Alright, bear with me - this is going to be a real long post...
From The Politics of Gun Control: Third Edition by Robert J. Spitzer, 2004.
The Second Amendment has generated relatively little constitutional law. In four instances, however, the Supreme Court has ruled directly on this amendment.
In the first case,
U.S. v. Cruikshank, 92 U.S. 542 (1876), William Cruikshank and two other defendants were charged with thirty-two counts of depriving blacks of their constitutional rights, including two claiming that the defendants had deprived blacks of firearms possession, in violation of the Force Act of 1870. Speaking for the Court, Chief Justice Waite wrote:
The second and tenth courts are equally defective. The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second Amendment declares that it shall not be infringed; but this … means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National Government.
The Court in this case established two principles that it (and most other courts) have consistently upheld: that the Second Amendment simply does not afford any individual a right to bear arms free from government control; and that the Second Amendment is not “incorporated,” meaning that it pertains only to federal power, not state power (this is what the Court meant when it referred to the Second Amendment not being “infringed by Congress”). Admittedly, the Supreme Court did not beging to incorporate parts of the first ten amendments (that is, use the wording of the due process and equal protection clauses of the Fourteenth Amendment to extend parts of the Bill of Rights to the states) until 1897. But the Court has never accepted the idea of incorporating the entire Bill of Rights, and it has never incorporated the Second Amendment, despite numerous opportunities. In other words, the courts have continued to treat the Second Amendment differently from most of the rest of the Bill of Rights.
Ten years later, the Court ruled in
Presser v. Illinois, 116 U.S. 252 (1886), that an Illinois law that barred paramilitary organizations from drilling or parading in cities or towns without a license from the governor was constitutional. Herman Presser challenged the law after he was arrested for marching and drilling his (armed) fringe group,
Lehr und Wehr Verein, through Chicago streets. In upholding the Illinois law, the Court reaffirmed that the Second Amendment did not apply to the states (citing
Cruikshank). Speaking for a unanimous Court, Justice Woods went on to discuss the relationship between the citizen, the militia, and the government:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserved militia of the United States as well as of the States; and, in view of this prerogative…the States cannot, even laying the constitutional provision in question 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.
The Court then went on to ask whether Presser and his associates had a right to organize with other as a self-proclaimed and armed military organization, against state law. No, the Court answered, since such activity “is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law.” In other words, militias exist only as defined and regulated by the state or federal government, which in Illinois at the time was the 8,000-member Illinois National Guard (as the Court noted in its decision). To deny the government the power to define and regulate militias would, according to the Court, “be to deny the right of the State to suppress armed mobs bent on riot and rapine.” Thus, the Presser case confirmed the understanding that the right to bear arms came into play only in connection with the formation and conduct of the militia, as formed and regulated by the government. The Court emphatically rejected the idea that citizens could create their own militias, much less that the Second Amendment protected citizens’ rights to own weapons for their own purposes.
In 1894, the Supreme Court unanimously ruled in
Miller v. Texas, 153 U.S. 535 (1894), that a Texas law “prohibiting the carrying of dangerous weapons” did not violate the Second Amendment. Again, the Court said that the right to bear arms did not apply to the states. The Court ruled similarly in
Robertson v. Baldwin, 165 U.S. 275 (1897).
The final Supreme Court case in this sequence, and the only one handed down after the Court began the process of incorporation, is
U.S. v Miller, 307 U.S 174 (1939). The Miller case was founded on a challenge to the National Firearms Act of 1934, which regulated the interstate transport of various weapons. Jack Miller and Frank Layton were convicted under the 1934 act of transporting an unregistered 12-gauge sawed-off shotgun (having a barrel less than 18 inches long) across state lines. They challenged the act’s constitutionality by claiming that it was a violation of the Second Amendment and that it represented an improper use of the commerce power. The Court turned aside these claims and ruled that the federal taxing power could be used to regulate firearms and that firearm registration was constitutional. Beyond this, the Court was unequivocal in saying that the Second Amendment must be interpreted by its “obvious purpose” of assuring an effective militia as described in Article I, section 8, of the Constitution (to which the Court referred in its decision). Speaking for a unanimous court, Justice McReynolds wrote:
In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
This, the Court state that citizens could possess a constitutional right to bear arms only in connection with service in a government-organized and –regulated militia. In addition, it affirmed the constitutional right of Congress, as well as the states, to regulate firearms. Most of the rest of the decision is an extended discussion of the antecedents of the Second Amendment. Justice McReynolds cited various classic works, colonial practices, and early state laws and constitutions to demonstrate the importance of militias and citizen-armies to early America as the explanation for the presence and meaning of the Second Amendment.
Critics of this case have on occasion taken the wording quoted above to mean that the Court would protect under the Second Amendment the ownership of guns that do bear some connection with national defense. Such an interpretation is foolish on its face because, first, such reasoning would justify the private ownership of such militarily useful weapons as bazookas, howitzers, and even tactical nuclear weapons. Second, the Court decision states that possession of such weapons as sawed-off shotguns could only be allowed under existing law if that possession were connected with militia service. Because the two men charged under the 1934 law obviously did not have the gun for the purpose of, or while they were serving under, an organized militia, their prosecution and conviction were justified; the Second Amendment would only apply in the context of militia service. And as
Presser clearly stated, citizens may not create their own militias independent of the government. Ironically, sawed-off shotguns can and do have some military value. Remembering that the Court’s point in this case arose from the challenged to the National Firearms Act (the source of the Court’s definition of a sawed-off shotgun), its remedy law in the failure of Miller and Layton to claim any credible connection to Second Amendment-based militia activities. The Second Amendment has received brief mention in two other Supreme Court cases,
Adams v. Williams, 407 U.S. 143 (1972; the comment on the Second Amendment was in a dissenting opinion) and
Lewis v. U.S., 445 U.S. 95 (1980), when the court specifically cited the 1939
Miller case to uphold gun regulations as long as there was some “rational basis” for them. Both of these cases support the logic of the earlier four.
...Whew. So that's what I was reading (a few pages at least) of what the courts said and upheld, etc. Thoughts/comments? Is this book leaving out some pretty vital information? It seemed fairly complete and relatively impartial throughout the other sections, but I could be wrong. Thanks again for the information
