PrecisionMachinisT wrote:
"Phillep" wrote in message
...

"PrecisionMachinisT" wrote


Redundant--you cant have the one without also having the other

anyways.....

Your lathe is "well regulated" only because there's some federal law
requiring it to stay in adjustment?

In this case, the "well regulated militia" means the able bodied men of a
community who have done "paramilitary drills" together.



actually the word militia ,when used in the Constitution refers only to
state run bodies. Exclusively. As in ther is no mention of private
miliitisa in the Constitution.

"Guido" wrote in message
...
snipped for brevity-------------------------------

Er. the language hasn't really changed on this. 'Regulated'
still means regulated, which is the participial adjective of
'Regulate':

To control, govern, or direct by rule, or regulation;
to subject to guidance or restriction; to adapt to
circumstances or surroundings.
refs from 1630

Guido you are an idiot. Please sive this for study the next time you decide
to be a hoplophobe.


What the Supreme Court has said about the Right to Keep and Bear ArmsThe
Supreme
Court's Thirty-five Other Gun Cases:
What the Supreme Court Has Said about
the Second Amendment

[This is a DRAFT of an article that will appear in a symposium issue of
volume
18 of the St. Louis University Public Law Review.]

By David B. Kopel[1]


Among legal scholars, it is conventional wisdom that the Supreme
Court has said almost nothing about the Second Amendment.[2] 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[3] decision remains hotly disputed,
the
question 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 is
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.
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 to ordinary Americans to own a
gun
is “perhaps the most well-settled point in American law.”[4] 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.[5] 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.”[6]
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.[7] This article refers to the
State’s
Rights theory of the Second Amendment as the “Henigan/Bogus theory,” in
honor of
its two major scholarly proponents.[8]
In contrast to the State’s Rights theory is what has become known as the
Standard Model.[9] 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.[10] This modern
Standard
Model is similar to the position embraced by every known legal scholar in
the
nineteenth century who wrote about the Second Amendment: the Amendment
guarantees an individual right, but is subject to various reasonable
restrictions.[11]
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 content,” and was merely a
clever
trick that James Madison played on the Anti-Federalists.[12] 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.[13]
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.[14] The federal courts which follow the academic Standard Model are
in
the minority, although the ranks of the minority have grown in recent
years.[15]
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.[16]
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.[17] Freed, Miller and Layton promptly absconded, and
thus
only the government’s side was heard when the case was argued before the
Supreme
Court.[18]
Unfortunately, Miller was written by Justice James McReynolds, arguably the
worst Supreme Court Justice of the twentieth century.[19] 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.[20]

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).[21] The case cited 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; in dicta, Aymette states that the Second Amendment has the
same
meaning.[22]
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.”[23] 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.[24] The footnote likewise cites treatises by
Justice Joseph Story and Thomas Cooley explicating the Second Amendment as
an
individual right.[25] But the same Miller footnote also cites a Kansas
Supreme
Court 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.[26]
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.[27]
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-one other cases--although most of these cases
appear to have escaped the attention of commentators on both sides of the
issue.
This article ends the bipartisan scholarly neglect of the Supreme Court’s
writings on the Second Amendment.[28]
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. [29]
Nevertheless, all this 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 dicta should treat the Amendment as an individual right.
Moreover, the line between dicta and ratio decendi is never firm,[30] and
one
day’s dicta may become another day’s holding.[31]
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.[32]
Before commencing with case-by-case analysis, let me present a
chart
which summarizes the various cases. 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”).[33] 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.[34] 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.”[35] 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 a free state,” or when they are detrimental to state
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.”[36] 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.[37]
Of the twenty-eight U.S. Supreme Court opinions 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.


Casename and year.Main issue in caseOpinion byType of
opinionSupportive of
individual right in 2d Amendment?Main clause of 2d A,. quoted without
introductory clause?Page of this article
Spencer v. Kemna. 1998Article III case or controversy.StevensDissent
from
denial of cert.Yes, but could possibly be read as referring to rights
under state constitutionsNo quote.
Muscarello v. U.S. 1998Fed stat. Interp.GinsburgDissentYes.Partial
quote.
Printz v. U.S. 1997FederalismThomasConcurSays that Miller did not
decide
the issue. Thomas appears to support individual right.Full quote.
Albright v. Oliver. 199414th A. And § 1983StevensDissentYes.Partial
quote.

Planned Parenthood v. Casey. 1992.14th A.O’ConnorMajority Yes.Partial
quote.
U.S. v. Verdugo-Urquidez. 1990. 4th A. applied to foreign
national.RehnquistMajority Yes.Partial quote.
Lewis v. U.S. 1980.Statutory interp. Of Gun Control Act of 1968
BlackmunMajorityAmbiguous, but probably not. If an individual right,
less
fundamental than some others.Full quote.
Moore v. East Cleveland. 1976.14th A.PowellPluralityYes. (But contrary
opinion expressed by Justice Powell after retirement.)Partial quote.
“ ““ “WhiteDissent.Yes.Partial quote.
Adams v. Williams. 19724th A. DouglasDissentNo.Full quote.
Roe v. Wade. 197314th A. StewartConcurYes.Partial quote.
Laird v. Tatum. 1972.JusticiabilityDouglasDissentAmbiguous.Partial
quote.
Burton v. Sills. 1969.Challenge to state gun licensing lawPer
curiamSummary affirm.Ambiguous.No quote.
Duncan v. Louisiana. 1968.Incorporation of 6th
amendment.BlackConcurYes.Partial quote.
Malloy v. Hogan. 1964.Incorporation of 5th Amend. BrennanMajorityYes.
No
quote.
Konigsberg v. State Bar. 1961.1st AmendmentHarlanMajorityYes.Partial
quote.
Poe v. Ullman. 1961.14th AmendmentHarlanDissentYesPartial quote.
“ ““ “DouglasDissentYes, but implicitly abandoned in Adams.No quote.
Johnson v. Eisentrager. 19505th A. applied to trial of enemy
soldier.JacksonMajorityYesPartial quote.
Knapp v. Schweitzer. 1958.Incorp. of 5th
A.FrankfurterMajorityYesPartial
quote.
Adamson v. Calif. 1947.Incorp. of 5th A.BlackDissentYesPartial quote.
Hamilton v. Regents. 1935.Conscientious objector.ButlerMajorityNo, but
not
necessarily inconsistent with an individual right.No quote.
U.S. v. Schwimmer. 1929.Immigration lawsButlerMajority AmbiguousFull
quote.
Stearns v. Wood. 1915.Article III case or
controversy.McReynoldsMajorityAmbiguous, since court refuses to hear
any
of plaintiff’s claimsNo quote.
Twining v. N.J. 1908.Incorp. Of 5th A
self-incrim.MoodyMajorityYesPartial
quote
Trono v. U.S. 19055th A. in the PhilippinesPeckhamMajorityYesPartial
quote.
Kepner v. U.S. 1904.“ “DayMajorityYes. Same as Trono.Partial quote.
Maxwell v. Dow. 1899.Incorp.of 5th A. Jury
trialPeckhamMajorityYesPartial
quote.
Robertson v. Baldwin. 1897.13th A.BrownMajorityYes.Partial quote.
Brown v. Walker. 1896.5th A.Field.DissentYes.Partial quote.
Miller v. Texas. 1894.14th AmendmentBrownMajorityYes.Partial quote.
Logan v. U.S. 1892.Cong. Power from 14th A.GrayMajorityYes.Partial
quote.
Presser v. Illinois. 1886.2d A.WoodsMajorityYes.Full quote.
U.S. v. Cruikshank 1876.Cong. Power under 14th A.WaiteMajorityYes. A
basic
human right which pre-exists the Constitution, and is guaranteed by
the
Constitution, exactly like the 1st A. Right to assembly.No quote.
Scott v. Sandford. 1857.Citizenship; Cong. Powers over
territories.TaneyMajorityYesPartial quote.
Houston v. Moore. 1820.State powers over militiaStorydissentYes, but
also
supportive of a state’s right. (A later treatise written by Story is
for
individual right only.)No quote.


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 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.[38] While free, he was accused but not convicted of rape, and his
parole
was revoked.[39] He argued that his parole revocation was
unconstitutional.[40]
But before his constitutional claim could be judicially resolved, his
sentence
ended, and he was released.[41] 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.[42]

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.[43]) 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.[44] It is notable, then, that Justice Stevens
recognizes a
right to bear arms as an important constitutional right, whose denial should
not
be shielded from judicial review.[45]

B. Muscarello v. United States

Federal law provides a five year mandatory sentences for anyone
who
“carries a firearm” during a drug trafficking crime.[46] Does the sentence
enhancement applied when they 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.”[47] In dissent, Justice
Ginsburg—joined
by Justices Rehnquist, Scalia[48], and Souter—argued that “carries a
firearm”
means to carry it so that it is ready to use.[49] In support for her view,
Justice Ginsburg pointed to the Second Amendment “keep and bear arms” as an
example of the ordinary meeting 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
a
ubiquitously 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.”[50]

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,[51] the 1776 Pennsylvania Constitution,[52] 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.[53] 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”[54]) argues that “bear” has an exclusively military
context.[55] It is impossible, he writes, to “bear arms” unless once is
engaged
in active militia service. Hence, the right to “bear arms” does not refer to
a
right of individuals to carry guns.[56]
Justice Ginsburg’s opinion plainly takes the former approach.
She
believes that “to bear arms” is to wear arms in an ordinary way.[57]

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.[58] 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
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.[59] The
law
was enacted under the congressional power “to regulate commerce…among the
several states.”[60] 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.[61] 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.[62]
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[63] a personal right to “keep and bear arms,” 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.[64]

There are several notable elements in the Thomas concurrence. First, Justice
Thomas equated 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).[65] He implicitly
rejects second-class citizenship for the Second Amendment.
Justice Thomas then suggested that the Brady Act could be invalid under the
Second Amendment. 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.[66] Justice Thomas plainly did not take such a weak
position in defense of the Second Amendment. His implication is that by
requiring government permission and a week-long prior restrain 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 rejected the argument that the Second Amendment merely
protects “sporting weapons” (usually defined as a subset of rifles and
shotguns).
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
left
no doubt about his personal view of the issue, as he quoted 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.”[67]
There are two footnotes in the Second Amendment portion of the Thomas
concurrence. In the first footnote, the Justice states out 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[68]). He added that the Supreme Court has
never
directly ruled on the individual rights issue.

