(1833)).

[FN71]. See United States v. Miller, 307 U.S. 174 (1939).

[FN72]. Printz, 521 U.S. at 939 (Thomas, J., concurring). See note 9
supra.

[FN73]. See Adamson v. California, 332 U.S. 46, 78 (Black, J.,
dissenting).

[FN74]. See Levinson, supra note 9.

[FN75]. Albright v. Oliver, 510 U.S. 266 (1994). The only evidence
against the person falsely accused came from a paid informant who had
provided false information more than 50 times before. Id. at 292
(Stevens, J., dissenting). For more on the degradation of law
enforcement caused by over- reliance on informants, especially in drug
and gun cases, see generally David B. Kopel and Paul H. Blackman, The
Unwarranted Warrant: The Waco Warrant and the Decline of Law
Enforcement, 18 Hamline J. Pub. L. & Pol 1 (1999).

[FN76]. Albright, 510 U.S. at 274-275.

[FN77]. Id. at 306-08 (Stevens, J., dissenting).

[FN78]. Id. at 307 (Stevens, J., dissenting) (footnote marker omitted)
(emphasis added).

[[FN79]. Poe v. Ullman, 367 U.S. 497, 523 (1961) (Harlan, J.,
dissenting).

[FN80]. See discussions of Planned Parenthood v. Casey, infra text at
notes 82-84; Moore v. East Cleveland, infra text at notes 115-36; Roe
v. Wade, infra text at notes 146-53.

[FN81]. Infra note 180.

[FN82]. Planned Parenthood v. Casey, 505 U.S. 833, 848-49 (1992).

[FN83]. Id. at 841.

[FN84]. Infra at notes 200 to 204.

[FN85]. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

[FN86]. The evidence was some of Verdugo-Urquidez's personal papers.
Under the original intent of the Fourth and Fifth Amendments, the
seizure of such papers would be seen as particularly inappropriate.
The English government's use of diaries and other personal papers in
prosecution of dissidents was widely regarded in America as one of the
great outrages of British despotism. See Akhil Amar, The Bill of
Rights 65-67 (1998). Under Boyd v.United States, the Court affirmed
that private papers could not be introduced against a defendant,
because the use of such papers would violate the Fourth and Fifth
Amendments. Boyd v. United States, 116 U.S. 616 (1886). Unfortunately,
a later Supreme Court abandoned this rule; thus, Independent Counsel
Kenneth Starr was well within the letter of the law when his staff
subpoenaed and read the diaries of Monica Lewinsky and her friends.

[FN87]. Verdugo-Urquidez, 494 U.S. at 265.

[FN88]. Verdugo is of course a Fourth Amendment case, not a Second
Amendment case. But there is no reason to believe that the Court did
not mean what it said about the Second Amendment in Verdugo.
Oddly, some of the same persons who want the public to ignore what the
Supreme Court said about the Second Amendment in the Verdugo case
instead want the public to rely on what a retired justice said about
the Second Amendment in a forum with much less precedential value than
a Supreme Court decision or a law journal: an article in Parade
magazine.
While on the Supreme Court, Chief Justice Warren Burger never wrote a
word about the Second Amendment. After retirement, he wrote an article
for Parade magazine that is the only extended analysis by any Supreme
Court Justice of why the Second Amendment does not guarantee an
individual right. Warren Burger, The Right to Bear Arms, Parade, Jan.
14, 1990, at 4-6.
Chief Justice Burger argued that the Second Amendment is obsolete
because we "need" a large standing army, rather than a well-armed
citizenry. But the notion that constitutional rights can be discarded
because someone thinks they are obsolete is anathema to a written
Constitution. If a right is thought "obsolete," the proper approach is
to amend the Constitution and remove it. After all, the Seventh
Amendment guarantees a right to a jury trial in all cases involving
more than twenty dollars. U.S. Const. amend. VII. In 1791, twenty
dollars was a lot of money; today it is little more than pocket
change. Nevertheless, courts must (and do) enforce the Seventh
Amendment fully.
And while the Second Amendment certainly drew much of its original
support from fear of standing armies, its language is not limited to
that issue. "Legislation, both statutory and constitutional, is
enacted,...from an experience of evils...its general language should
not, therefore, be necessarily confined to the form that evil had
heretofore taken...[A] principle to be vital must be capable of wider
application than the mischief which gave it birth." Weems v. United
States, 217 U.S. 349, 373 (1910).
Yet after attacking the Second Amendment as obsolete, Chief Justice
Burger's essay affirmed that "Americans have a right to defend their
homes." If this right does not derive from the Second Amendment, does
it come from the Ninth Amendment, as Nicholas Johnson has argued? See
Nicholas Johnson, Beyond the Second Amendment: An Individual Right to
Arms Viewed Through the Ninth Amendment, 24 RUTGERS L.J. 1, 49 (1992).
The Burger essay does not say.
Next comes the real shocker: "Nor does anyone seriously question that
the Constitution protects the right of hunters to own and keep
sporting guns for hunting game any more than anyone would challenge
the right to own and keep fishing rods and other equipment for
fishing--or to own automobiles."
In a single sentence, the former Chief Justice asserts that three
"Constitutional rights"--hunting, fishing, and buying cars--are so
firmly guaranteed as to be beyond question. Yet no Supreme Court case
has ever held any of these activities to be Constitutionally
protected.
What part of the Constitution protects the right to fish? The 1776
Pennsylvania Constitution guaranteed a right to fish and hunt, and the
minority report from the 1789 Pennsylvania ratifying convention made a
similar call. Various common law sources (such as St. George Tucker's
enormously influential American edition of Blackstone) likewise
support hunting rights. 3 William Blackstone, Commentaries 414 n.3
(St. George Tucker ed., Lawbook Exchange, Ltd. 1996) (1803). And some
state Constitutions guarantee a right to arms for hunting, among other
purposes. See, e.g,, the state constitutions of New Mexico, Nevada,
West Virginia, and Wisconsin, supra note 43.
But the Supreme Court has never recognized such a right, and its lone
decision on the subject is to the contrary. Patsone v. Pennsylvania,
232 U.S. 138 (1914) (ban on possession of hunting guns by aliens is
legitimate, because the ban does not interfere with gun possession for
self-defense; the Court did not discuss the Second Amendment).
Similarly, the "right" to own automobiles could, arguably, be derived
from the right to interstate travel but it is hardly a settled matter
of law, despite what the Chief Justice seemed to say.
Chief Justice Burger contrasted "recreational hunting" guns with
"Saturday Night Specials" and "machine guns," implying that the latter
two are beyond the pale of the Constitution. Thus, according to the
Parade essay, some unidentified part of the Constitution (but not the
Second Amendment) guarantees a right to own guns for home defense, a
right to own hunting guns, a right to fishing equipment, and a right
to buy automobiles. But the Constitution does not guarantee the right
to own inexpensive handguns or machine guns.
Chief Justice Burger's "machine gun" comment was particularly odd in
light of what he was pictured holding on the front cover of Parade: an
assault weapon. The Chief Justice displayed his grandfather's rifled
musket, with which his grandfather had killed or attempted to kill
people during the Civil War. While the musket seems quaint and
non-threatening today, it was a state of the art assault weapon in its
time. Under the Miller test (arms suitable for militia use; see supra
text at note 19), the nineteenth century rifled musket and the
twentieth century machine gun would seem to be much closer to the core
of the Second Amendment than would "recreational hunting guns."
After writing the Parade essay, Chief Justice Burger participated in
an advertising campaign for Handgun Control, Inc., in which he called
the NRA's view of the Second Amendment "a fraud." Given that the Chief
Justice agreed with the NRA that the Constitution protects a right to
own home defense guns and recreational sporting guns, and disagreed
with the NRA about "Saturday Night Specials," the "fraud" rhetoric was
rather extreme. Was it reasonable to call the NRA fraudulent for
locating the right in the Second Amendment, as opposed to the other
(unknown) part of the Constitution that the Chief Justice would
prefer?

[FN89]. Verdugo-Urquidez, 494 U.S. at 282 (Brennan, J., dissenting).

[FN90]. Handgun Control explains Verdugo thusly:

But the issue of whether the right to bear arms is granted to
"the people" only in connection with militia service is not even
addressed in the Verdugo-Urquidez decision. At most, the decision
implies that the Second Amendment right extends only to U.S. citizens;
it does not address the precise scope of the right granted. In no way
does the Court's ruling contradict the idea that the right of the
people to bear arms is exercised only through membership in a "well
regulated Militia."

Handgun Control, Exploding the NRA's Second Amendment Indeology: A
Guide for Gun Control Advocates, http://
www.handguncontrol.org/legalaction/C2/C2myth.htm. Here, Henigan is
apparently adopting an alternative theory of the Second Amendment.
Rather than the Second Amendment guaranteeing a right to state
governments (as Henigan claimed in his law review articles), the
Second Amendment is now a right that does belong to people (rather
than to state governments), but this right only applies to people in a
well-regulated militia. This is also the view of Herz. See generally
Herz, supra note 6. But neither Henigan nor Herz explain what this
right might mean. Does a National Guardsman have a legal cause of
action when the federal government takes away his rifle? Even though
the rifle is owned by the federal government? See 32 U.S.C. §
105(a)(1).
If a disarmed National Guardsman does not have a cause of action, then
who else could exercise the Second Amendment right to be armed in "a
well- regulated militia" ? The fundamental problem with Henigan's
theories (and with those of his followers) is that the theories are
not meant as an actual explanation of anything. They are meant to
convince people that the Second Amendment places no restraint on gun
control, but the theories are not meant to describe what the Second
Amendment does protect.

