by Dave Kopel
Liberty magazine, Dec. 2003, pp. 23-27. More articles by Kopel on the legal history of the Second Amendment in the Supreme Court.
"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." The Second Amendment is only 31 words. But the meaning of those 31 words has been the subject of considerable debate.
There are four main interpretations of the Second Amendment. The Standard Model is that the right to bear arms belongs to individual American citizens. The states' rights view is that the right belongs to state governments, to control their National Guards. The collective view is that the right to bear arms belongs collectively to all the people, but in practice may be exercised only by the government – like collective property in a communist country. Another interpretation — propounded by Gary Wills — is that the Second Amendment means nothing at all.
The overwhelming weight of Supreme Court precedent supports the Standard Model. A few ambiguous cases could be read as consistent with the Standard Model or with the states' rights theory. The collective rights and nihilist views can find no support in Supreme Court jurisprudence. Let's look at some of those Supreme Court cases, starting with the Court's most important decision, the 1939 Miller case, and working our way back to the very beginning.
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. Freed, Miller and Layton were never heard from again, and thus only the government's side was heard when the case was argued before the Supreme Court.
The key paragraph of the Supreme Court's Miller 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.
This paragraph has been read to support either the Standard Model or the states' rights theory. By the states' rights 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 19th-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). The main case cited as authority by the Miller Court, Aymette v. State, 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 use; Aymette states that the Second Amendment has the same meaning.
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. 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 not really to be a militia program. A unanimous Court disagreed, and stated that California's acceptance of federal assistance in militia training did not transform the training program into an arm of the standing army. States had the authority to make their own judgments about training.
The Court used the Second Amendment to support a point about a state government's power over its militia.
Hamilton used the Second Amendment as a reminder of the expectation by all the Founders that states would supervise the militia. This reminder would be consistent with the states' rights theory and with the Standard Model.
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. 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. 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 is consistent with the Standard Model and the states' rights model.
After World War I broke out in Europe, the U.S. War Department 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. Stearns argued that Circular 8 violated many parts of the Constitution, including the Second Amendment.
Writing for a unanimous Court, Justice McReynolds contemptuously dismissed Stearns' claim without reaching the merits. Since Stearns' present rank of major was undisturbed, there was no genuine controversy for the Court to consider, and the Court would not render advisory opinions.
In Twining, the Supreme Court refused to make the Fifth Amendment self-incrimination guarantee in the Bill of Rights applicable to state trials, via the 14th Amendment. 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 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.
Maxwell was the majority's decision not to make the right to a jury in a criminal case into one of the Privileges or Immunities protected by the 14th Amendment. Regarding the Second Amendment and Presser (discussed below), 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.
Maxwell used Presser only to show that the Second Amendment does not in itself apply to the states.
After the United States won the Spanish-American War, the Philippines were ceded to the United States. Congress in 1902 enacted legislation imposing most, but not all of the Bill of Rights on the Territorial Government of the Philippines. The Trono case and the Kepner cases 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 Justice Peckham's majority opinion, the congressional act imposing the Bill of Rights was summarized: "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 . . . " Kepner had similar language.
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 states' rights.
The Court refused to apply the 13th Amendment to merchant seamen who had jumped ship, been caught, and been impressed back into maritime service without due process. The Court explained that 13th Amendment's ban on involuntary servitude, even though absolute on its face, contained various implicit exceptions. In support of the finding of an exception to the 13th 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 . . . [are] subject to certain well-recognized exceptions arising from the necessities of the case. . . . 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. . . .
In 1897, state laws which barred individuals from carrying concealed weapons were common, and usually upheld by state supreme courts; 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.
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.
Dissenting, Justice Stephen Field (perhaps the strongest civil liberties advocate on the Court during the 19th century) carefully analyzed English and early American precedent, reflecting his vivid appreciation of the long Anglo-American struggle for liberty against arbitrary government. 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-incrimination, the essential and inseparable features of English liberty."
As one of the "essential and inseparable features of English liberty," the right to arms was obviously a right of free individuals, not a power of state governments.
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, some Dallas police officers 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. Miller killed one of the intruders during the shoot-out.
During Miller's murder trial, the prosecutor asserted to the jury that Miller had been carrying a gun illegally.
Appealing to the Supreme Court in 1894, Miller alleged violations of his Second Amendment, Fourth Amendment, Fifth Amendment, and 14th Amendment rights. Regarding the Second Amendment, Miller claimed that it negated the Texas statute against concealed carrying of a weapon.
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." This statement about concealed weapons laws was consistent with what the Court would say about such laws three years later, in the Robertson case.
Moreover, the Second Amendment, like the rest of the Bill of Rights, only operated directly on the federal government, and not on the states.
But did the 14th Amendment make 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."
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 the Presser ruling. 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 14th Amendment.
In Miller v. Texas, the Court suggested that Miller might have had a 14th Amendment argument, if he had raised the issue properly at trial.
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 states' rights 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 14th Amendment might, arguably, make these rights enforceable against the states, Miller's failure to raise the issue at trial precluded further inquiry.
The issue before the Court was whether the prisoners in federal custody, who were injured by a mob, had been deprived of any of their federal civil rights.
Logan affirmed the position of Cruikshank (below) that the First and Second Amendments recognize preexisting fundamental human rights, rather than creating new rights.
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', enacted laws against armed public parades.
Defying the Illinois statue, a self-defense organization composed of German working-class immigrants 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." This holding was consistent with traditional common law boundaries on the right to arms, which prohibited terrifyingly large assemblies of armed men.
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."
An important part of Congress' work during Reconstruction was the Enforcement Acts, which criminalized private conspiracies to violate civil rights. Among the civil rights violations which especially concerned Congress was the disarmament of freedmen by the Ku Klux Klan and similar gangs.
After a rioting band of whites burned down a Louisiana courthouse which was occupied by a 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.
In United States v. Cruikshank, the Supreme Court held the Enforcement Acts unconstitutional. The 14th 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 is found wherever civilization exists.
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 state and local governments.
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.
Holding that a free black could not be an American citizen, the Dred Scott majority opinion listed the unacceptable consequences of black citizenship: 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. 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."
Thus, 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 an individual right of American citizenship. The plain source of the rights listed by the Court is the United States Constitution.
Another part of the Court's opinion 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.
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.
The Taney Court obviously considered the Second Amendment as one of the constitutional rights belonging to individual Americans. The "states' 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.
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 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.
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. In support of this theory, they pointed to the Tenth Amendment, which reserves to states all powers not granted to the federal government.
If, as some 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.
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.
Justice Joseph Story, a consistent supporter of federal government authority, dissented. He argued that the congressional legislation punishing militia resisters was exclusive, and left the states no room to act.
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: the Second Amendment "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."
Justice Story's dissent is inconsistent with the states' rights theory that the Second Amendment somehow reduces Congress' militia powers. Immediately after the Second Amendment hypothetical, Justice Story wrote 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." If federal militia powers, when exercised, are absolute, then the theory that the Second Amendment limits federal militia powers is incorrect.
Second Amendment case law from 1820 to 1939 is consistent with only one interpretative model, the Standard Model of an individual right to keep and bear arms. That is one reason why, until the 1960s, the United States Department of Justice acknowledged the Second Amendment as an individual right, and why Attorney General Ashcroft was correct in returning the Department of Justice to its long-standing, original position regarding the Second Amendment.
Dave Kopel is co-author of the new book Supreme Court Gun Cases (Phoenix: Bloomfield Pr., 2003).
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