1Our 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:

2Marshaling 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 pointed 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 government.
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.[69]
The Supreme Court does not always follow the viewpoint of the legal academy.
But
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.[70] 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. 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
malicious decision to prosecute someone for conduct which was not crime
under
the relevant state law.[71] 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.

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”:

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).

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. [72]

In Poe v. Ullman, the second Justice Harlan construed the
“liberty”
protected by the Fourteenth Amendment. Although Justice Harlan’s words
originally were written in dissent, they have been quoted in later cases as
the
opinion of the Court.[73] 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” was not limited to “the specific guarantees elsewhere
provided in
the Constitution” including “the right to keep and bear arms.” These
individual
rights in the Harlan list, like other individual rights in the Bill of
Rights,
might be included 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.[74])
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.[75] 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.[76] 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 of the scope of Fourteenth Amendment liberty includes
important material which later Justices carefully avoided quoting.[77]

F. United States v. Verdugo-Urquidez
United States v. Verdugo-Urquidez[78] 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.[79] 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.[80]

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.”[81]
To
adopt the Bogus/Henigan 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.’”[82] 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.[83]
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.[84]
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.[85] 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 Warren Court’s dicta are not so consistent.

A. Lewis v. United States
The one Supreme Court majority opinion which is fully
consistent
with the Bogus/Henigan state’s rights theory is Lewis v. United States.[86]
Interestingly, the same advocates who dismisses Verdugo because it was not a
Second Amendment case rely heavily on Lewis even though it too is not a
Second
Amendment case. The issue in Lewis was primarily statutory interpretation,
and
secondarily the Sixth Amendment. A federal statute imposes severe penalties
on
person who possess a firearm after conviction for a felony.[87] In 1961,
Lewis
had been convicted of burglary in Florida[88]; since Lewis was not provided
with
counsel, his conviction was invalid under the rule of Gideon v.
Wainright.[89]
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.[90]
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…”[91] This supposedly showed
Congressional
intent to disarm people like Lewis, since the Senator had “stressed
conviction,
not a ‘valid’ conviction.”[92] 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.”[93] 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.[94]
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 office in a
waterfront labor organization); Hawker v. New York, 170 U.S. 189
(1898)(prohibition against the practice of medicine).[95]

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.[96]

Attorney Stephen Halbrook (the successful plaintiffs’ attorney
in
the Supreme Court gun cases of Printz v. United States[97], and United
States v.
Thompson/Center[98]) reads Lewis reflecting for 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.”[99]
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?
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][100]

The Cody 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., Cases Velazquez v. United States,
319
U.S. 770, 63 S. Ct. 1431, 87 L. Ed. 1718 (1943).[101] We find no evidence
that
the prohibition of § 922(a) (6) obstructs the maintenance of a well
regulated
militia.[102]

In Johnson, the Fourth Circuit upheld the Gun Control Act as
applied
to a convicted felon who transported a firearm in interstate commerce.[103]
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.’”[104]
Now a “collective right” can be read two ways: it can be like
“collective property” in a Communist country; since the property 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, each person has a right to possess arms for militia
purposes (but not to possess arms for other purposes, such as
self-defense).[105] Indeed, this is the approach taken by 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.[106]
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 that proposition. Although Halbrook’s reading of Lewis
is
not formally wrong, the spirit of Lewis certainly 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. The plurality
opinion by
Justice Powell found in the Fourteenth Amendment a general protection for
families to make their own living arrangements.[107] Thus, the East
Cleveland
law, which, for example, forbade two minor cousins to live with their
grandmother, [108] was unconstitutional.
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,[109] and by Justice Stevens’ dissent
in
Albright v. Oliver[110]:

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).[111]

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.[112]
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,[113] and was adopted in nine of the first fifteen
states’
constitutions.[114] 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.[115] With the exception of a single
concurring opinion by an Arkansas judge in 1842,[116] every known judicial
opinion and scholarly commentary from the nineteenth century treated the
Second
Amendment as an individual right.[117]
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,[118] and many others own other types of
“arms” (such as edged weapons) which might fall within scope of protected
“arms.”[119] Today, forty-four state constitutions guarantee a right to
arms[120]; 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.[121] Twenty years ago, only a few states allowed ordinary citizens
to
obtain a permit to carry a concealed handgun for protection; now twenty-nine
states have “shall issue” laws, and two states require no permit at
all.[122]
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 constitution protected
such
a right when Madison wrote the Fifth Amendment’s just compensation clause;
no
state ratifying convention had demanded such a clause, and no such right was
recognized in the English Bill of Rights.[123] If the just compensation is
“traditional” enough to have been incorporated, as it has been,[124] 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.
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[125];
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.[126]
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
1973
case of Adams v. Williams. Acting on a tip, a police officer stopped a
motorist
for questioning, and then grabbed a revolver hidden in the driver’s
waistband.
The Supreme Court majority upheld the officer’s actions as a reasonable
effort
to protect his safety.
Justice Douglas, a strong defender of the Fourth Amendment right
to
be free from unreasonable searches, dissented. 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
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.[127]

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 open-door to
“stop
and frisk” would become a tool for police officers to search people at will,
with officer safety often serving as a mere pretext. (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. (Connecticut was one of the first states to adopt “shall issue”
laws
for concealed handgun permits; now, thirty-one states have such laws.[128])
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.

D. Roe v. Wade
The same year that 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,[129] 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.[130] 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.
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, 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).

Thus, the Harlan dissenting language about the Second Amendment,
from Poe v. Ullman has been quoted in one majority opinion (Planned
Parenthood
v. Casey[131]), one plurality opinion (Moore v. East Cleveland[132]), one
dissent (Albright v. Oliver[133]), and one concurrence (Roe v. Wade[134]).
In
contrast, the Douglas dissenting language about the Second Amendment, from
Adams
v. Williams,[135] 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. When the Army’s conduct was
discovered, a group of individuals who had been spied upon brought suit in
federal court. In a sharply divided five-four decision, the Supreme Court
majority held that the suit was not justiciable.[136] The plaintiffs could
not
show that they had been harmed by the Army, or the there was in the
realistic
prospect of future harm, and hence there was no genuine controversy for a
federal court to hear. Justice Douglas (joined by Justice Marshal) penned a
fiery dissent, invoking the long struggle to free civil life from military
domination.
Justice Douglas began by examining the power which the
Constitution
grants Congress over the standing army and over the militia. 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.
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.

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:7

“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 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.”[137]

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).[138]
But based on Justice Douglas’s dissent the next 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 Bogus/Henigan 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.

A. Burton v. Sills
Burton v. Sills involved a challenge to the then-new gun
licensing
law in New Jersey.[139] 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[140], the plaintiffs asked
the
Supreme Court to review the case; the review came in the form of an
“appeal,”
rather than a petition for a writ of certiorari.[141]
The United States Supreme Court declined to hear the case. 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.”[142]
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.[143]

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.[144])
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.[145] The plaintiffs
invited the courts to use the Burton case as an opportunity to reverse prior
precedent.[146] 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, suggesting that the Brady Act
waiting
period may violate the Second Amendment, implies he would not read Burton
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.”[147]
Given the plaintiffs’ requested grounds for Supreme Court review (to
overturn
Presser) it is logical to view Burton as a re-affirmance of Presser. (As
discussed supra, dicta in several cases from 1976 onward suggest that a
majority
of the Court may now consider the Second Amendment right to be among the
rights
protected by the Fourteenth Amendment.[148])
On the other hand, since Burton contains no explicit reasoning, the case is
not
directly contradictory to the Bogus/Henigan 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.[149]
Justice Black, joined by Justice Douglas, concurred, and restated his
argument
from Adamson v. California (infra) that the Fourteenth Amendment’s
“privileges
and immunities” clause should be read to include everything in the first
eight
Amendments. 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
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...[150]

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 in other cases
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.[151]

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.[152] 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.”[153] Among these were “Presser v. Illinois, 116 U.S. 252, 265
(Second Amendment),”[154] along with various other cases, almost of which
had
been, or would be, repudiated by later decisions on incorporation.[155]
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 of of some significance as a modern interpretation
of
Presser, since, as we shall discuss infra, the years after the 1886 Presser
decision generated a variety of opinions about whether Presser actually had
rejected incorporation.

D. Konigsberg v. State Bar
In Konigberg, 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.[156] 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.[157]
Justice Harlan’s majority opinion rejected Justice Black’s
standard
of constitutional absolutism. The Harlan majority opinion is one of the
classic
examples of the “balancing” methodology of jurisprudence.[158] Justice
Harlan
pointed to libel laws as laws which restrict speech, but which do not
infringe
the First Amendment.[159] 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.[160]
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.[161]

The year before Justice Black’s absolutist interpretative model was rejected
by
the majority of the Court, Justice Black had detailed the absolutist theory
in
the first annual James Madison lecture at the New York University School of
Law.[162] 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.[163] Regarding the Second Amendent, 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.[164]

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…”[165] If Justice Black thought that the Second Amendment protected
state power, rather than individual liberty, he should 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 “unequivocal
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.[166] 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
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.”[167]
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 t
he
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,[168] the Harlan dissent in Poe is 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”[169] those quotations omit the list of cases that
Justice
Harlan cited for the proposition. That list included Allgeyer v.
Louisiana[170]
and Nebbia v. New York,[171] 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 as a logical claim to be
part of the Fourteenth Amendment as do Griswold and its progeny; both 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.
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.”[172] 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.[173]
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.[174]

F. Knapp v. Schweitzer
Knapp involved the applicability of the Fifth Amendment’s self-incrimination
clause to the states.[175] 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 that
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-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).[176]

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.[177] The American army captured them, and tried them by
court-martial in China as war criminals. 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.[178]
Justice Jackson’s majority opinion held that the Germans had no
Fifth Amendment rights. He pointed out that if the Germans could invoke the
Fifth Amendment, they could invoke the rest of the Bill of Rights. 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,[179] 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
Fourth, as well as rights to jury trial as in the Fifth and Sixth
Amendments.[180]

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.[181]
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.[182]

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. This jury instruction was plainly inconsistent with the Fifth
Amendment[183]; 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.”[184]
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.” 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 the
Federal
Constitution against the powers of the Federal government.’ Cf. Palko v.
Connecticut, 302 U.S. 319, 329, 153.