[FN91]. United States v. Verdugo-Urquidez, 856 F. 2d 1214, 1239 (9th
Cir. 1988) (Wallace, J., dissenting), rev'd 494 U.S. 259 (1990)
("Besides the fourth amendment, the name of 'the people' is
specifically invoked in the first, second, ninth, and tenth amendment.
Presumably, 'the people' identified in each amendment is coextensive
with 'the people' cited in the other amendments.")

[FN92]. 494 U.S. 259 (1990).

[FN93]. Lewis v. United States, 445 U.S. 55 (1980).

[FN94]. 18 U.S.C. App. § 1202(a)(1).

[FN95]. Lewis, 445 U.S. at 57-58.

[FN96]. Id. (citing Gideon v. Wainright, 372 U.S. 335 (1963)).

[FN97]. Gideon v. Wainright, 372 U.S. 335, 345 (1963).

[FN98]. Lewis, 445 U.S. at 62-63 (citing 114 Cong. Rec. 14773 (1968)).

[FN99]. Id. at 62.

[FN100]. Powell v. Alabama, 287 U.S. 45 (1932).

[FN101]. Lewis, 445 U.S. at 69 (Brennan, J., dissenting).

[FN102]. Id. at 66.

[FN103]. Id. at 65-66, n. 8

[FN104]. Printz v. United States, 521 U.S. 898 (1997)

[FN105]. United States v. Thompson/Center Arms Co., 504 U.S. 505
(1992) (statutory interpretation case holding that a handgun and rifle
kit was not subject to a National Firearms Act tax applicable to short
rifles; that a buyer could illegally assemble certain parts to create
a short rifle did not bring the lawful sale of rifle and handgun
components within the terms of the tax statute).

[FN106]. Stephen Halbrook, Firearms Law Deskbook 1-11 to 1-12 (1999
ed.)

[FN107]. United States v. Three Winchester 30-30 Caliber Lever Action
Carbines, 363 F. Supp. 322, 323 (E.D. Wis. 1973).

[FN108]. Cody v. United States, 460 F.2d 34 (8th Cir. 1972).

[FN109]. As in this quote from Cody, the First Circuit's 1943 Cases
decision is sometimes cited as a lower court following Miller. See
Cases v. United States, 131 F.2d 916 (1st Cir. 1942). To the contrary,
Cases limits Miller to its facts, and refuses to apply the Miller
relationship-to-the- militia test. The Miller test, explained the
Cases judges, would allow "private citizens" to possess machine guns
and other destructive weapons. Cases upholds a federal gun control law
while acknowledging that the law limits the exercise of Second
Amendment rights.

[FN110]. Cody, 460 F.2d at 36.

[FN111]. Johnson v. Zerbst, 304 U.S. 458, 465 (1938).

[FN112]. See. e.g., Miller, 307 U.S. at 178.

[FN113]. See, e.g., Cockrum v. State, 24 Tex. 394, 397 (1859).

[FN114]. Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840) (right to arms
is for defense against tyranny, not for "private" defense; while "The
citizens have the unqualified right to keep the weapon", the
legislature can restrict the carrying of firearms) (emphasis in
original).

[FN115]. Moore v. East Cleveland, 431 U.S. 494, 495-96 (1976).

[FN116]. Id. at 505-06.

[FN117]. Id. at 496-97.

[FN118]. Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[FN119]. Albright v. Oliver, 510 U.S. 266, 306-08 (1994) (Stevens, J.,
dissenting).

[FN120]. Moore, 431 U.S. at 502.

[FN121]. Id. at 542 (White, J., dissenting).

[FN122]. 1 Wm. & Mary sess. 2, ch. 2 (1689); see also Malcolm, supra
note 9.

[FN123]. Eugene Volokh, Sources on the Second Amendment and Rights to
Keep and Bear Arms in State Constitutions, pt. I <http://
www.law.ucla.edu/faculty/volokh/ 2amteach/sources.htm#TOC1>; David
Young, The Origin of the Second Amendment (1991).

[FN124]. See Young, supra note 123.

[FN125]. Buzzard v. State, 20 Ark. 106 (1842).

[FN126]. Kopel, The Second Amendment in the 19th Century, supra note
10.

[FN127]. Gary Kleck, Targeting Guns: Firearms and Their Control
(1997).

[FN128]. The dominant line of traditional cases limits the scope of
"arms" protected by the Second Amendment to arms which an individual
could use in a militia; in the nineteenth century, rifles and swords
were the paradigm of such weapons. Kopel, The Second Amendment in the
19th Century, supra note 10. A minority line of cases goes further,
and protects weapons which could be useful for personal defense, even
if not useful for militia service. See, e.g., State v. Kessler, 614
P.2d 94 (Or. 1980) (billy club); State v. Delgado, 692 P.2d 610 (Or.
1984) (switchblade knife).

[FN129]. In one state, Massachusetts, the highest court has construed
the right as belonging to the state government, rather than to
individuals. Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 847
(1976). But see Commonwealth v. Murphy 166 Mass. 171, 44 N.E. 138
(1896). In Kansas, a 1905 case held that the right in the state
constitution belonged to the state government, and not to the people.
City of Salinas v. Blaksley, 72 Kan. 230, 83 P. 619 (1905) This
holding was implicitly rejected in a later case. Junction City v.
Mevis, 226 Kan. 526, 601 P.2d 1145 (1979).

[FN130]. John R. Lott, Jr., More guns, less crime: understanding crime
and gun-control laws. (Univ. of Chicago Press, 1998).

[FN131]. Vermont and Idaho (outside Boise, where a permit is required
and readily obtainable).

[FN132]. Akhil Amar, The Bill of Rights 77-78 (1998).

[FN133]. Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897).

[FN134]. Moore, 431 U.S. at 502.

[FN135]. "With respect to handguns... it is not easy to understand why
the Second Amendment, or the notion of liberty, should be viewed as
creating a right to own and carry a weapon that contributes so
directly to the shocking numbers of murders in the United States."
American Bar Association Speech, Toronto, Canada, Aug. 7, 1988.

[FN136]. The MacNeil/Lehrer NewsHour, Mar.16, 1989, trans. no. #3389,
Lexis Transcripts library:
MR. LEHRER: Another issue that was before the court and is still
before the nation as we go into a new year is the subject of gun
control. You have said that the constitution does not guarantee the
right to bear arms. Explain that.
JUSTICE POWELL: Have you read the second amendment?
MR. LEHRER: Well, I think I have but be my guest.
JUSTICE POWELL: Well, it talks about militia. In the days that the
amendment was adopted in 1791, each state had an organized militia.
The states distrusted the national government, didn't believe a
national government had the authority or the ability to protect their
liberties, so the militia was a very important factor to the states.
This court decided a case that I haven't seen decided, I'm not a
hundred percent sure, I think it was the United States against Miller
decided back in the late 30's, in which the question involved a sawed
off shot gun. I won't go into the details of the opinion, but in
essence, there's language in that that suggests what I believe, and
that is that the second amendment was never intended to apply to hand
guns or, indeed to sporting rifles and shot guns. I've had a shot gun
since I was 12 years old and I still occasionally like to shoot birds,
but hand guns certainly were not even dreamed of in the sense that
they now exist at the time the second amendment was adopted.
Actually, handguns had been invented and were well known by 1789. See
Ian V. Hogg, The Illustrated Encylopedia of Firearms (1978). Handguns
were common enough in the early sixteenth century so that proposed
legislation as early as 1518 addressed them. Id. at 16-17. By the
latter part of the 1500s, handguns had become standard cavalry
weapons. Id. at 17. When the Second Amendment was ratified, state
militia laws requiring most men to supply their own firearms required
officers to supply their own pistols.

[FN137]. Adams v. Williams, 407 U.S. 143 (1972).

[FN138]. Id. at 144-45.

[FN139]. Id. at 149.

[FN140]. Id. at 149 (Douglas, J., dissenting).

[FN141]. Id. at 150-51. Justice Douglas was a newly-appointed member
of the Court that decided Miller, but he did not participate in the
case, having joined the Court after the case was argued. Justice Black
(whose views on the Second Amendment are found infra at notes 179-82,
194-96, 221-28) did serve on the Miller Court, and joined in the
unanimous decision.

[FN142]. Id. at 153 (Brennan, J., dissenting).

[FN143]. Id. at 151-52.

[FN144]. See Lott, supra note 130.

[FN145]. Adams, at 153 (Marshall, J., dissenting).

[FN146]. Roe v. Wade, 410 U.S. 113 (1973).

[FN147]. See, e.g., William Van Alstyne, Closing The Circle Of
Constitutional Review from Griswold v. Connecticut To Roe v. Wade: An
Outline Of A Decision Merely Overruling Roe, 1989 Duke L.J. 1677.

[FN148]. Roe, 410 U.S. at 167-68 (Stewart, J., concurring).

[FN149]. Poe v. Ullman, 367 U.S. 497, 523 (1961) (Harlan, J.,
dissenting).

[FN150]. Id. at 167. Roe, 410 U.S. 113.

[FN151]. Planned Parenthood v. Casey, 505 U.S. 833, 848-49 (1992).

[FN152]. Moore v. East Cleveland, 431 U.S. 494, 502 (1976).

[FN153]. Albright v. Oliver, 510 U.S. 266 (1994); Moore, 410 U.S. at
542.

[FN154]. Roe v. Wade, 410 U.S. 113, 169 (1973).

[FN155]. Adams v. Williams, 407 U.S. 143 (1972).

[FN156]. Laird v. Tatum, 408 U.S. 1, 2-3 (1972).