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. 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 (Chair of the Senate
Judiciary Committee) explained that one certain statutes “prohibit any negro
or
mulatto from having firearms…”[185] 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.”[186]
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…..
…
“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.[187]

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…”[188]
….
“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.[189]

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.”[190] 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.
The Fourteenth Amendment Framers 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. The Bogus/Henigan 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 Nine). Finally, Congress
explicitly
guaranteed a state’s right in the Tenth Amendment. 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.
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.”[191]
Which reading would 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 Bogus/Henigan 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.[192] 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.[193] 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.[194] 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 made their own judgements 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
trangresses
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.[195]

Thus, the Court used the Second Amendment is 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.[196] 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.”[197]
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
not 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.
The report of the attorneys’ arguments, on both sides, shows that the Second
Amendment was not raised as an issue. 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.”[198] In other words, state militia powers were inherent in
the
nature of state sovereignty, and continue to exist except to the extent
limited
by Congress.
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.[199] 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.”[200] 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?[201]

The cited pages of Kent’s Commentaries discuss state versus federal powers
over
the militia. Chancellor Kent uses Martin v. Mott to show that a President’s
decision that there is a need to call out the militia is final. Houston v.
Moore[202] (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.[203]
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.[204]


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 ninth was ambiguous, and the tenth 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.[205] 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 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. ...”
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.[206]

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)[207], 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,[208] 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[209]) can also be a duty.

B. Stearns v. Wood
This case came to the Court after World War I had broken out in Europe.[210]
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.[211] 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.[212]
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.[213]
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. Blaksly 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,[214] Stearns’ attorney’s argument
did
have some foundation in case law.

C. Twining v. New Jersey
In Twining, the majority of the Supreme Court (with the elder
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.[215] 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.[216]

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, 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.[217] 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.[218]

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.[219] 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 case and the 1904 Kepner 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:

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.[220]

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.
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.
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.
In contrast, the Court did note the omission of “the right of
trial
by jury and the right of the people to bear arms.”[221] 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.
The 1904 United States v. Kepner case involved a similar issue.
[222] 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.[223]

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. The Court explained that Thirteenth
Amendment’s ban on involuntary servitude, even though absolute on its face,
contained certain various implicit exceptions.[224] 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…[225]

Likewise, the self-incrimination clause did not bar a person from being
compelled to testify against himself if he is immune from prosecution; and
the
confrontation clause did not bar the admission of dying declarations.[226]
In 1897, state laws which barred individuals from carrying
concealed
weapons were common, and usually upheld by state supreme courts[227]; the
laws
were not to 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.

G. Dissent in Brown v. Walker, (Field, J., dissenting)
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.[228] The majority pointed out that a
Congressional statute protected the witness from any criminal prosecution
growing out of the testimony. [229]
Dissenting, Justice Stephen Field (perhaps the strongest civil
liberties advocate on the Court during the nineteenth century) dissented,
and
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.[230] 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.[231] 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
criminating
testimony.” 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.”[232]

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.[233]
Justice
Field’s paragraph is not a list of state powers, it is a list of personal
rights
won at 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, of 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.[234] 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.”[235] This
statement about concealed weapons laws was consistent with what the Court
would
say about such laws three years later, in the Robertson case.[236]
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.”[237]
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.”[238]
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 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.
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.[239]
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. Illlinois, which involved the murder
prosecutions
arising out the Haymarket Riot.[240] John Randolph Tucker represented the
defendants. Tucker, an eminent Congressman, author of an important treatise
on
constitutional law[241], a future President of the American Bar Association,
and
a leading law professor at Washington and Lee--argued that the whole Bill of
Rights was enforceable against the states, including the right to arms.[242]
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.[243] 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.”[244]
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.[245] (An 1890 opinion,
Eilenbecker, again cited Cruikshank and Presser as holding that the Bill of
Rights does not apply directly to the states.[246]) 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.[247]
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 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.[248]
Whatever Miller 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 Bogus/Henigan
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. 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.[249] 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
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.
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.[250]

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.[251]
Defying the Illinois government, 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.”[252] This holding was consistent with
traditional
common law boundaries on the right to arms, which prohibited terrifying
large
assemblies of armed men.[253]
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.”[254]
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.[255] 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.[256]
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[257]--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
over-ruled) 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.[258] 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.
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.[259]
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.[260]

So according to Presser, the constitutional militia includes “all citizens
capable of bearing arms.”[261] 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.
One of the most notable cases of the nineteenth century, Dred Scott, used
the
Second Amendment to support arguments about other subjects, but 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 authority
over
the militia—as long as the federal government has not exercised its own
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. [262] Among the civil rights violations which especially concerned
Congress was the disarmament of Freedmen by the Ku Klux Klan and similar
gangs.[263]
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.[264]
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 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.[265]

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. . . .”[266]

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 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.[267]
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[268] (even though the facts of Cruikshank
involve
private actors, 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.[269] 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. Sanford
Holding that a free black could not be an American citizen,[270]
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.[271] 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.”[272]
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.[273] 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.”[274]
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.[275] 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.
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.[276]

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.[277]
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.”[278]
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.[279]
Dred Scott’s holding about black citizenship was over-ruled by
the
first sentence of the Fourteenth Amendment, which states that all persons
born
in the Untied States are citizens of the United States.[280] 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 began acquired the new territories of Cuba, Puerto Rico, and
the
Philippines, and acquired Hawaii after the 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 status of the
new
imperial territories.[281] 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,[282] a New York attorney exclaimed that the majority opinion was
“the
Dred Scott of Imperialism!”[283] 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.[284]

C. Houston v. Moore
The very first case in which a Supreme Court opinion mentioned
the
Second Amendment was Houston v. Moore, a 1821 case so obscure that even
modern
scholars of the Second Amendment are often unaware of it.[285] 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
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. [286] 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.[287]
In
support of this theory, they pointed to the Tenth Amendment, which reserves
to
states all powers not granted to the federal government.[288]
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.[289]
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.[290] Justice William Johnson concurred; he argued that Houston
could not be prosecuted for violating the federal law; accordingly, he could
be
prosecuted for violating the state law.[291]
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.[292] He argued that the Congressional legislation punishing
militia
resisters was exclusive, and left the states no room to act.[293]
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.[294]

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 Bogus/Henigan
theory that Second Amendment somehow reduces Congress’s militia powers.
Immediately, after the Second Amendment hypothetical, Justice Story stated
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.”[295] If federal militia powers, when exercised, are absolute, then
the
Bogus/Henigan theory that the Second Amendment limits federal militia powers
is
incorrect.
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
Untied
States, and his Familiar Exposition of the Constitutution 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.[296]

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
commentators,[297] Justice Story shared the conventional wisdom of the
nineteenth century[298]: 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,[299]
the Supreme Court has mentioned or quoted the Second Amendment in thirty-one
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.[300] Three majority opinions of the Court (the 1980
Lewis
case,[301] the 1934 Hamilton case,[302] and the 1929 Schwimmer case[303]),
plus
one appeal dismissal (Burton v. Sills, 1969[304]), and one dissent (Douglas
in
Laird[305]) 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 the 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.[306]
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,[307] but in 1989 the opinion’s author, retired Justice
Powell,
told a television interviewer that there was no right to own a firearm.[308]
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).[309] Justice Story’s later
scholarly
commentaries on the Second Amendment only addressed the individual right,
and
did not investigate the Amendment as a basis of state authority.[310]
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.[311]
Twenty-six opinions remain, including nineteen majority
opinions.
Each of these opinions treats the Second Amendment a right of individual
American citizens. Of these twenty-two 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.[312]
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?[313] 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 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 Second Amendment
is
clear: the Second Amendment--like the First, Third, Fourth, Fifth, Sixth,
and
Fourteenth Amendments--belongs to “the people”, not the government.





[1] Adjunct Professor of Law, New York University School of Law; Research
Director, Independence Institute, Golden, Colorado, http://i2i.org; J.D.
1985
University of Michigan Law School; B.A. in History, 1982, Brown University.
I
would like to thank Clayton Cramer, Brannon Denning, Gerry Kolisch, Gary S.
Marbut, Glenn Harlan Reynolds, and Eugene Volokh for very helpful comments.
Any
errors in this article are the fault of society, and cannot be blamed on an
individual.
[2] E.g. Akhil Amar, The Bill of Rights (1998).
[3]
[4] Dennis Henigan, The Right to Be Armed: A Constitutional Illusion, S.F.
Barrister, Dec. 1989, ¶ 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
[5] 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]
[6] Mark Polston, Obscuring the Second Amendment, 34 Virginia Resolves, No.
32
(Spring 1994).
[7] 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 B.Y.U. L. Rev. 1359 , - .
Some other scholarly sources rejecting the Standard Model a 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).
[8] For an effort to trace the potential countours 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).
[9]
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.

Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L.
Rev. 461, 463 (1995).
[10] 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 Reed 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 (19 );
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); Joyce Lee Malcolm,
To
Keep and Bear Arms: The Origins of an Anglo-American Right (1994); Akhil
Reed
Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193
(1992); Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J.
1131, 1164 (1991); Randy E. Barnett & Don B. Kates, Under Fi The New
Consensus on the Second Amendment, 45 Emory L.J. 1139, 1141 (1996); Bernard
J.
Bordenet, The Right to Possess Arms: The Intent of the Framers of the Second
Amendment, 21 U. West L.A. L. Rev. 1, 28 (1990); David I. Caplan, The Right
of
the Individual to Bear Arms: A Recent Judicial Trend, 1982 Det. C.L. Rev.
789,
790; David I. Caplan, The Right to Have Arms and Use Deadly Force Under the
Second and Third Amendments, 2.1 J. on Firearms & Pub. Pol’y 165 (1990);
Robert
J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an
Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991); Brannon P.
Denning,
Can the Simple Cite Be Trusted?: Lower Court Interpretations of United
States v.
Miller and the Second Amendment, 26 Cumb. L. Rev. 961 (1995-96) [hereinafter
Denning, Simple Cite]; Brannon P. Denning, Gun Shy: The Second Amendment as
an
“Underenforced Constitutional Norm”, 21 Harv. J.L. & Pub. Pol’y 719 (1998);
Anthony J. Dennis, Clearing the Smoke From the Right to Bear Arms and the
Second
Amendment, 29 Akron L. Rev. 57 (1995); Robert Dowlut, Federal and State
Constitutional Guarantees to Arms, 15 U. Dayton L. Rev. 59 (1989); Robert
Dowlut, The Current Relevancy of Keeping and Bearing Arms, 15 U. Balt. L.F.
32
(1984); Robert Dowlut, The Right to Arms: Does the Constitution or the
Predilection of Judges Reign?, 36 Okla. L. Rev. 65 (1983); Robert Dowlut,
The
Right to Keep and Bear Arms: A Right to Self-Defense Against Criminals and
Despots, 8 Stan. L. & Pol’y Rev. 25 (1997); Richard E. Gardiner, To Preserve
Liberty—A Look at the Right to Keep and Bear Arms, 10 N. Ky. L. Rev. 63
(1982);
Alan M. Gottlieb, Gun Ownership: A Constitutional Right, 10 N. Ky. L. Rev.
113
(1982); Stephen P. Halbrook, Congress Interprets the Second Amendment:
Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear
Arms,
62 Tenn. L. Rev. 597 (1995); ; 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 (no. 4, 1999,
forthcoming); Stephen P. Halbrook, Encroachments of the Crown on the Liberty
of
the Subject: Pre-Revolutionary Origins of the Second Amendment, 15 U. Dayton
L.
Rev. 91 (1989); Stephen P. Halbrook, Personal Security, Personal Liberty,
and
“The Constitutional Right to Bear Arms”: Visions of the Framers of the
Fourteenth Amendment, 5 Seton Hall Const. L.J. 341 (1995); Stephen P.
Halbrook,
Second-Class Citizenship and the Second Amendment in the District of
Columbia, 5
Geo. Mason U. Civ. Rts. L.J. 105 (1995); Stephen P. Halbrook, The
Jurisprudence
of the Second and Fourteenth Amendments, 4 Geo. Mason L. Rev. 1 (1981);
Stephen
P. Halbrook, The Right of the People or the Power of the State: Bearing
Arms,
Arming Militias, and the Second Amendment, 26 Val. U. L. Rev. 131 (1991);
Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the
Right to “Bear Arms”, 49 Law & Contemp. Probs. 151 (1986); Stephen P.
Halbrook &
David B. Kopel, Tench Coxe and the Right to Keep and Bear Arms in the Early
Republic, 7 Wm. & Mary Bill of Rts. J. (1998); David G. Hardy, Armed
Citizens,
Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 Harv. J.L.
&
Pub. Pol’y 559 (1986); David G. Hardy, The Second Amendment and the
Historiography of the Bill of Rights, 4 J.L. & Pol. 1 (1987); Nicholas J.
Johnson, Principles and Passions: The Intersection of Abortion and Gun
Rights,
50 Rutgers L. Rev. 97 (1997); Don B. Kates, Jr., Handgun Prohibition and the
Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983); Don
B.
Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143
(1986); Don Kates, The Second Amendment and the Ideology of Self-Protection,
9
Const. Commentary 87 (1992); Kopel, The Second Amendment in the Nineteenth
Century, supra; David B. Kopel & Christopher C. Little, Communitarians,
Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition, 56
Md. L.
Rev. 438 (1997); Stephanie A. Levin, Grassroots Voices: Local Action and
National Military Policy, 40 Buff. L. Rev. 321, 346-47 (1992); Sanford
Levinson,
The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Nelson Lund, The
Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. 1 (1996);
Nelson Lund, The Second Amendment, Political Liberty, and the Right to
Self‑Preservation, 39 Ala. L. Rev. 103 (1987); Joyce Lee Malcolm, The
Right of
the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings
Const.
L.Q. 285 (1983); Thomas B. McAffee & Michael J. Quinlan, Bringing Forward
the
Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the
Way?,
75 N.C. L. Rev. 781 (1997); Thomas M. Moncure, Jr., The Second Amendment Ain
’t
About Hunting, 34 How. L.J. 589 (1991); Thomas M. Moncure, Jr., Who is the
Militia—The Virginia Ratification Convention and the Right to Bear Arms, 19
Lincoln L. Rev. 1 (1990); James Gray Pope, Republican Moments: The Role of
Direct Popular Power in the American Constitutional Order, 139 U. Pa. L.
Rev.
287 (1990); L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation,
38
Wm. & Mary L. Rev. 1311 (1997); Michael J. Quinlan, Is There a Neutral
Justification for Refusing to Implement the Second Amendment or is the
Supreme
Court Just “Gun Shy”?, 22 Cap. U. L. Rev. 641 (1993); Glenn Harlan Reynolds,
A
Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995); Glenn
Harlan Reynolds, The Right to Keep and Bear Arms Under the Tennessee
Constitution: A Case Study in Civic Republican Thought, 61 Tenn. L. Rev. 647
(1994) (discussing the Second Amendment as related to the Tennessee
Constitution); Elaine Scarry, War and the Social Contract: Nuclear Policy,
Distribution, and the Right to Bear Arms, 139 U. Pa. L. Rev. 1257 (1991); J.
Neil Schulman, The Text of the Second Amendment, 4 J. on Firearms & Pub.
Pol’y
159 (1992); Robert E. Shalhope, The Armed Citizen in the Early Republic, 49
Law
& Contemp. Probs. 125 (1986); Robert E. Shalhope, The Ideological Origins of
the
Second Amendment, 69 J. Am. Hist. 599 (1982); William Van Alstyne, The
Second
Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994); David E.
Vandercoy, The History of the Second Amendment, 28 Val. U. L. Rev. 1007
(1994);
Eugene Volokh, The Amazing Vanishing Second Amendment, 73 N.Y.U. L. Rev. 831
(1998); Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev.
793
(1998); Scott Bursor, Note, Toward a Functional Framework for Interpreting
the
Second Amendment, 74 Tex. L. Rev. 1125 (1996); Robert J. Cottrol & Raymond
T.
Diamond, The Fifth Auxiliary Right, 104 Yale L.J. 995 (1995) (reviewing
Joyce
Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right
(1994)); Brannon P. Denning, Professional Discourse, The Second Amendment,
and
the “Talking Head Constitutionalism” Counterrevolution: A Review Essay, 21
S.
Ill. U. L.J. 227 (1997) (reviewing Dennis A. Henigan et al., Guns and the
Constitution: The Myth of Second Amendment Protection for Firearms in
America
(1996)); T. Markus Funk, Is the True Meaning of the Second Amendment Really
Such
a Riddle? Tracing the Historical “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).
[11] The nineteenth century scholars were (in roughly chronological order):
St.
George Tucker; William Rawle; Joseph Story (see text at notes - ); Henry St.
George Tucker; Benjamin Oliver; James Bayard; Francis Lieber; Thomas Cooley
(see
note 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
B.Y.U.
L. Rev. 1359.
[12] Garry Wills, Why We Have No Right to Bear Arms, N.Y. Rev. Books, Sept.
21,
1995.
[13] 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).
[14] 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 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).
[15] E.g, Runnebaum v. Nationsbank of Maryland, N.A., 123 F.3d 156 n. 8(4th
Cir., 1997)(en banc, plurality op.)(“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.)(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
of Rights.]”); Cases v. United States, 131 F.2d 916, 921 (1st Cir.)(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, 1999 U.S.
Dist. LEXIS 4122, crim. No. 6:98-CR-103-C (N.D. Texas, Mar. 30,
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 right is not absolute and does not include right to import
arms),
aff’d 894 F.2d 412 (11th Cir. 1990)(mem.).
[16] Denning, Simple Cite.
[17] 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.’”)
[18] 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.
[19] Powe, William and Mary L. Rev., supra.
[20]
[21] 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).
[22]
[23]
[24] Presser v. Illinois, 116 U. S. 252 (Second Amendment not violated by
ban on
armed parades; see infra); Robertson v. Baldwin, 165 U. S. 275 (Second
Amendment
not violated by ban on carrying concealed weapons, see infra ); Fife v.
State,
31 Ark. 455 (Second Amendment does not apply to the states; state right to
arms
not violated by ban on brass knuckes); People v. Brown, 253 Mich. 537, 235
N. W.
245 (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, 2 Humphr. (Tenn.) 154 (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 Texas
455
(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, 35 W. Va. 367; 14
S.E.
9 (Second Amendment applies to the states, but guarantees “ 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...”).
[25] 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 render 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 bearing 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 infra.
[26] Salina v. Blaksly, 72 Kan. 230, 83 P. 619 (right to arms in Kansas Bill
of
Rights is only an affirmance of the state government’s supremacy over the
militia; Second Amendment means the same). Another cited case, Jeffers v.
Fair,
33 Ga. 347, is a Confederate draft case.
[27] Infra.
[28] One reason for the neglect of the cases may be mistaken claims that the
cases do not exist. In an article on Handgun Control, Inc., website, Dennis
Hennigan writes, “Since Miller, the Supreme Court has addressed the Second
Amendment in two cases.” Actually, there have been 16 such cases after
Miller,
and most of those cases precede the date of Henigan’s article.
[29] 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)(1908).
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.), aff'd. per curiam, 724 F.2d 28 (2d Cir. 1983).
[30] 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.”)
[31] 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.”)
[32] 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
[33]
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.

Dennis Henigan, HCI website.
[34]
[35] R.I. Const. art. I, § 20 (1842).
[36] N.H. Const. pt. I, art. XXXVI (1784).
[37] Volokh, Commonplace, at .
[38] 523 U.S. 1 (1998).
[39]
[40]
[41]
[42] Id. at 36 (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.
[43] 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 indi*viduals 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 con*victed felon, nor prevent
the
passage of any legislation pun*ishing the use of a firearm. No law shall
impose
licensure, reg*istration or special taxation on the ownership or possession
of
firearms or ammunition. Nor shall any law permit the confis*cation of
firearms,
except those actually used in the commis*sion 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 in*fringed.” 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 de*fense 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 pre*vent 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 ques*tioned.” 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 main*tained 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.” 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 Hampshi “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 citi*zen
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 con*cealed 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.” 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 Legis*lature 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 wear*ing 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 peo*ple to keep and bear arms shall
not
be infringed; that stand*ing 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.” Art. III, § 22.
Wisconsin: “The people have the right to keep and bear arms
for
security, defense, hunting, recreation or any other lawful purpose.” 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.
[44] Thompson, Printz, Lopez.
[45] Contrast Justice Stevens’ view with that of Justice Blackmun in the
Lewis
case, infra; 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.
[46] 18 U.S.C. § 924(c)(1).
[47] United States v. Muscarello, 524 U.S. 125 (1998).
[48] 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 to reductions of rights.