[FN157]. Id. at 3.

[FN158]. Id. at 15-16.

[FN159]. Id.

[FN160]. Id. at 16-17 (Douglas, J., dissenting).

[FN161]. Id.

[FN162]. Id. at 17-18.

[FN163]. Earl Warren, The Bill of Rights and the Military, 37 N.Y.U.
L. Rev. 181, 185 (1962).

[FN164]. Laird, 408 U.S. at 22-23, quoting Earl Warren, The Bill of
Rights and the Military, supra note 163. (emphasis added).

[FN165]. For the best analysis of how Madison synthesized two
different traditions in the Second Amendment (the republican militia
theory in the purpose clause, and the human rights theory in the main
clause), see Hardy, Armed Citizens, Citizen Armies: Toward a
Jurisprudence of the Second Amendment, supra note 9.

[FN166]. Hamilton v. Regents of the Univ. of California, 293 U.S. 245
(1934).

[FN167]. Burton v. Sills, 394 U.S. 812 (1969).

[FN168]. Burton v. Sills, 248 A.2d 521 (N.J. 1968).

[FN169]. Burton, 394 U.S. at 812.

[FN170]. Id.

[FN171]. Id. The decision was per curiam, with Justice Brennan not
participating.

[FN172]. Mandel v. Bradley, 432 U.S. 173, 176 (1977).

[FN173]. The New Jersey court in Burton could never be charged with
excessive regard for individual rights, for the court wrote, "the
common good takes precedence over private rights...Our basic freedoms
may be curtailed if sufficient reason exists therefor. Only in a very
limited sense is a person free to do as he pleases in our modern
American society." Burton v. Sills, 240 A.2d 432, 434 (N.J. 1968). In
contrast, the New Jersey Supreme Court in 1925 had recognized "The
right of a citizen to bear arms," but had explained that the right "is
not unrestricted." Hence, a law requiring a license to carry a
concealed revolver was not unconstitutional. State v. Angelo, 3 N.J.
Misc. 1014 (Sup. Ct. 1925). Since New Jersey is one of the few states
without a state constitutional right to arms, the court's reference to
the "right of the citizen" must have been a reference to the Second
Amendment.

[FN174]. For Presser see infra text at notes 310-20.

[FN175]. Id.

[FN176]. Printz v. United States, 521 U.S. 898, 937 (1997) (Thomas,
J., concurring).

[FN177]. Mandel, 432 U.S. at 176.

[FN178]. Presser v. Illinois, 116 U.S. 252 (1886).

[FN179]. Duncan v. Louisiana, 391 U.S. 145 (1968).

[FN180]. Adamson v. California, 332 U.S. 46, 68-78 (1947) (Black, J.,
dissenting).

[FN181]. Duncan, 391 U.S. at 164-65 (Black, J., concurring).

[FN182]. Id. at 166-67 (quoting Cong. Globe, 39th Cong., 1st Sess., at
2765-66 (1866)) (emphasis added).

[FN183]. Infra notes 194-97, 221-28.

[FN184]. Malloy v. Hogan, 378 U.S. 1 (1964).

[FN185]. Id. at 5 n. 2.

[FN186]. Id.

[FN187]. See United States v. Cruikshank, 92 U.S. 542, 551 (1875)
(right to assemble); Prudential Ins. Co . v. Cheek, 259 U.S. 530, 543
(1922) (First Amendment); Weeks v. United States, 232 U.S. 383, 398
(1914) (Fourth Amendment); Hurtado v. California, 110 U.S. 516, 538
(1884) (Fifth Amendment requirement of grand jury indictments); Palko
v. Connecticut, 302 U.S. 319, 328 (1937) (Fifth Amendment double
jeopardy); Maxwell v. Dow, 176 U.S. 581, 595 (1900) (Sixth Amendment
jury trial); Walker v. Sauvinet, 92 U.S. 90, 92 (1875) (Seventh
Amendment jury trial); In re Kemmler, 136 U.S. 436 (1890) (Eighth
Amendment cruel and unusual punishment, electrocution); McElvaine v.
Brush, 142 U.S. 155 (1891); O'Neil v. Vermont, 144 U.S. 323, 332
(1892) (Eighth Amendment prohibition against cruel and unusual
punishment). Except for Hurtardo and Walker, of these cases have been
undone by later cases.

[FN188]. Konigsberg v. State Bar of California, 366 U.S. 36 (1961)

[FN189]. Id. at 57-58 (Black, J., dissenting).

[FN190]. Id. at 44.

[FN191]. See Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399,
433 (1985).

[FN192]. Konigsberg, 366 U.S. at 49-50.

[FN193]. Id. at 51.

[FN194]. Id. at 49-50 (emphasis added).

[FN195]. Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865
(1960).

[FN196]. Id. at 872.

[FN197]. Id. at 873.

[FN198]. Id. at 865.

[FN199]. Poe v. Ullman, 367 U.S. 497 (1961).

[FN200]. Id. at 542-43 (Harlan, J., dissenting) (emphasis added).

[FN201]. Albright v. Oliver, supra note 78; Planned Parenthood v.
Casey, supra note 83; Moore v. East Cleveland, supra notes 120-21.

[FN202]. Allgeyer v. Louisiana, 165 U.S. 578 (1897).

[FN203]. Nebbia v. New York, 291 U.S. 502 (1934).

[FN204]. Griswold v. Connecticut, 381 U.S. 479 (1965).

[[FN205]. Poe, 367 U.S. at 541.

[FN206]. Id. at 516 (Douglas, J., dissenting):
When the Framers wrote the Bill of Rights they enshrined in the form
of constitutional guarantees those rights--in part substantive, in
part procedural--which experience indicated were indispensible to a
free society....[T]he constitutional conception of "due process" must,
in my view, include them all until and unless there are amendments
that remove them. That has indeed been the view of a full court of
nine Justices, though the members who make up that court unfortunately
did not sit at the same time.
Justice Douglas's list of Justices who favored full incorporation of
the Bill of Rights named Bradley, Swayne, Field, Clifford, the first
Harlan, Brewer, Black, Murphy, Rutledge, and Douglas. Id. at 516 n.8.

[FN207]. Adams v. Williams, 407 U.S. 143, 149 (1972) (Douglas, J.,
dissenting).

[FN208]. Knapp v. Schweitzer, 357 U.S. 371 (1958).

[FN209]. Id. at 378-79.

[FN210]. Johnson v. Eisentrager, 339 U.S. 763 (1950).

[FN211]. Id. at 765-66.

[FN212]. Id. at 776.

[FN213]. Id. at 782.

[FN214]. Id.

[FN215]. The Fifth Amendment's prohibition on trial by court martial
does not, by its own terms, apply to soldiers in the standing army (or
to militiamen engaged in militia duty).

[FN216]. Id. at 784 (emphasis added).

[FN217]. The characters in the hypothetical are not militia members
either. A militia is an organized force under government control. In
contrast, "guerrilla fighters" or "were-wolves" are small groups or
individuals functioning in enemy territory beyond the reach of any
friendly government. The legal distinction was of great importance
during World War II. Switzerland, for example, made extensive plans
for its militia forces (consisting of almost the entire able-bodied
adult male population) to resist a German invasion to the last man.
But the Swiss government also warned its citizens not to engage in
guerrilla warfare on their own; the militiamen fighting the Germans
would be entitled to the protection of the rules of war and
international conventions, but guerrillas would not. See Stephen
Halbrook, Target Switzerland (1998). Having served as a judge of the
Nuremburg Trials, Justice Jackson was presumably familiar with the
distinctions in the international law of war between guerillas and
soldiers/militia.

[FN218]. During the Civil War, in 1864, an Indiana man Lambdin P.
Milligan was charged with aiding the southern rebellion against the
national government. Although Indiana was under full union control,
and courts in Indiana were functioning, Milligan was tried before a
military court martial and sentenced to death. In 1866, a unanimous
Supreme Court overturned Milligan's conviction, holding that martial
law can only be applied in theaters of war, and not in areas where the
civil courts were functioning. Ex Parte Milligan, 71 U.S. (4 Wall.) 2
(1866).
The Court did not discuss the Second Amendment, but in argument to the
Court, the Attorney General of the United States did. During the
argument before the Court, Milligan's lawyers had claimed that
Congress could never impose martial law. They pointed out that the
Fourth Amendment (no searches without warrants), the Fifth Amendment
(no criminal trials without due process), and the Sixth Amendment
(criminal defendants always have a right to a jury trial) do not
contain any exceptions for wartime.
The Attorney General, who was defending the legality of Milligan's
having been sentenced to death by court martial, retorted that under
conditions of war, the protections of the Bill of Rights do not apply.
Thus, the federal government could disarm a rebel, without violating
his Second Amendment right to keep and bear arms. The Attorney General
urged the Court to construe the Second, Third, Fourth, Fifth and Sixth
Amendments in pari materia:

After war is originated, whether by declaration, invasion, or
insurrection, the whole power of conducting it, as to manner, and as
to all the means and appliances by which war is carried on by
civilized nations, is given to the President. He is the sole judge of
the exigencies, necessities, and duties of the occasion, their extent
and duration.....
Much of the argument on the side of the petitioner will rest,
perhaps, upon certain provisions not in the Constitution itself, and
as originally made, but now seen in the Amendments made in 1789: the
fourth, fifth, and sixth amendments. They may as well be here set out:
4. The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue but upon
probable cause supported by oath or affirmation, and particularly
describing the place to be searched and the persons or things to be
seized.
5. No person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval forces, or in
the militia when in actual service in time of war or public danger;
nor shall any person be subject for the same offence to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private
property be taken for public use without just compensation.
6. In all criminal prosecutions the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed,... and to be
informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance of
counsel for his defence.
In addition to these, there are two preceding amendments which
we may also mention, to wit: the second and third. They are thus:
2. 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.
3. No soldier shall in time of peace be quartered in any house
without the consent of the owner, nor in time of war but in a manner
to be prescribed by law.
It will be argued that the fourth, fifth, and sixth articles,
as above given, are restraints upon the war-making power; but we deny
this. All these amendments are in pari materia, and if either is a
restraint upon the President in carrying on war, in favor of the
citizen, it is difficult to see why all of them are not. Yet will it
be argued that the fifth article would be violated in "depriving if
life, liberty, or property, without due process of law," armed rebels
marching to attack the capital? Or that the fourth would be violated
by searching and seizing the papers and houses of persons in open
insurrection and war against the government? It cannot properly be so
argued, any more than it could be that it was intended by the second
article (declaring that "the right of the people to keep and bear arms
shall not be infringed") to hinder the President from disarming
insurrectionists, rebels, and traitors in arms while he was carrying
on war against them.
These, in truth, are all peace provisions of the Constitution
and, like all other conventional and legislative laws and enactments,
are silent amidst arms, and when the safety of the people becomes the
supreme law.
By the Constitution, as originally adopted, no limitations
were put upon the war-making and war-conducting powers of Congress and
the President; and after discussion, and after the attention of the
country was called to the subject, no other limitation by subsequent
amendment has been made, except by the Third Article, which prescribes
that "no soldier shall be quartered in any house in time of peace
without consent of the owner, or in time of war, except in a manner
prescribed by law."
This, then, is the only expressed constitutional restraint
upon the President as to the manner of carrying on war. There would
seem to be no implied one; on the contrary, while carefully providing
for the privilege of the writ of habeas corpus in time of peace, the
Constitution takes it for granted that it will be suspended "in case
of rebellion or invasion (i. e., in time of war), when the public
safety requires it."
Id. at 29-33.

Thus, the Attorney General explained, the Second Amendment belongs to
individuals, but if a Confederate rebel were disarmed, his Second
Amendment right would not be violated, since the Second Amendment
would not apply to him--even though the Second Amendment has no
explicit exception for wartime. Likewise, if Congress declared martial
law in a region, a civilian would be subjected to a court martial,
rather than trial by jury, even though the Sixth Amendment (which
guarantees jury trials) has no explicit exception for wartime. The
Attorney General plainly saw the Second Amendment as guaranteeing an
individual right.
The United States government also made another argument showing that
the Second Amendment belongs to individuals. On behalf of Milligan,
attorney David Dudley Field had presented a passionate and superb
argument, explaining that the ultimate issue at bar was the supremacy
of the civil power over the military, a principle at the very heart of
Anglo-American liberty and republican government.
Field had made much of the fact that the Fifth Amendment's requirement
that persons could only be tried if they had first been indicted by a
grand jury had an explicit exception for military circumstances
("except in cases arising in the land or naval forces, or in the
militia when in actual service in time of war or public danger").
Field pointed out that Milligan (an Indiana civilian with Confederate
sympathies) was obviously not within the terms of the exception.
In response, the Attorney General turned the argument over to Benjamin
Franklin Butler. A very successful lawyer, Butler had been one of the
most prominent Union Generals during the Civil War; a few months after
his Supreme Court argument, Butler would be elected to Congress from
Massachusetts, and would become one of the leading Radical
Republicans.
Butler told the Supreme Court that the whole Bill of Rights contained
implicit exceptions which were not stated in the text. For example,
despite the literal language of the Fifth Amendment and the Second
Amendment, slaves in antebellum America had been deprived of liberty
without due process and had been forbidden to possess arms:
...the constitution provides that "no person" shall be deprived of
liberty without due process of law. And yet, as we know, whole
generations of people in this land--as many as four millions of them
at one time--people described in the Constitution by this same word,
"persons," have been till lately deprived of liberty ever since the
adoption of the Constitution, without any process of law whatever.
The Constitution provides, also, that no "person's" right to bear arms
shall be infringed; yet these same people, described elsewhere in the
Constitutions as "persons," have been deprived of their arms whenever
they had them."
Id. at 178-79.
Butler's point, presented on behalf of the Attorney General, was that
the right to arms and the right not to be deprived of liberty without
due process were individual rights guaranteed to all "persons." Yet
despite the literal guarantee to all "persons," slaves had been
deprived of their liberty without a fair trial, and had not been
allowed to own or carry guns. Thus, there must an implicit "slavery
exception" in the Second Amendment and the Fifth Amendment. And if
there could be an unstated "slavery exception," there could also be an
unstated "in time of war" exception.
Butler's argument is totally incompatible with the claim that the
Second Amendment right does not belong to individuals. According to
Henigan and Bogus, the Second Amendment can only be violated when the
federal government interferes with state militias. But there were no
federal laws forbidding states to enroll slaves in the state militias.
(The federal Militia Act of 1792 enrolled whites only, but the Act did
not prevent the states from structuring their own militias as they saw
fit.) Although there were no federal law interfering with state
militias, there were state laws forbidding individual blacks to
possess arms. So Butler's argument assumed that the Second Amendment
right to arms inhered in individuals (including slaves, if the
Amendment were read literally, with no implied exception for slavery).

[FN219]. Adamson v. California, 332 U.S. 46, 48 (1947).

[FN220]. U.S. Const. amend. V.

[FN221]. Adamson, 332 U.S. at 58-59. (Adamson was overruled by the
Supreme Court in the 1964 decision Malloy v. Hogan, infra note 183).

[FN222]. U.S. Const. amend. XIV.

[FN223]. Adamson, 332 U.S. at 70-71 (Black, J., dissenting).

[FN224]. Id. at 92-124.

[FN225]. Id. at 93 (citing Cong. Globe, 39th Cong., 1st Sess. (1865)
474).

[FN226]. Id. (citing Cong. Globe, 39th Cong., 1st Sess. (1865) 474).

[FN227]. Id. at 104-07 (emphasis added).

[FN228]. Id. at 119 (emphasis added).

[FN229]. Id. at 120.

[FN230]. Id. at 124 (Murphy, J., dissenting).

[FN231]. Supra note 228.

[FN232]. Id. at 73.

[FN233]. Id. at 74.

[FN234]. Id. at 76.

[FN235]. Id. at 77.

[FN236]. Stephen Halbrook cites the case, but for another point. See
Stephen Halbrook, Firearms Law Deskbook, supra note 106, at 8-44
n.131.

[FN237]. Hamilton v. Regents of the Univ. of California, 293 U.S. 245
(1934).

[FN238]. Id. at 250-51.

[FN239]. Id. at 260-61.

[FN240]. For a discussion of this point, see Glenn Harlan Reynolds &
Don B. Kates, The Second Amendment and States' Rights: A Thought
Experiment, supra note 7.

[FN241]. Hamilton, 293 U.S. at 260.

[FN242]. Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820). See infra text
at notes 343-53.

[FN243]. Id.

[FN244]. Id. at 16-17.

[FN245]. Dunne v. People, 94 Ill. 120 (1879).

[FN246]. The court was quoting language from Article I, Section 8 of
the Constitution, which gives such authority to Congress. This grant
is not inconsistent with pre-existent state authority, so long as the
state authority is not used in conflict with the federal authority.

[FN247]. Dunne, 94 Ill. at 132-33.

[FN248]. Martin v. Mott, 25 U.S. 19 (1827).

[FN249]. Infra notes 343-53.

[FN250]. Infra notes 310-20.

[FN251]. Infra notes 251-56.

[FN252]. United States v. Schwimmer, 279 U.S. 644 (1929).

[FN253]. Id. at 652-53.

[FN254]. Id. at 650-52.

[FN255]. United States v. Muscarello, 524 U.S. 125 (1998) (Ginsburg,
J., dissenting), supra text at note 57.

[FN256]. See, e.g., sources cited at supra note 6.

[FN257]. See, e.g., Glenn Harlan Reynolds, A Critical Guide to the
Second Amendment, supra note 8.

[FN258]. Stearns v. Wood, 236 U.S. 75 (1915).

[FN259]. Id. at 76. Colonel would be the next rank up.

[FN260]. Id. at 78.

[FN261]. Id.

[FN262]. Id.

[FN263]. Salina v. Blaksley, 83 P. 619 (Kan. 1905).

[FN264]. Twining v. New Jersey, 211 U.S. 78 (1908)(overruled by Malloy
v. Hogan, 378 U.S. 1 (1964).

[FN265]. Id. at 98-99.

[FN266]. Maxwell v. Dow, 176 U.S. 581 (1899).

[FN267]. Id. at 597.

[FN268]. The war led to the development of the Colt .45 self-loading
pistols, since smaller pistol rounds often had insufficient stopping
power against the Filipino warriors.

[FN269]. Trono v. United States, 199 U.S. 521 (1905).

[FN270]. Kepner v. United States, 195 U.S. 100 (1904).

[FN271]. Trono, 199 U.S. at 528.

[FN272]. Id.

[FN273]. 32 Stat. 691 (1902).

[FN274]. Trono, 199 U.S. at 528.

[FN275]. Id.

[FN276]. See id.

[FN277]. Kepner, 195 U.S. at 123-24.

[FN278]. Id. They are the familiar language of the Bill of Rights,
slightly changed in form, but not in substance, as found in the first
nine amendments to the Constitution of the United States, with the
omission of the provision preserving the right of trial by jury and
the right of the people to bear arms, and adding the prohibition of
the 13th Amendment against slavery or involuntary servitude except as
punishment for crime, and that of Article I, Section 9, to the passage
of bills of attainder and ex post facto laws.