Antonin Scalia, A Matter of Interpretation 43 (1997).

[49] Id. at 124-25 (Ginsburg, J., dissenting).
[50] Id. (footnotes omitted)(emphasis added).
[51] First: “[t]o support; to sustain; as, to bear a weight or burden” 2:
“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).
[52] In Young; Volokh, Sources.
[53] Id.
[54] Wills, Why We Have No Right
[55] Id. at
[56] Id. at
[57]During the Senate Judiciary Committee hearings on Ruth Bader Ginsburg’s
nomination to the Supreme Court, Senator Diane 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?
JUDGE 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?
JUDGE 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.
[58] 521 U.S.--, 117 S.Ct. 2365 (1997).
[59]
[60] 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 Supreme Court
Saves
Federalism, Geo. Mason Civ. Rights & Civ. Lib. L.J. (forthcoming).
[61]
[62]
[63] 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 - .
[64]
[65]
[66] Robertson v. Denver; Arnold v. Cleveland. For a discussion of these
cases,
see David Kopel, A Tale of Three Cities, Temple L Rev.
[67]
[68]
[69] See note .
[70]
[71] 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 degredation 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, Hamline J.
Pub. L.
& Pol.
[72] Albright v. Oliver, 510 U.S. at 307 (Stevens, J., dissenting)(footnote
marker omitted)(emphasis added).
[73] Infra.
[74] Infra at , , , .
[75] 505 U.S. 833 (1992).
[76] At 841.
[77] Infra.
[78]. 494 U.S. 259 (1990)
[79] 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. Amar,
The
Bill of Rights. 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. 116 U.S. 616.
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.
[80]. Id. at 265.
[81] Verdugo is of course a Fourth Amendment case, not a Second Amendment
case.
Henigan, at . But there is no reason to believe that the Court did not mean
what
it said about the Second Amendment in Verdugo.
Oddly, the some 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, Parade.
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 Sevent 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.
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? Johnson, supra. The 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. Supra.
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. New Mexico, Nevada, West Virginia, Wisconsin, supra.
But the Supreme Court has never recognized such a right, and its lone
decision
on the subject is to the contrary. Patsone v. Pennsylvania (ban on
possession of
hunting guns by aliens is legitimate, because the ban does not interfere
with
gun possession for self-defense; Second Amendment not discussed).
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 the
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), 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
which 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?
[82]
[83] Henigan 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.”

Henigan, HCI website. 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, supra. 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? 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.
[84] 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.”)
[85] Verdugo-Urquidez, at 287 (Brennan, J., dissenting).
[86] Lewis v. United States, 445 U.S. 55 (1980).
[87] 18 U.S.C. App. § 1202(a)(1).
[88] Lewis, at 57-58.
[89] Lewis, at 57-58, citing Gideon v. Wainright, 372 U.S. 335 (1963).
[90]
[91] Id. at 62-63, citing 114 Cong. Rec. 14773 (1968).
[92] Id. at 62.
[93] Powell v. Alabama, 287 U.S. 45 (1932).
[94]
[95] Lewis, at 66.
[96]. Lewis, at 55, n. 8
[97] supra.
[98] 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, simply because a buyer
could illegally assemble certain parts to create a short rifle).
[99] Stephen Halbrook, Firearms Law Deskbook 1-12 to 1-13 (1998 ed.)
[100]
[101] As in this quote from Cody, the First Circuit’s 1943 Cases decision is
sometimes cited as a lower court following Miller. 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.
[102] Cody, at 36.
[103]
[104]
[105] E.g., Cockrum v. State, 24 Tex. 394, 397 (1859).
[106] Aymette, supra (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).
[107] Moore v. East Cleveland, 431 U.S. 494 (1976).
[108] Id. at 496-97.
[109]
[110]
[111]. Moore v. East Cleveland, 431 U.S. at 502.
[112] 431 U.S. at 542 (White, J., dissenting).
[113] 1 Wm. & Mary sess. 2, ch. 2 (1689); Malcolm, supra.
[114] 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/volo...rces.htm#TOC1; David
Young,
The Origin of the Second Amendment.
[115] Young.
[116] Buzzard v. State (Ark. 1842).
[117] Kopel, The Second Amendment in the 19th Century, supra.
[118] Gary Kleck, Targeting Guns: Firearms and Their Control (1997).
[119] 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. A minority
line
of cases goes further, and protects weapons which could be useful for
personal
defense, even if not useful for militia service. E.g., State v. Kessler, 289
Or.
359, 614 P.2d 94 (1980)(billy club); State v. Delgado, 298 Or. 395, 692 P.2d
610
(1984)(switchblade knife).
[120] In one state, Massachusetts, the highest court has construed the right
as
belonging to the state government, rather than to individuals. In Hawaii, an
intermediate court of appeals has written that it is undecided whether the
state
constitutional right inheres in individuals or in the state government. In
Kansas, a 1905 case held that the right in the state constitution belonged
to
the state government, and not to the people; but this holding was implicitly
rejected in a later case. Junction City v. Meavis.
[121] John Lott, More Guns, Less Crime.
[122] Vermont; Idaho (outside Boise).
[123] Akhil Amar, The Bill of Rights (1998).
[124] Chicago Burlington & Quincy Railway (1897).
[125] “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.
[126]
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 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.

The MacNeil/Lehrer NewsHour, Mar.16, 1989, trans. no. #3389, Lexis
Transcripts
library.
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.
[127] 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, did serve on the Miller Court, and joined in the unanimous
decision.
[128]
[129] 410 U.S. 113 (1973).
[130] 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.
[131]
[132]
[133]
[134]
[135]
[136] 408 U.S. 1 (1972)
[137] 408 U.S. at 22-23, citing Earl Warren, The Bill of Rights and the
Military, 37 N.Y.U. L. Rev. 181, 185 (1962)(emphasis added).
[138] For the best analysis of how Madison synthesized two different
traditions
in the Second Amendment (the republican militia theory in the first clause,
and
the human rights theory in the second clause), see Hardy, supra, Harv. J. L.
&
Pol.
[139] Burton v. Sills, 394 U.S. 812 (1969).
[140] 53 N.J. 86, 248 A.2d 521
[141]
[142] Id. The decision was per curiam, with Justice Brennan not
participating.
Id.
[143] Mandel v. Bradley, 432 U.S. 173, 176 (1977).
[144] The New Jersey court in Burton could never be charged with excessive
regard for individual rights, for the court explained, “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, at A.2d. 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 (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.
[145]
[146]
[147]
[148]
[149] 391 U.S. 145 (1968).
[150] 391 U.S. at 166-67, quoting Cong. Globe, 39th Cong., 1st Sess., at
2765-66
(1866)(emphasis added).
[151] infra
[152] 378 U.S. 1 (1964).
[153] At 5 n. 2.
[154] Id.
[155]
United States v. Cruikshank, 92 U.S. 542, 551 (right to assemble);
Prudential
Ins. Co. v. Cheek, 259 U.S. 530, 543 (First Amendment); Weeks v. United
States,
232 U.S. 383, 398 (Fourth Amendment); Hurtado v. California, 110 U.S. 516,
538
(Fifth Amendment requirement of grand jury indictments); Palko v.
Connecticut,
302 U.S. 319, 328 (Fifth Amendment double jeopardy); Maxwell v. Dow, supra,
at
595 (Sixth Amendment jury trial); Walker v. Sauvinet, 92 U.S. 90, 92
(Seventh
Amendment jury trial); In re Kemmler, supra, [136 U.S. 436 (Eighth Amendment
cruel and unusual punishment, electrocution)] ; McElvaine v. Brush, supra;
O'Neil v. Vermont, 144 U.S. 323, 332 (Eighth Amendment prohibition against
cruel
and unusual punishment).

[Materials in brackets added.] Most of these cases have been undone by later
cases.
[156] 366 U.S. 36 (1961)
[157]
[158] See Frederick Schauer, [article on Fallon] at 433 n 52.
[159]
[160]
[161] 366 U.S. 36, 49-50 (emphasis added).
[162] Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865 (1960).
[163] Id. at 872.
[164] Id. at 873.
[165] Id. at 865.
[166] Poe v. Ullman, 367 U.S. 497 (1961).
[167]. Poe v. Ullman, 367 U.S. 497, 542-43 (1961)(Harlan, J.,
dissenting)(emphasis added).
[168]
[169]
[170] 165 U.S. 578.
[171] 291 U.S. 502.
[172] At 542.
[173] 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.
[174]
[175] 357 U.S. 371 (1958).
[176] 357 U.S. at 378-79.
[177] Johnson v. Eisengrager, 339 U.S. 763 (1950).
[178]
[179] 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).
[180] , 784 (emphasis added).
[181] 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. 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.
[182] 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, 71U.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),
Fifth Amendment (no criminal trials without due process), and 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 .
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 plainly 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 .
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 was whites-only, but this
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).
[183] U.S. Const. amend. V.
[184] 332 U.S. 46 (1947). Adamson was over-ruled by the Supreme Court in the
1964 decision Malloy v. Hogan.)
[185] at 89, citing Congressional Globe at 474.
[186] At 89, citing Cong. Globe 1266-67.
[187] 332 U.S. 46 , 104-07 (emphasis added).
[188] At 119.
[189] 332 U.S. at120.
[190] 124 (Murphy, J., dissenting).
[191]
[192] Stephen Halbrook cites the case, but for another point. Stephen
Halbrook,
Firearms Law Deskbook.
[193] Hamilton v. Regents, 293 U.S. 245 (1934).
[194] Id. at 250-51.
[195] At 260-61.
[196] For a discussion of this point, see Kates and Reynolds, Wm. & Mary L.
Rev.
Supra.
[197]
[198] Houston v. Moore, 5 Wheat. 1, 16-17. See infra.
[199] Dunne v. People, 94 Ill. 120 (1879).
[200] 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.
[201] Dunne, 94 Ill. at 132-33.
[202] Infra.
[203] Infra.
[204] Infra.
[205] United States v. Schwimmer, 279 U.S. 644 (1929)
[206] 279 U.S. at 650-52.
[207] Muscarello, supra
[208]
[209] E.g., Glenn H. Reynolds, Tenn. L. Rev.
[210] Stearns v. Wood, 236 U.S. 75 (1915).
[211] Id. at 76. Colonel would be the next rank up.
[212] Id. at 78.
[213] Id.
[214]
[215] 211 U.S. 78 (1908), overruled Malloy v. Hogan, 378 U.S. 1 (1964)
[216] 98-99.
[217] 176 U.S. 581 (1899).
[218] At
[219] This was led to the development of the Colt .45 caliber self-loading
pistols, since smaller pistol rounds too often had insufficient stopping
power
against the Filipino warriors.
[220] 199 U.S. 521, 528 (1905).
[221]
[222] 195 U.S. 100, 123-24 (1904).
[223]
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, 9, to the passage of
bills of attainder and ex post facto laws.
195 U.S. at 123-24.
[224] 165 U.S. 275, 281 (1897).
[225]165 U.S. at 281-82.
[226] Id. at 282.
[227] E.g., State v. Workman, 35 W. Va. 367 (1891). See generally, Kopel,
BYU
[228] Brown v. Walker, 161 U.S. 591 (1896).
[229] The Presser case, discussed infra, 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.
[230]
[231]
[232] at 365.
[233] Henigan, CPHV website.
[234]Miller v. Texas, 153 U.S. 535 (1894).
[235]
[236]
[237]Id. at .
[238]Id. at 538.
[239]Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897).
[240] 123 U.S. 31. See Paul Avrich, The Haymarket Tragedy (1986).
[241] John Randolph Tucker, The Constitution of the United States (Fred B.
Rothman & Co. 1981)(1899). See William G. Bean, John Randolph Tucker, in
Dictionary of American Biography.
[242]
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 original 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.