[FN279]. Robertson v. Baldwin, 165 U.S. 275, 277 (1897).

[FN280]. Id. at 281.

[FN281]. Id. at 281-82.

[FN282]. Id. at 282.

[FN283]. See, e.g., State v. Workman, 35 W. Va. 367 (1891). See
generally, Kopel, The Second Amendment in the Nineteenth Century,
supra note 9; Cramer, For the Defense of Themselves and the State,
supra note 9.

[FN284]. Brown v. Walker, 161 U.S. 591 (1896).

[FN285]. The Presser case, discussed infra at notes 310-20, appears in
the Justice Brown's majority opinion, as part of a string cite for the
proposition, "the first eight amendments are limitations only upon the
powers of congress and the federal courts, and are not applicable to
the several states, except so far as the fourteenth amendment may have
made them applicable." Id. at 606.

[FN286]. Id. at 631 (Field, J., dissenting).

[FN287]. Id. at 632.

[FN288]. Id. at 635.

[FN289]. Id. (emphases added).

[FN290]. Henigan, Guns and the Constitution, supra note 4.

[FN291]. Miller v. Texas, 153 U.S. 535 (1894).

[FN292]. Id. at 538.

[FN293]. Id. at 539.

[FN294]. Robertson, 165 U.S. at 281-82, supra text at notes 280-82.

[FN295]. Id. at 538.

[FN296]. Id.

[FN297]. Miller, 153 U.S. at 538.

[FN298]. Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897)
(takings clause).

[FN299]. Spies v. Illinois, 123 U.S. 131 (1887). See generally Paul
Avrich, The Haymarket Tragedy (1986).

[FN300]. John Randolph Tucker, The Constitution of the United States
(Fred B. Rothman & Co. 1981) (1899); William G. Bean, John Randolph
Tucker, in The Dictionary of American Biography (CD-Rom ed. 1997).

[FN301]. I hold the privilege and immunity of a citizen of the United
States to be such as have their recognition in or guaranty from the
Constitution of the United States. Take then the declared object of
the Preamble, "to secure the blessings of liberty to ourselves and our
posterity," we ordain this Constitution--that is, we grant powers,
declare rights, and create a Union of States. See the provisions as to
personal liberty in the States guarded by provision as to ex post
facto laws, &c.; as to contract rights--against States' power to
impair them, and as to legal tender; the security for habeas corpus;
the limits imposed on Federal power in the Amendments and in the
original Constitution as to trial by jury, &c.; the Declaration of
Rights--the privilege of freedom of speech and press--of peaceable
assemblages of the people--of keeping and bearing arms--of immunity
from search and seizure--immunity from self-accusation, from second
trial--and privilege of trial by due process of law. In these last we
find the privileges and immunities secured to the citizen by the
Constitution. It may have been that the States did not secure them to
all men. It is true that they did not. Being secured by the
Constitution of the United States to all, when they were not, and were
not required to be, secured by every State, they are, as said in the
Slaughter-House Cases, privileges and immunities of citizens of the
United States.
The position I take is this: Though originally the first ten
Amendments were adopted as limitations on Federal power, yet in so far
as they secure and recognize fundamental rights--common law rights--of
the man, they make them privileges and immunities of the man as
citizen of the United States, and cannot now be abridged by a State
under the Fourteenth Amendment. In other words, while the ten
Amendments, as limitations on power, only apply to the Federal
government, and not to the States, yet in so far as they declare or
recognize rights of persons, these rights are theirs, as citizens of
the United States, and the Fourteenth Amendment as to such rights
limits state power, as the ten Amendments had limited Federal power.

[FN302]. Id.

[FN303]. Id.

[FN304]. Spies, 123 U.S. at 166.

[FN305]. Eilenbecker v. District Court of Plymouth County, 134 U.S.
131 (1890):
The first three of these assignments of error, as we have stated them,
being the first and second and fourth of the assignments as numbered
in the brief of the plaintiffs in error, are disposed of at once by
the principle often decided by this court, that the first eight
articles of the amendments to the Constitution have reference to
powers exercised by the government of the United States and not to
those of the States. Livingston v. Moore, 7 Pet. 469; The Justices v.
Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; United States
v. Cruikshank, 92 U.S. 542; Walker v. Sauvinet, 92 U.S. 90; Fox v.
Ohio, 5 How. 410; Holmes v. Jennison, 14 Pet. 540; Presser v.
Illinois, 116 U.S. 252.

[FN306]. Spies, 123 U.S. at 168.

[FN307]. During the nineteenth century, the official Supreme Court
reports included summaries of counsels' arguments. Besides Tucker's
argument in Spies, there are two other nineteenth century cases which
record use by counsel of the Second Amendment; both uses were by the
Attorney General's office, and both regarded the Second Amendment as
an individual right. In the argument for In re Rapier, Assistant
Attorney General Maury defended a federal ban on the mailing of
lottery tickets: "Freedom of the press, like freedom of speech, and
'the right to keep and bear arms,' admits of and requires regulation,
which is the law of liberty that prevents these rights from running
into license." In re Rapier, 143 U.S. 110, 131 (1892). The other
argument came from the Attorney General in Ex Parte Milligan. Ex Parte
Milligan, 71 U.S. (4 Wall.) 2 (1866); supra note 217.

[FN308]. Logan v. United States, 144 U.S. 263, 281-82 (1892).

[FN309]. Id. at 285-86.

[FN310]. Id. at 286-88.

[FN311]. See Levinson, supra note 9; Stephen Halbrook, The Right of
Workers to Assemble and to Bear Arms: Presser v. Illinois, Last
Holdout Against Application of the Bill of Rights to the States, 76 U.
Det. Mercy L. Rev. (1999, forthcoming).

[FN312]. Presser v. Illinois, 116 U.S. 252, 265 (1886).

[FN313]. 1 William Hawkins, A Treatise of the Pleas of the Crown 126
(Garland Publ. 1978) (1716) (A Justice of the Peace may require surety
from persons who "go about with unusual Weapons or Attendants, to the
Terror of the People.")

[FN314]. Presser, 116 U.S. at 265.

[FN315]. Id. at 266.

[FN316]. Id.

[FN317]. U.S. Const., amend. XIV, § 1.

[FN318]. E.g., Fresno Rifle Club v. Van de Kamp, 965 F.2d 723 (9th
Cir. 1992).

[FN319]. Id. at 265.

[FN320]. Id. at 265-66.

[FN321]. Id. For the subsequent interpretation of Presser, see Malloy
v. Hogan, supra note 184 (Second Amendment is not a Fourteenth
Amendment Privilege or Immunity); Poe v. Ullman, supra note 204
(Harlan, J., dissenting) (Fourteenth Amendment liberty is not
co-extensive with Bill of Rights); Adamson v. California, supra note
222 (Black, J., dissenting) (Second Amendment not directly applicable
against states); Twining v. New Jersey, supra note 264 (Second
Amendment not a Fourteenth Amendment Privilege or Immunity); Maxwell
v. Dow, supra note 266 (Second Amendment not directly applicable to
states); Brown v. Walker, supra note 284 (same); Miller v. Texas,
supra notes 291-96 (Second Amendment not directly applicable, not a
Privilege or Immunity) but enforcement against states via Fourteenth
Amendment is an open question; Spies v. Illinois, supra note 303
(Second Amendment not directly applicable against states);
Eilenbecker, supra note 304 (same).

[FN322]. 16 Stat. 140 § 6 (1870); 18 U.S.C. §§ 241, 242: "That if two
or more persons shall band or conspire together, or go in disguise
upon the public highway, or upon the premises of another...or
intimidate any citizen with intent to prevent or hinder his free
exercise and enjoyment of any right or privilege secured or granted
him by the Constitution or laws of the United States...."

[FN323]. Stephen Halbrook, Freedmen, Firearms, and the Fourteenth
Amendment (1998); Eric Foner, Reconstruction 258-59 (1988); Richard L.
Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103
Yale L.J. 57 (1993).

[FN324]. George C. Rable, But There Was No Peace: The Role of Violence
in the Politics of Reconstruction 125-29 (Athens Univ. of Georgia Pr.,
1984).

[FN325]. United States v. Cruikshank, 92 U.S. 542, 551 (1875)
(emphasis added).

[FN326]. Id. at 553 quoting New York v. Miln, 36 U.S. (11 Pet.) 125,
139 (1837). Cf. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 92, 13 Am.
Dec. 251, 253 ("The right [to arms in the Kentucky Constitution]
existed at the adoption of the constitution; it had no limits short of
the moral power of the citizens to exercise it, and it in fact
consisted in nothing else but the liberty of the citizens to bear
arms.").

[FN327]. "The Second Amendment protects only the right of the states
to maintain and equip a militia and does not guarantee individuals the
right to bear arms; United States v. Cruikshank (1875)." C. Herman
Pritchett, The American Constitution 397 n. 1 (2d ed. McGraw-Hill,
1968).

[FN328]. Malloy v. Hogan, supra note 186; Knapp v. Schweitzer, supra
note 208. For different interpretations of Cruiksbank, see Spies v.
Illinois, supra note 303 (Second Amendment not directly applicable to
states); Eilenbecker, supra note 304 (same); Logon v. United States,
supra note 309 (First Amendment assembly right and Second Amendment
arms right are similar; Bill of Rights protects neither against
private interference).

[FN329]. DeJonge v. Oregon, 299 U.S. 353 (1937).

[FN330]. Scott v. Sandford, 60 U.S. (19 How.) 393 (1856). Among Chief
Justice Taney's proofs that free blacks were not citizens was the fact
that blacks were often excluded from militia service. The Taney
opinion explained that the parties to the original American social
compact were only those "who, at that time [American independence],
were recognized as the people or citizens of a State, whose rights and
liberties had been outraged by the English Government; and who
declared their independence, and assumed the powers of Government to
defend their rights by force of arms." Id. at 407. The new nation's
federal militia law of 1792 had enrolled only free white males in the
militia of the United States, and blacks had been excluded from the
New Hampshire militia. Id. at 420. These facts suggested to Chief
Justice Taney that free blacks were not recognized as citizens, since
they were not in the militia.
Justice Curtis retorted by pointing to the language of the 1792
Militia Act, which enrolled "every free, able-bodied, white male
citizen." Justice Curtis pointed out the implication of the language
that "citizens" included people who were not able-bodied, were not
male, or were not white; otherwise, there would have been no need to
limit militia membership of able-bodied white males. Id. at 442
(Curtis, J., dissenting). But Justice Curtis's argument had one
problem: the use of the word "free" in the Militia Act. It was
undisputed that slaves were not citizens, since they were deprived of
all rights of citizenship. The Militia Act enrolled only "free,
able-bodied, white male citizens." If we follow Justice Curtis's logic
to conclude that the Militia Act proves that non-whites could be
citizens, then the same logic would show that unfree persons could be
citizens.
The stronger part of the Curtis dissent was his evidence showing that
many of the thirteen original states did recognize blacks as citizens.
The Taney majority never directly addressed this part of the Curtis
argument, except by listing various disabilities (such as prohibitions
on racial intermarriage, or bans on operating schools for blacks)
which even anti-slavery states like Massachusetts and Connecticut
imposed on free blacks. Thus, in a bizarre way, the Taney majority
(despite its pro-slavery taint) pre-figures twentieth century Supreme
Court jurisprudence that there can be no second-class citizens in the
United States. The Curtis opinion argues that various civil
disabilities (including exclusion from the militia) are consistent
with citizenship. For the Taney majority, citizenship is all or
nothing; exclusion from education, from intermarriage with whites, or
from the militia are all incompatible with citizenship. Thus, once a
constitutional amendment conclusively declared that blacks are
citizens, the logic of the Dred Scott majority leads to the results in
Brown v. Board, 349 U.S. 294 (1955) (racial discrimination in
schooling is incompatible with citizenship rights); Loving v.
Virginia, 388 U.S. 1 (1967) (laws against intermarriage are
incompatible with citizenship rights); and Bell v. Maryland, 378 U.S.
226, 260 (1964) (segregation in restaurants and lunch counters "is a
badge of second-class citizenship."); Id at 288 (Douglas, J.,
concurring) ("The Thirteenth, Fourteenth, and Fifteenth Amendments do
not permit Negroes to be considered as second-class citizens in any
aspect of our public life."). In contrast, the Curtis dissent (while
laudably humane in its anti-slavery sentiments) allows for
second-class citizenship on the basis of race.

[FN331]. Id. at 417.

[FN332]. Id.

[FN333]. See, e.g., Edwards v. California, 314 U.S. 160, 168 (1941)
(Douglas, J., concurring); Slaughter-House Cases, 83 U.S. (16 Wall.)
36, 79 (1873).

[FN334]. Scott, 60 U.S. at 417.

[FN335]. Act of Mar. 6, 1820, ch. 22, 8, 3 Stat. 545, 548.

[FN336]. Scott, 60 U.S. at 450.

[FN337]. Id. at 450-51.

[FN338]. Id. at 399.

[FN339]. See, e.g., Stephen Douglas, The Dividing Line Between Federal
and Local Authority: Popular Sovereignty in the Territories, Harper's
(Sept. 1859) 519, 530.

[FN340]. U.S. Const., amend. XIV, § 1 ("All persons born or
naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the Untied States and of the State wherein
they reside.")

[FN341]. Dorr v. United States, 195 U.S. 138 (1904); Hawaii v.
Mankichi, 190 U.S. 197 (1903) (Sixth Amendment requirement for
unanimous jury not applicable in territory of Hawaii; only
"fundamental" constitutional rights apply in the territories); De Lima
v. Bidwell 182 U.S. 1 (1901) (Puerto Rican goods imported to the
states are not subject to the tariff applicable to foreign imports);
Dooley v. United States, 182 U.S. 222 (1901) (goods transported from
the states to Puerto Rico not subject to tariff applicable to foreign
imports to Puerto Rico); Downes v. Bidwell, 182 U.S. 244 (1901) (In
taxing imports from Puerto Rico to the states, Congress need not obey
the constitutional requirement that taxes imposed by Congress be
uniform throughout the United States).

[FN342]. Downes, 182 U.S. at 379 (Harlan, J., dissenting).

[FN343]. Richard Warren Barkley, letter of May 28, 1901, to John
Marshall Harlan, quoted in Tinsley E. Yarborough, Judicial Enigma: The
First Justice Harlan 197 (1995)

[FN344]. Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820).

[FN345]. "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."

[FN346]. Houston, 18 U.S. at 6.

[FN347]. U.S. Const. amend. X.

[FN348]. Houston, 18 U.S.at 46-47.

[FN349]. Id.

[FN350]. Id.

[FN351]. This was the only time that Justice Story dissented from a
constitutional decision in which Chief Justice Marshall was in the
majority. James McClellan, Joseph Story and the American Constitution
311 n. 161 (2d ed. 1990).

[FN352]. Houston, 18 U.S. at 46-47.

[FN353]. Id. at 47-48 (Story, J., dissenting)..

[FN354]. The Supreme Court decided one other militia case during this
period. Writing for a unanimous Court, Justice Story held that the
President's determination of the need for a militia call-out was not
subject to judicial review. See Martin v. Mott, 25 U.S. (12 Wheat.) 19
(1827).

[FN355]. Joseph Story, A Familiar Exposition of the Constitution of
the United States 264-65 (1842) For more on Justice Story's thoughts
about the Second Amendment, see Kopel, The Second Amendment in the
Nineteenth Century, supra note 4, at 119-20.

[FN356]. See, e.g., Henigan, Arms, Anarchy, supra note 5.

[FN357]. See Kopel, The Second Amendment in the Nineteenth Century,
supra note 7, at 1388-97.

[FN358]. United States v. Miller, 307 U.S. 174 (1939), supra notes
16-27.

[FN359]. Adams v. Williams, 407 U.S. 143, 150-51 (1972) (Douglas, J.,
dissenting), supra note 141.

[FN360]. Lewis v. United States, 445 U.S. 55, 65-66 (1980), supra note
103.

[FN361]. Hamilton v. Regents of the Univ. of California, 293 U.S. 245,
260-61 (1934), supra note 238.

[FN362]. United States v. Schwimmer, 279 U.S. 644, 650-52 (1929),
supra note 253.

[FN363]. Burton v. Sills, 394 U.S. 812 (1969), supra note 170.

[FN364]. Laird v. Tatum, 408 U.S. 1, 22-23 (1972), supra note 163.

[FN365]. Spencer v. Kemna, 523 U.S. 1, 36 (1998) (Stevens, J.,
dissenting), supra note 42.

[FN366]. Moore v. East Cleveland, 431 U.S. 494, 502 (1976), supra note
120.

[FN367]. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 47-48 (1820) (Story,
J., dissenting), supra note 352.

[FN368]. See Story, supra note 354.

[FN369]. Printz v. United States, 521 U.S. 898, 938-39 (1997) (Thomas,
J., concurring), supra note 64.

[FN370]. Justice Black did view the entire Bill of Rights as absolute
within it terms. He explicitly so stated with regard to the Second
Amendment in his James Madison lecture at New York University. It
might be reasonable to read Justice Black's Supreme Court opinions
which mention the Second Amendment as reflecting his absolutist view.
See supra text at notes 179-82, 194-96, 221- 34.

[FN371]. Supra note 3.
Ed Huntress
2007-11-22 19:45:08 UTC
Permalink
Post by Gunner
On Wed, 21 Nov 2007 23:40:20 -0800 (PST), Too_Many_Tools
Post by Too_Many_Tools
FYI...there is no standing ruling that says that personal firearm
ownership is legal.
TMT
Its not surprising that someone who blithers the term "pro gun nut" is
so often wrong....
THE SUPREME COURT'S THIRTY-FIVE
WHAT THE SUPREME COURT HAS SAID
ABOUT THE SECOND AMENDMENT
David B. Kopel [FNa1]
Saint Louis University Public Law Review
1999
Symposium, Gun Control
*99
Copyright © 1999 St. Louis University School of Law; DAVID B. KOPEL
Among legal scholars, it is undisputed that the Supreme Court has
said almost nothing about the Second Amendment. [FN1] This article
suggests that the Court has not been so silent as the conventional
wisdom suggests.
That was 44,000 words of dicta, borrowed references, and irrelevant asides.
Many of them are so peripheral that one wonders if Kopel was being paid by
the word.

As Kopel himself says, buried deep within his presentation and hardly
noticed by the gun nutz who have quoted from it over the years:

<snip>
Post by Gunner
The neglected cases are not, of course, directly about the Second
Amendment. Rather, they are about other issues, and the Second
Amendment appears as part of an argument intended to make a point
about something else. [FN29] Nevertheless, all the dicta may be
revealing.
In other words, none of it directly addresses the meaning of the 2nd
Amendment. That's what constitutional scholars mean when they say that the
Supreme Court has not made a 2nd Amendment decision since 1939, and even
that one, which Kopel acknowledges can be read either way, has not left us
with a precedent that makes the case one way or the other on the issue of
individual versus collective (state) rights.