[243]
[244]
[245]
[246] Eilenbecker v. District Court v. 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.

[247]
[248] 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, (1892). The other argument came from the Attorney General in Ex
Parte
Milligan. Supra.
[249] 144 U.S. 263 (1892)
[250] 144 U.S. at 286-88.
[251] Levinson, supra; 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 (no. 4, 1999, forthcoming).
[252]116 U.S. 252, 265.
[253]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.”)
[254]Id. at 265.
[255]
[256]
[257]
[258] Fresno Rifle Club v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992).
[259]
[260]Id.
[261]Id.
[262]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...”
[263] Stephen Halbrook, Freedmen, Firearms, and the Fourteenth Amendment;
Eric
Foner, Reconstruction 258-59 (1988); Richard L. Aynes, On Misreading John
Bingham and the Fourteenth Amendment , 103 Yale L.J. 57 (1993).
Yale L. J..
[264]George C. Rable, But There Was No Peace: The Role of Violence in the
Politics of Reconstruction 125-29 (Athens: University of George Press,
1984).
[265]92 U.S. 542, at 551 (emphasis added.)
[266]Cruikshank 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. at
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.”)
[267] “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).
[268] Infra, various.
[269] DeJonge v. Oregon, 299 U.S. 353 (1937).
[270] 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.
Id.
at . 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. Id. at .
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, 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,a nd 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.
[271] Id. at 417.
[272] Id.
[273] E.g., Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
[274] Scott at 417.
[275] Act of Mar. 6, 1820, ch. 22, 8, 3 Stat. 545, 548.
[276] Scott, at 450.
[277] Scott, at 450-51.
[278] Id. at 399.
[279]E.g., Stephen Douglas, The Dividing Line Between Federal and Local
Authority: Popular Sovereignty in the Territories, Harper’s, Sept. 1859), at
519, 530.
[280] 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.”)
[281] 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).
[282] Downes, 182 U.S. at 379 (Harlan, J., dissenting).
[283] 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)
[284]
[285]Houston v. Moore, 5 Wheat. 1 (1820).
[286] “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.”
[287]
[288]U.S. Const. amend. X.
[289]Id. at .
[290]
[291]
[292]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).
[293]
[294]Id. at .
[295]The Supreme Court decided one other militia cause 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. Martin v. Mott, 12 Wheat. 19 (1827).
[296] Joseph Story, A Familiar Exposition of the Constitution of the United
States 264-65 (1842) For more Justice Story’s thoughts about the Second
Amendment see Kopel, The Second Amendment in the 19th Century, 1998 B.Y.U.
L.
Rev. at - .
[297] E.g. Henigan, Valparaiso.
[298] Kopel, BYU.
[299]
[300]
[301]
[302]
[303]
[304]
[305]
[306]
[307]
[308]
[309]
[310]
[311]
[312] 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. See supra. It might be reasonable to
read Justice Black’s Supreme Court opinions which mention the Second
Amendment
as reflecting his absolutist view. supra
[313] Supra.

David Moffitt wrote:

"Guido" wrote in message
...
snipped for brevity-------------------------------

Er. the language hasn't really changed on this. 'Regulated'
still means regulated, which is the participial adjective of
'Regulate':

To control, govern, or direct by rule, or regulation;
to subject to guidance or restriction; to adapt to
circumstances or surroundings.
refs from 1630


Guido you are an idiot. Please sive this for study the next time you decide
to be a hoplophobe.


Listen ****wit I don't give a damn about either the Supreme
Court, or the 2nd Ammendment. This sub-thread is simply
about the OED and the history of words.

I also notice that you are so ****ed up about the issue
though that you've taken to responding to automatic repliers
with 1000 line blogs too.

"David Moffitt" wrote in message
nk.net...

"Lady Chatterly" wrote in message
...

Your denial is embarrassingly pathetic.

You're pathetic. Go back to playing doctor with your animals.

--
Lady Chatterly

Damn another ignorant hoplophobe! Download and keep this article for
reference the next time you want to be stupid.

Ah, Dave..."Lady Chatterly" is a bot. You're arguing with a computer
program. g

Ed Huntress

On Sat, 27 Nov 2004 18:29:48 +0000, Guido wrote:

David Moffitt wrote:

"Guido" wrote in message
...
snipped for brevity-------------------------------

Er. the language hasn't really changed on this. 'Regulated'
still means regulated, which is the participial adjective of
'Regulate':

To control, govern, or direct by rule, or regulation;
to subject to guidance or restriction; to adapt to
circumstances or surroundings.
refs from 1630


Guido you are an idiot. Please sive this for study the next time you decide
to be a hoplophobe.


Listen ****wit I don't give a damn about either the Supreme
Court, or the 2nd Ammendment. This sub-thread is simply
about the OED and the history of words.

I also notice that you are so ****ed up about the issue
though that you've taken to responding to automatic repliers
with 1000 line blogs too.

Hardly a blog Guido. A rather well written, reseached legal
scholarship by a noted authority on the subject.

Or do you call Blackstone a blogger as well?

Gunner



Come shed a tear for Michael Moore-
Though he smirked and lied like a two-bit whore
George Bush has just won another four.
Poor, sad little Michael Moore

Diogenes

On Sat, 27 Nov 2004 17:29:19 GMT, yourname wrote:



PrecisionMachinisT wrote:
"Phillep" wrote in message
...

"PrecisionMachinisT" wrote


Redundant--you cant have the one without also having the other

anyways.....

Your lathe is "well regulated" only because there's some federal law
requiring it to stay in adjustment?

In this case, the "well regulated militia" means the able bodied men of a
community who have done "paramilitary drills" together.



actually the word militia ,when used in the Constitution refers only to
state run bodies. Exclusively. As in ther is no mention of private
miliitisa in the Constitution.

Wrong. As mentioned in the Constitution, it makes no distinction
between state, private or local groups.

I suggest you take a look at US Code Title 10 for the composition of
the Militia...which is stated to be all citizens, and those intending
to be citizens, except for select politicians, are members of the
militia. It makes no mention of state, federal or local
jurisdictions. As was noted previously, the Civil War was a prime
example of many privately armed, trained and supplied groups who
offered their services to the US and Confederate governments. Hence
the rather wild hodgepodge of uniforms, colors and accouterments that
one finds when reviewing Civil War photos and unit histories.

Im sure you are aware, that the National Guard..was formed in 1907,
are you not? So that body was not in existence at the time of the
Founders, nor were any other similar organizations.

Gunner



Come shed a tear for Michael Moore-
Though he smirked and lied like a two-bit whore
George Bush has just won another four.
Poor, sad little Michael Moore

Diogenes

On Sat, 27 Nov 2004 18:05:35 GMT, "David Moffitt"
wrote:

Your denial is embarrassingly pathetic.

You're pathetic. Go back to playing doctor with your animals.

--
Lady Chatterly

Damn another ignorant hoplophobe! Download and keep this article for
reference the next time you want to be stupid.

A CRITICAL GUIDE TO THE SECOND AMENDMENT[

Chuckle..wonderful cite, however Lady Chatterly is an automated bot.
Might wish to put her in the kill file.

G

Gunner



Come shed a tear for Michael Moore-
Though he smirked and lied like a two-bit whore
George Bush has just won another four.
Poor, sad little Michael Moore

Diogenes

Gunner wrote:

On Sat, 27 Nov 2004 18:29:48 +0000, Guido wrote:

Listen ****wit I don't give a damn about either the Supreme
Court, or the 2nd Ammendment. This sub-thread is simply
about the OED and the history of words.

I also notice that you are so ****ed up about the issue
though that you've taken to responding to automatic repliers
with 1000 line blogs too.


Hardly a blog Guido. A rather well written, reseached legal
scholarship by a noted authority on the subject.

Or do you call Blackstone a blogger as well?


OK but link to the piece don't post 3616 of stuff that is so
badly formatted its unreadable.

However I stand by the rest of it.

Gunner wrote:


Or do you call Blackstone a blogger as well?


On second thoughts he does seem to be a blogger who just
happens to be a law professor.

In most instances these law professors are wrong, its only
when the courts accept their writing as correct that they do
indeed become so. Which are the precedent and opinion books
that your SC accepts? Is Prof. Reynold's the author of any
of them?

I'll save the trouble of finding out: the answer is NO.

Apart from the 36pp pamphelet that got posted here
(currently out-of-print presumably because it has been
stolen and posted here there and everywhere) and some
science fiction book, he has one student text on "Space Law"
and is the co-author of a book on ethics in business and
government.

Accepted constitutional lawyer he aint.

On Sat, 27 Nov 2004 00:45:52 -0500, "Ed Huntress"
calmly ranted:

"Larry Jaques" wrote in message

What freedom do they give up by purchasing 20-rounders, sir?

Well, that's an interesting question, and we'd have to get into the
consequences of living with a bunker mentality to get into it. But I doubt
if we'd reach any agreement on the subject.

Bunker mentality? Geeze, Ed. Most people think about these things
ONLY when they're thinking about purchasing things like these.
I don't dwell upon potentialities (your fantasies). Do you plan
your day, or vacations, or how you want to remodel your house?
Do you buy health/car/house/appliance/life insurance? That's all
this is. A quick run-through goes like this:

I go hiking in places inhabited by wild animals (cougars, bears), a
few pot growers, and other wild things.

Do I need a gun for protection? Probably.

Large or small? What do police use? OK, 9mm works for me. It's very
common (found ammo in worst-case-scenario, WCS.) The Keltec P11 is
small, lightweight, reliable, and inexpensive.

Do I need extra magazines? Probably not but they're inexpensive and
handy in a WCS.

What's available? 10 and 15-rd, with 15-rd cheaper. OK, I bought a
couple.

Could it be used for any other purpose? Yes, home defense from
burglars and wandering crazies/perps.

What else do I need? Training and a box or two of cartridges.

DONE! Now I'm "insured". Is this crazy, Ed?


And which **** and fan are we discussing here, Larry? The Whiskey Rebellion,
or Shay's?

What part of a "When" hypothesis do you not understand? Or are you
optimistic enough to think that **** doesn't hit fans? (Let's hope
not.) I strongly doubt that everything for the rest of my life will
be rosy and I'll never see another setback. And I have strong feelings
that most of us will be touched by anarchy in our near future here in
the US (touched off by our "leader" and his religious crusades as he
attempts to build his monarchy.) I hope I'm wrong about both, but I'll
try to play it from a prepared position, thanks. 99% of my life won't
be changed at all (except for levies for that totally ineffectual crap
they refer to as our "homeland security"), so don't worry about me
coming down with that "bunker mentality" you mentioned. Look to our
leaders for that, and be prepared to lose more freedoms and pay for it
through the nose in the near future...if we don't allow bin Laden to
fully bankrupt us first. big sigh


I'm beginning to think that your entire philosophy is based on fantasies of
roving mobs swarming across your front lawn.

See my other post. Besides, what we discuss here doesn't rule
my life or take up my waking hours by a LOOOOOOONG shot.


Sometimes he's right. And, if you want to understand the politics of gun

Yes, it's his half-truths which make him believable in the first
place. I watched the first 40+ minutes of Bowling for Columbine
before picking up on his subtle twists.


control in the US, you first have to step back and see how you look to those
who would vote in ways you don't like. I'm not talking about HCI, but those
in the general population who might favor one gun-control law or another.

People who are led to that way of thinking by fear mongers who do
it for the entertainment or profit factor? (Fear sells papers and
ads on TV news, y'know.) That's how 10% of the population (HCIers,
etc.) have conned the people into thinking they're unsafe as long
as there is a gun out there, somewhere, and in police hands. sigh
True, I don't understand all the politics behind it and we're on
different enough tracks to agree, so I'll leave it here.


Most people aren't libertarian ideologues. That is to say, most of them do a
pretty good job, overall and in the long run, of sizing up the ideologues
and judging whether they're using their heads, or if their heads are using
them. They can sniff out a philosopher who's in love with his ideas. Most
people are pragmatists.

Most people are ruled more by momentum (or lack thereof) than by
pragmatism, Ed.


Speak for yourself, John. g

Hoo dat?

Peace.


--------------------------------------
PESSIMIST: An optimist with experience
--------------------------------------------
www.diversify.com - Web Database Development

On Sat, 27 Nov 2004 02:39:35 -0800, "PrecisionMachinisT"
wrote:

(snip)
No, its just that your a ****ing idiot............


And that sums up your "logical" argument quite logically.
(snip)

On Sat, 27 Nov 2004 17:02:56 +0000, Guido wrote:

(snip)
If you look careful you'll see that you didn't ask any
question of Cliff.

My questions have been open for anyone who wishes to claim there's some
imaginary standard of "need". Especially since the original poster seems to have
dropped the ball. Hardly surprising, since there IS no such standard except in
the fevered imagination of the gun grabbers.

"Gunner" wrote in message
...
On Sat, 27 Nov 2004 17:29:19 GMT, yourname wrote:



PrecisionMachinisT wrote:
"Phillep" wrote in message
...

"PrecisionMachinisT" wrote


Redundant--you cant have the one without also having the other

anyways.....

Your lathe is "well regulated" only because there's some federal law
requiring it to stay in adjustment?

In this case, the "well regulated militia" means the able bodied men of
a
community who have done "paramilitary drills" together.



actually the word militia ,when used in the Constitution refers only to
state run bodies. Exclusively. As in ther is no mention of private
miliitisa in the Constitution.

Wrong. As mentioned in the Constitution, it makes no distinction
between state, private or local groups.

Wrong. It makes no mention of them at all. It therefore defaults to the
states, or to the federal government, depending upon the time period you're
talking about and the particular authority you mean.

It's been that way since the Revolution, before there was a Constitution.
Then the Militia Act of 1795 began to clarify it. There is plenty of case
law and history to support the point.

But you won't find any authority, anywhere, for an "organized, unorganized
militia." g The states treated an unauthorized paramilitary organization
as an insurrection. In a couple of cases, they called out the militia to
supress it. d8-)

Ed Huntress

On Sat, 27 Nov 2004 14:22:41 GMT, Gunner wrote:


Ah...no. What Im telling you is that Regulated means working smoothly,
in good order, functioning correctly. Not under the control of a
governmental agency.

To a True Liberal(modern type) NOTHING can work smoothly without being under the
control of a governmental agency, though.
(snip)

"Guido" wrote in message
...
Gunner wrote:


Or do you call Blackstone a blogger as well?


On second thoughts he does seem to be a blogger who just
happens to be a law professor.

In most instances these law professors are wrong, its only
when the courts accept their writing as correct that they do
indeed become so. Which are the precedent and opinion books
that your SC accepts?

There's a heirarchy of "recognized authorities." Regarding the Bill of
Rights, at the top of the list is the transcript of the First Congress's
debates over the writing of the Bill. Since the Senate did not record its
debates, we have only those of the House. And, in regard to the 2nd, it is
not a favorite source for defenders of the 2nd Amendment. g

The 5th Circuit Court of Appeals is making a play to establish a broader
historical basis for interpretation of the 2nd. See the Emerson case, 5th
Circuit. It's 100 pages, heavily referenced, and an impressive piece of
work.

Whether the Supreme Court would accept the broad historical argument, in
favor of a more conventional one, based on traditional jurisprudence in the
handling of precedent and authority, is an interesting question. They would
if they wanted to make a broad statement and produce a landmark ruling --
even though such a ruling, like the Emerson ruling (which now is law in the
territory of the 5th Circuit only), has practically no effect on the states'
authority to control guns, because the 5th Circuit allowed a lot of latitude
for "compelling state interest."

Those cases are the products of very activist courts, not conservative ones.
So, in order to get a favorable ruling on the 2nd, Bush will have to appoint
some activists who are willing to make it up as they go along -- Justices in
the mold of Anton Scalia.

Is Prof. Reynold's the author of any
of them?

I don't think so. g


I'll save the trouble of finding out: the answer is NO.

Ed Huntress

Ed Huntress wrote:

"Guido" wrote in message
...

Gunner wrote:


Or do you call Blackstone a blogger as well?


On second thoughts he does seem to be a blogger who just
happens to be a law professor.

In most instances these law professors are wrong, its only
when the courts accept their writing as correct that they do
indeed become so. Which are the precedent and opinion books
that your SC accepts?


There's a heirarchy of "recognized authorities." Regarding the Bill of
Rights, at the top of the list is the transcript of the First Congress's
debates over the writing of the Bill. Since the Senate did not record its
debates, we have only those of the House. And, in regard to the 2nd, it is
not a favorite source for defenders of the 2nd Amendment. g


I thought there would be something like that. All the
discussion over words and their meaning are quiet frankly
useless when it comes to the law. The courts will have a set
meaning for each of the words, derived from their context.
Each phrase will be given greater or lesser weight, the
placement of the comma, semicolon, and colon given
particular significance. Argue as much as like about
alternative readings or interpretations: the law will have
but one.

So until you get a ruling all discussion is just **** and wind.

I don't think so. g

I didn't think he was a Blackstone.

On Sat, 27 Nov 2004 20:48:25 +0000, Guido wrote:

Gunner wrote:


Or do you call Blackstone a blogger as well?


On second thoughts he does seem to be a blogger who just
happens to be a law professor.

In most instances these law professors are wrong, its only
when the courts accept their writing as correct that they do
indeed become so. Which are the precedent and opinion books
that your SC accepts? Is Prof. Reynold's the author of any
of them?

I'll save the trouble of finding out: the answer is NO.

Apart from the 36pp pamphelet that got posted here
(currently out-of-print presumably because it has been
stolen and posted here there and everywhere) and some
science fiction book, he has one student text on "Space Law"
and is the co-author of a book on ethics in business and
government.

Accepted constitutional lawyer he aint.
Neither was Blackstone.

Gunner



Come shed a tear for Michael Moore-
Though he smirked and lied like a two-bit whore
George Bush has just won another four.
Poor, sad little Michael Moore

Diogenes

"Larry Jaques" wrote in message
...
On Sat, 27 Nov 2004 00:45:52 -0500, "Ed Huntress"
calmly ranted:

"Larry Jaques" wrote in message

What freedom do they give up by purchasing 20-rounders, sir?

Well, that's an interesting question, and we'd have to get into the
consequences of living with a bunker mentality to get into it. But I
doubt
if we'd reach any agreement on the subject.

Bunker mentality? Geeze, Ed. Most people think about these things
ONLY when they're thinking about purchasing things like these.
I don't dwell upon potentialities (your fantasies).