But it's true that TMT's statement is not to the point. Neither is yours.
Kopel draws no conclusion that this mountain of obiter dicta amounts to a
"ruling" that "personal firearm ownership is legal." The Court hasn't
addressed the issue in an uncompromised way, except as dicta, which has no
weight as precedent.

So your 44,000 words of spew is irrelevant to the question. peripheral to
the constitutional issue, and amounts to nothing more than Kopel indulging
his habit of going to voluminous lengths to argue some peripheral, often
trivial, point.

BTW, yes, I did read it, around six or seven years ago. That's how I was
able to zero in on the "not directly about the Second..." quote. Now, having
spotted it when I used to take Kopel seriously, it sticks out like a sore
thumb.

--
Ed Huntress
Gunner
2007-11-22 18:36:26 UTC
Permalink
On Wed, 21 Nov 2007 21:47:22 -0800 (PST), Too_Many_Tools
Post by Too_Many_Tools
I see alot of dreaming here about the results the pro gun nuts want.
Pro gun nuts?

So then..there are "free speech nuts"?

Gunner
Martin H. Eastburn
2007-11-23 04:12:14 UTC
Permalink
The patriot act was voted on by all. Only 1 person voted no.
So the commie from NH was it - is the only Democrat like they are today ?

Martin
Martin H. Eastburn
@ home at Lions' Lair with our computer lionslair at consolidated dot net
TSRA, Life; NRA LOH & Patron Member, Golden Eagle, Patriot's Medal.
NRA Second Amendment Task Force Charter Founder
IHMSA and NRA Metallic Silhouette maker & member.
http://lufkinced.com/
Post by Too_Many_Tools
Post by Ed Huntress
Post by Tom Gardner
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case,
and it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since
Miller in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=...
--
Ed Huntress
I'm anxious to see how the politics will roll. I know too many Democrats
at the local range that I don' think it will be split on party lines.
The early take is that it will make things tough for Democrats either way,
coming in an election year. If the Court finds for an individual right, Dems
will be pressed by the left to promise some effort to effectively overturn
it. If the Court finds against it, it probably will energize the right at
the national level.
However, we may find, as you suggest, that it won't be a straight party-line
split because the pressure on both sides will come mainly from the wings.
Stay tuned.
--
Ed Huntress- Hide quoted text -
- Show quoted text -
I see alot of dreaming here about the results the pro gun nuts want.
What if the Court says "NO"?
Ready to give up your guns?
I am not.
You may have to.
Remember the Republican Patriot Act?
TMT
John
2007-11-21 01:27:06 UTC
Permalink
Post by Tom Gardner
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=1195707600&en=1630cb299835ac16&ei=5087%0A
--
Ed Huntress
I'm anxious to see how the politics will roll. I know too many Democrats at
the local range that I don' think it will be split on party lines.
The govenor "fast eddie" Rendall (PA)got slapped down today with his
one handgun a month bill. He is worried about crime in philadelphia and
the cop that got killed... the killer was let out early from jail and
that was the reason the cop got shot, not legally bought handguns.

John
Wes
2007-11-21 15:04:33 UTC
Permalink
Post by John
Post by Tom Gardner
I'm anxious to see how the politics will roll. I know too many Democrats at
the local range that I don' think it will be split on party lines.
The govenor "fast eddie" Rendall (PA)got slapped down today with his
one handgun a month bill. He is worried about crime in philadelphia and
the cop that got killed... the killer was let out early from jail and
that was the reason the cop got shot, not legally bought handguns.
John,

You have my sympathies. Pennsylvania would be an awesome state w/o your
metropolitan areas. I've driven through it many a time in my younger days.

Wes
Doug Miller
2007-11-21 17:56:25 UTC
Permalink
Post by Wes
John,
You have my sympathies. Pennsylvania would be an awesome state w/o your
metropolitan areas. I've driven through it many a time in my younger days.
Actually, in my opinion, w/o just that one large metro area at the east end.
Pittsburgh's really a pretty nice place.
--
Regards,
Doug Miller (alphageek at milmac dot com)

It's time to throw all their damned tea in the harbor again.
Wes
2007-11-21 19:35:33 UTC
Permalink
Post by Doug Miller
Actually, in my opinion, w/o just that one large metro area at the east end.
Pittsburgh's really a pretty nice place.
Is there any steel industry left there?

Wes
Doug Miller
2007-11-21 20:54:09 UTC
Permalink
Post by Wes
Post by Doug Miller
Actually, in my opinion, w/o just that one large metro area at the east end.
Pittsburgh's really a pretty nice place.
Is there any steel industry left there?
There sure didn't seem to be much when I was there on a business trip in the
1990s. Lots of financial services, though.

Several things impressed me.

Pittsburgh has (or had then) by far the cleanest subway that I've ever seen.
No graffiti visible anywhere. The stations are clean, brightly lit, and well
marked. The trains are quiet. And they run _on_time_. Get there thirty seconds
late, and you missed it -- but not to worry, because there's another one in
less than ten minutes.

The air is cleaner -- much cleaner -- than in Chicago, New York, or LA.

There didn't seem to be major traffic problems, probably due to people
actually driving reasonably (in stark contrast to, say, Boston).

But the main thing that stood out was the people: Pittsburgh's a friendly
place.
--
Regards,
Doug Miller (alphageek at milmac dot com)

It's time to throw all their damned tea in the harbor again.
Fitch R. Williams
2007-11-21 21:24:54 UTC
Permalink
Post by Wes
John,
You have my sympathies. Pennsylvania would be an awesome state w/o your
metropolitan areas. I've driven through it many a time in my younger days.
Wes
Pennsylvania is an awesome state. Nedra and I are really enjoying it
here. There is just enough winter to make it fun (we live in the mud
belt), spring and fall are wonderful, and the summers aren't so hot as
to be unbearable. The hunting is quite good, I belong to two really
good shooting clubs, one is 30 minutes away on back roads, the other is
40 minutes away just a couple of minutes off 81 South (exit 14).

There are trails to ride our horses on, and all those nice people. There
are a lot of nice folks here. Easy to talk to, although I get starved
for conversations like my co-workers and I used to have. But that isn't
going to happen here unless they visit.

That said, anyone coming here who was born and raised in California is
in for one heck of a culture shock. Dispite all the bad mouthing it
gets, there are some things about the culture in CA that are excellent.
Our youngest daughter (31) is having a hard time adapting to Appalacia.
She works for a really good engineering firm, loves the work and the
opportunities, but the narrow minded culture is driving her up a tree.

Oh well, Nedra and I aren't going anyplace. We love it here.

Fitch <former Michigan Farm Boy> Williams
Bob Miller
2007-11-22 15:58:08 UTC
Permalink
Fitch R Williams said:
"Pennsylvania is an awesome state. Nedra and I are really enjoying it
here. "

Good to see you still read this group and are doing well.

Welcome to PA and glad you like it. In the traveling I have done I
have been in many states and still prefer Pa for the all around hunting
and fishing as well as other sports and its easy day trips to the
Atlantic shores.

Bob
Ed Huntress
2007-11-22 18:19:03 UTC
Permalink
Post by Bob Miller
"Pennsylvania is an awesome state. Nedra and I are really enjoying it
here. "
Good to see you still read this group and are doing well.
Welcome to PA and glad you like it. In the traveling I have done I have
been in many states and still prefer Pa for the all around hunting and
fishing as well as other sports and its easy day trips to the Atlantic
shores.
And that works both ways. I'm six miles from Raritan Bay, and I go to PA for
easy day trips to some great trout fishing, camping and canoeing. I used to
hunt there, too -- in fact, I lived there -- and I consider it to be an
underappreciated place for people who love the outdoors.

--
Ed Huntress
Larry Jaques
2007-11-21 02:22:27 UTC
Permalink
On Tue, 20 Nov 2007 16:34:55 -0500, with neither quill nor qualm, "Ed
Post by Ed Huntress
OK, all the anti-OT posters can heap on the abuse, but many will be
interested: the Supreme Court has decided to hear the DC gun-ban case, and
it will almost certainly hinge on a 2nd Amendment decision.
This will be the first 2nd Amendment case the Court has heard since Miller
in 1939.
http://www.nytimes.com/2007/11/20/washington/20cnd-scotus.html?em&ex=1195707600&en=1630cb299835ac16&ei=5087%0A
Let's hope the attorneys don't screw it up as badly as they did with
Miller, eh? <big sigh> Cross all your appendages, boys.
--
"Given the low level of competence among politicians,
every American should become a Libertarian."
-- Charley Reese, Alameda Times-Star (California), June 17, 2003
S***@yahoo.com
2007-11-21 03:11:16 UTC
Permalink
Larry Jaques wrote:
[...]
Post by Larry Jaques
Let's hope the attorneys don't screw it up as badly as they did with
Miller, eh? <big sigh> Cross all your appendages, boys.
I guess that Mr. Gura will show up ( http://www.gurapossessky.com/news/parker/pleadings.html
). That alone will give him a big advantage over Miller's lawyers. It
can't hurt that his defendant(s) (Parker, et al. is still up in the
air) aren't bootleggers and bank robbers, either. Even if the Supremes
remand the case to the lower court, as in Miller, I'll bet that these
folks will stick with it. To be fair, Mr.Miller had a pretty good
excuse for not attending his subsequent lower court trial.
S***@yahoo.com
2007-11-21 03:33:03 UTC
Permalink
SL8_78 wrote:
[...]
That alone will give him a big advantage over Miller's lawyers. It
can't hurt that his defendant(s) ...
Sorry, should be "appellant(s)", not "defendant(s)".
Gunner
2007-11-21 18:49:38 UTC
Permalink
Post by S***@yahoo.com
[...]
Post by Larry Jaques
Let's hope the attorneys don't screw it up as badly as they did with
Miller, eh? <big sigh> Cross all your appendages, boys.
I guess that Mr. Gura will show up ( http://www.gurapossessky.com/news/parker/pleadings.html
). That alone will give him a big advantage over Miller's lawyers. It
can't hurt that his defendant(s) (Parker, et al. is still up in the
air) aren't bootleggers and bank robbers, either. Even if the Supremes
remand the case to the lower court, as in Miller, I'll bet that these
folks will stick with it. To be fair, Mr.Miller had a pretty good
excuse for not attending his subsequent lower court trial.
Its also fascinating to note that the individual who brought this
about..was a woman who sued DC for preventing her from owning a
handgun. A very pretty black woman.

Gunner
Steven E. Eyrse
2007-11-21 07:37:44 UTC
Permalink
It will be interesting for both the country and those who live in the
" Well God Dam Right I can carry a gun!" states. I have tried to
understand this article many times and the only conclusion I can come
to …. Now remember I'm just a citizen of this country and trying to
understand what the laws I have to live by mean.

If you're a member of a militia AKA: National Guard, Posse, or other
legally appointed law enforcement group you get your gun. If your not
you much abide by what ever strange and stupid rules the town, city,
county, state you live in have made. Even ones that say " YOU CAN'T
HAVE A GUN ! " I really don't see how any other interoperation works.
Our forefathers were ineptly clear on this and many other topics with
in the Constitution.

Go for it.

Steve E.
Doug Miller
2007-11-21 13:23:22 UTC
Permalink
Post by Steven E. Eyrse
If you're a member of a militia AKA: National Guard, Posse, or other
legally appointed law enforcement group you get your gun. If your not
you much abide by what ever strange and stupid rules the town, city,
county, state you live in have made. Even ones that say " YOU CAN'T
HAVE A GUN ! " I really don't see how any other interoperation works.
Try these:

"What is the militia? It is the whole People." [George Mason]
"No free man shall ever be debarred the use of arms." [Thomas Jefferson]
--
Regards,
Doug Miller (alphageek at milmac dot com)

It's time to throw all their damned tea in the harbor again.
nick hull
2007-11-21 18:26:09 UTC
Permalink
Post by Doug Miller
"No free man shall ever be debarred the use of arms." [Thomas Jefferson]
Not a problem, the govt can simply declare we are not free ;)

Free men own guns - www(dot)geocities(dot)com/CapitolHill/5357/
Wes
2007-11-21 19:38:45 UTC
Permalink
Post by nick hull
Not a problem, the govt can simply declare we are not free ;)
Can you build a house with out a permit?
Own land w/o constant payment of annual taxes?
Run a business on your own terms?
...

We are not free, we gave that up.

Wes
nick hull
2007-11-22 17:17:46 UTC
Permalink
Post by Wes
Post by nick hull
Not a problem, the govt can simply declare we are not free ;)
Can you build a house with out a permit?
I did ;)
Post by Wes
Own land w/o constant payment of annual taxes?
Churches do
Post by Wes
Run a business on your own terms?
My terms are underground ;)
Post by Wes
...
We are not free, we gave that up.
Wes
MOST are not free, some still are ;)

Free men own guns - www(dot)geocities(dot)com/CapitolHill/5357/
Steven E. Eyrse
2007-11-23 02:22:51 UTC
Permalink
It would seem that the following would have the biggest baring upon
this topic. It will be interesting to see if it broujght up in court.


There is a long history of militia in the United States, starting
during the colonial era, with the colonial militias drawn from the
body of adult male citizens of a community, town, or local region.
Colonial militia served a vital role in the French and Indian Wars and
to a lesser extent the United States Revolutionary War.

Militia service shifted from colonial control to state control with
the creation of the United States in 1776. Regulation of the militia
was codified by the Second Continental Congress with the Articles of
Confederation, in conjunction with the creation of a regular army.

With the Constitutional Convention of 1787 and Article 1 Section 8 of
the United States Constitution, control of the army and the power to
direct the militia of the states was concurrently delegated to the
federal Congress.[26] The Militia Clauses gave Congress authority for
"organizing, arming, and disciplining" the militia, and "governing
such Part of them as may be employed in the Service of the United
States", with the States retaining authority to appoint officers and
to impose the training specified by Congress.

Proponents describe a key element in the concept of "militia" was that
to be "genuine" it not be a "select militia", composed of an
unrepresentative subset of the population. This was an argument
presented in the ratification debates.[27]

To ensure that the militia could not be disarmed, a right of the
people to keep and bear arms was recognized in the Second
Amendment.[28]

The first legislation on the subject was The Militia Act of 1792 which
provided, in part:

That each and every free able-bodied white male citizen of the
respective States, resident therein, who is or shall be of age of
eighteen years, and under the age of forty-five years (except as is
herein after excepted) shall severally and respectively be enrolled in
the militia, ... every citizen, so enrolled and notified, shall,
within six months thereafter, provide himself with a good musket or
firelock....


Thus citizens not only COULD have guns but were REQUIRED to.

Steve E.
Post by Doug Miller
Post by Steven E. Eyrse
If you're a member of a militia AKA: National Guard, Posse, or other
legally appointed law enforcement group you get your gun. If your not
you much abide by what ever strange and stupid rules the town, city,
county, state you live in have made. Even ones that say " YOU CAN'T
HAVE A GUN ! " I really don't see how any other interoperation works.
"What is the militia? It is the whole People." [George Mason]
"No free man shall ever be debarred the use of arms." [Thomas Jefferson]
Dave Hinz
2007-11-21 14:13:21 UTC
Permalink
Post by Steven E. Eyrse
If you're a member of a militia AKA: National Guard, Posse, or other
legally appointed law enforcement group you get your gun.
Great. Now here's your homework. Go learn what the word "militia"
meant when the constitution was written. And, find out when the
National Guard was formed. Hint: NG has _nothing_ to do with "militia"
in this context.
Post by Steven E. Eyrse
If your not
you much abide by what ever strange and stupid rules the town, city,
county, state you live in have made. Even ones that say " YOU CAN'T
HAVE A GUN ! " I really don't see how any other interoperation works.
Our forefathers were ineptly clear on this and many other topics with
in the Constitution.
Riiiiiight, because we're supposed to believe that this list of rights
of people suddenly is going to say "of the people" but mean "of the
states" or something all of the sudden?
Jim Stewart
2007-11-21 16:21:54 UTC
Permalink
Post by Dave Hinz
Post by Steven E. Eyrse
If you're a member of a militia AKA: National Guard, Posse, or other
legally appointed law enforcement group you get your gun.
Great. Now here's your homework. Go learn what the word "militia"
meant when the constitution was written. And, find out when the
National Guard was formed. Hint: NG has _nothing_ to do with "militia"
in this context.
On top of that, as it was pointed out to
me yesterday, virtually the entire context
of the bill of rights is *individual* rights,
not states' rights. In that context a lot
of the ambiguity disappears.
David Courtney
2007-11-21 17:17:58 UTC
Permalink
There's a great article here:
http://www.constitution.org/mil/rkba1982.htm

"To preserve liberty, it is essential that the whole body of the people
always possess arms, and be taught alike, especially when young, how to use
them." (Richard Henry Lee, Virginia delegate to the Continental Congress,
initiator of the Declaration of Independence, and member of the first
Senate, which passed the Bill of Rights.)

"The great object is that every man be armed . . . Everyone who is able may
have a gun." (Patrick Henry, in the Virginia Convention on the ratification
of the Constitution.)
Post by Jim Stewart
On top of that, as it was pointed out to
me yesterday, virtually the entire context
of the bill of rights is *individual* rights,
not states' rights. In that context a lot
of the ambiguity disappears.
Wes
2007-11-21 14:51:37 UTC
Permalink
Post by Steven E. Eyrse
If you're a member of a militia AKA: National Guard, Posse, or other
legally appointed law enforcement group you get your gun. If your not
you much abide by what ever strange and stupid rules the town, city,
county, state you live in have made. Even ones that say " YOU CAN'T
HAVE A GUN ! " I really don't see how any other interoperation works.
Our forefathers were ineptly clear on this and many other topics with
in the Constitution.
Back in that day, citizens were the standing militia, hiring it out didn't
remove the right to bear arms from those willing to defend home and hearth.

Wes

Nra Life Member
Larry Jaques
2007-11-22 02:19:28 UTC
Permalink
On Wed, 21 Nov 2007 09:51:37 -0500, with neither quill nor qualm, Wes
Post by Wes
Post by Steven E. Eyrse
If you're a member of a militia AKA: National Guard, Posse, or other
legally appointed law enforcement group you get your gun. If your not
you much abide by what ever strange and stupid rules the town, city,
county, state you live in have made. Even ones that say " YOU CAN'T
HAVE A GUN ! " I really don't see how any other interoperation works.
Our forefathers were ineptly clear on this and many other topics with
in the Constitution.
Back in that day, citizens were the standing militia, hiring it out didn't
remove the right to bear arms from those willing to defend home and hearth.
The way I read the 2nd, we, the people, ARE the militia. We'll be
regulated when the fit hits the shan.
--
"Given the low level of competence among politicians,
every American should become a Libertarian."
-- Charley Reese, Alameda Times-Star (California), June 17, 2003
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