HUH? Aren't you the guy who started all of the fantasy stuff, asking what
one would do if a gang, or a horde, or something attacked you??

Is the 'ol memory slipping, Larry?

Do you plan
your day, or vacations, or how you want to remodel your house?
Do you buy health/car/house/appliance/life insurance? That's all
this is. A quick run-through goes like this:

I go hiking in places inhabited by wild animals (cougars, bears), a
few pot growers, and other wild things.

Do I need a gun for protection? Probably.

Large or small? What do police use? OK, 9mm works for me.

Wait, wait, wait. You're going to use a 9 mm for protection against bears?
It better be a really *little* bear, because if you shoot a big one with
that, and he finds out about it, you're going to be in a lot of trouble.

I'm getting the feeling you haven't killed a lot of animals with a gun. Am I
right? You might want to ask some of the people here who have hunted in
cougar country how you ought to approach the subject of "defending"
yourself. It involves looking up in every tree, and having that gun ready to
fire, in your hand. And then, you'll probably lose. They hunt by surprise,
and they've made a living at it.

Do I need extra magazines? Probably not but they're inexpensive and
handy in a WCS.

If you're defending yourself against animals, extra magazines are
irrelevant. While you're reloading, said animal will have your head in its
mouth. You aren't going to get off 20 shots, or 15 shots, or 10 shots. If
you get off three shots, you'll be lucky, and it will be a very weird
circumstance at that.

People who haven't done a lot of shooting tend to overestimate the value of
having a lot of shots available, and wildly underestimate the value of being
a good shot, and so well-trained that you do your thing automatically,
without thinking. What you need is to be a good shot and well-trained. More
shots won't help if you're not.


What's available? 10 and 15-rd, with 15-rd cheaper. OK, I bought a
couple.

Could it be used for any other purpose? Yes, home defense from
burglars and wandering crazies/perps.

What is it you're anticipating, getting into a firefight with a burglar? Do
you have heavily-armed crazies wandering around your neighborhood? If so,
the answer is simple: Find a better neighborhood. Bigger magazines are not
the answer.


What else do I need? Training and a box or two of cartridges.

A "box or two"? How many wandering crazies do you expect to encounter,
realistically?


DONE! Now I'm "insured". Is this crazy, Ed?

You're not insured. You've just bought yourself a false sense of security.
Training must be at the top of your list. Lots of training. Big magazines
are irrelevant, unless the Mongol hordes invade your homestead. If you have
reason to believe that's the case, an exception probably should be made for
you. But you'd be better off with some landmines or Claymores placed in
judicious locations. g


And which **** and fan are we discussing here, Larry? The Whiskey
Rebellion,
or Shay's?

What part of a "When" hypothesis do you not understand? Or are you
optimistic enough to think that **** doesn't hit fans? (Let's hope
not.)

Some **** hits fans. The trick is to have a realistic idea of what kind of
****, what kind of fan, and what you really need to do in order to deal with
it.

Frankly, you sound to me like somebody who has a modest exposure to guns,
and very little to killing large animals. It doesn't work like that. Big
magazines are not your answer.

I strongly doubt that everything for the rest of my life will
be rosy and I'll never see another setback. And I have strong feelings
that most of us will be touched by anarchy in our near future here in
the US (touched off by our "leader" and his religious crusades as he
attempts to build his monarchy.)

To me, that sounds like a serious paranoid fantasy.

I hope I'm wrong about both, but I'll
try to play it from a prepared position, thanks.

You aren't prepared. You just have a false sense of being prepared.

I'm beginning to think that your entire philosophy is based on fantasies
of
roving mobs swarming across your front lawn.

See my other post. Besides, what we discuss here doesn't rule
my life or take up my waking hours by a LOOOOOOONG shot.


Sometimes he's right. And, if you want to understand the politics of gun

Yes, it's his half-truths which make him believable in the first
place. I watched the first 40+ minutes of Bowling for Columbine
before picking up on his subtle twists.


control in the US, you first have to step back and see how you look to
those
who would vote in ways you don't like. I'm not talking about HCI, but
those
in the general population who might favor one gun-control law or another.

People who are led to that way of thinking by fear mongers who do
it for the entertainment or profit factor? (Fear sells papers and
ads on TV news, y'know.) That's how 10% of the population (HCIers,
etc.) have conned the people into thinking they're unsafe as long
as there is a gun out there, somewhere, and in police hands. sigh
True, I don't understand all the politics behind it and we're on
different enough tracks to agree, so I'll leave it here.

It appears to me that another 10% of the population has conned *you*.

See if you can catch Gunner in an objective moment, and talk to him about
defending yourself against cougars and bears with a 9 mm handgun, and the
relative value of having a lot of training with a gun in defense mode,
versus having a big magazine and a couple of boxes of ammo in your pocket.
That is, if he can be realistic, about real scenarios, and not go off on a
tangent with you about invading Mongol or Muslim hordes. g

Ed Huntress

On Sat, 27 Nov 2004 17:09:05 -0500, "Ed Huntress"
wrote:


Wrong. It makes no mention of them at all. It therefore defaults to the
states, or to the federal government, depending upon the time period you're
talking about and the particular authority you mean.

Wrong again..have you forgotten the 10Th Amendment?

"powers not granted to the United States were reserved to the States
or to the people."

Since the States were not mentioned as sole controllers of the
militias...nor was the Federal government, and both the States and the
Federals could draw on the militia...it would appear the militia is a
pool under no ones organization. It is is in the perview of the States
to pick officers, and to provide training, but thats pretty much it
until it is called to action.


It's been that way since the Revolution, before there was a Constitution.
Then the Militia Act of 1795 began to clarify it. There is plenty of case
law and history to support the point.

The Militia Act of 1795 also required that each State enroll every
person between the age of 18 and 45 in the militia and to provide
training and musters. Since that has fallen by the wayside, it would
appear that the States have no interest in the militia per se, and
then the duty would fall back on the individuals as desired.

But you won't find any authority, anywhere, for an "organized, unorganized
militia." g The states treated an unauthorized paramilitary organization
as an insurrection. In a couple of cases, they called out the militia to
supress it. d8-)

The States treated an unauthorized paramilitary organization in
rebellion or revolt, or in violation of the laws of good order as an
insurrection. And indeed they called out the rest of the militia to
repair the criminal or rebellious actions, not the formation of said
unauthorized militia.

The various Colorado mining strikes are of particular example.


Gunner

Ed Huntress




Come shed a tear for Michael Moore-
Though he smirked and lied like a two-bit whore
George Bush has just won another four.
Poor, sad little Michael Moore

Diogenes

Gunner wrote:

On Sat, 27 Nov 2004 20:48:25 +0000, Guido wrote:


Accepted constitutional lawyer he aint.

Neither was Blackstone.


No he was the guy that transform the teaching of law in the
UK and the colonies. The one that first consolidate English
common law into a unified system.

Compare and contrast:
http://www.amazon.com/exec/obidos/tg...030156-5054218

with:
http://www.amazon.com/exec/obidos/tg...030156-5054218

"Gunner" wrote in message
...
On Sat, 27 Nov 2004 17:09:05 -0500, "Ed Huntress"
wrote:


Wrong. It makes no mention of them at all. It therefore defaults to the
states, or to the federal government, depending upon the time period
you're
talking about and the particular authority you mean.

Wrong again..have you forgotten the 10Th Amendment?

"powers not granted to the United States were reserved to the States
or to the people."

Since the States were not mentioned as sole controllers of the
militias...nor was the Federal government, and both the States and the
Federals could draw on the militia...it would appear the militia is a
pool under no ones organization. It is is in the perview of the States
to pick officers, and to provide training, but thats pretty much it
until it is called to action.

Thank you, professor Gunner. g I'll just tell you what any law professor
or Constitutional authority will tell you: You're full of ****.

Find us some legal opinion to back that up, please. You may want to start
with Houston v. Moore (1820):

"The power of Congress over the militia 'being unlimited, except in the two
particulars of officering and training them . . . it may be exercised to any
extent that may be deemed necessary by Congress. . . . The power of the
state government to legislate on the same subjects, 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 . . .'''

{from FindLaw annotations of Article 1 of the Constitution, Clauses 15 and
16 (the Militia), quoting from "Houston."}


The Militia Act of 1795 also required that each State enroll every
person between the age of 18 and 45 in the militia and to provide
training and musters.

Under STATE control.

Since that has fallen by the wayside, it would
appear that the States have no interest in the militia per se, and
then the duty would fall back on the individuals as desired.

Keep your day job, Gunner. 8-)

Ed Huntress

In article , Ed Huntress says...

People who haven't done a lot of shooting tend to overestimate the value of
having a lot of shots available, and wildly underestimate the value of being
a good shot, and so well-trained that you do your thing automatically,
without thinking. What you need is to be a good shot and well-trained. More
shots won't help if you're not.

The "spray and pray" approach to life. Works best wtih real large magazines.
What I *don't* get is the fact that the magazine wars are ignoring a
pivotal fact - that one can swap out a magazine in seconds. They're
designed to change out fast.

The range where we shoot has a 5-shot limit, you only load 5 shots
at a time. My daughter lines up the magazines, each with five
rounds in them - and can shoot about 50 rounds with a bolt action
in the time it takes me to load and fire 15 rounds from a lever
gun with a tubular magazine.

I still think the hmong guy in WI could have done the same job
just as well with a lever gun in 30-30.

Jim


--
==================================================
please reply to:
JRR(zero) at pkmfgvm4 (dot) vnet (dot) ibm (dot) com
==================================================

"Guido" wrote in message
...
David Moffitt wrote:

"Guido" wrote in message
...
snipped for brevity-------------------------------

Er. the language hasn't really changed on this. 'Regulated'
still means regulated, which is the participial adjective of
'Regulate':

To control, govern, or direct by rule, or regulation;
to subject to guidance or restriction; to adapt to
circumstances or surroundings.
refs from 1630


Guido you are an idiot. Please sive this for study the next time you
decide
to be a hoplophobe.


Listen ****wit I don't give a damn about either the Supreme
Court, or the 2nd Ammendment. This sub-thread is simply
about the OED and the history of words.

I also notice that you are so ****ed up about the issue
though that you've taken to responding to automatic repliers
with 1000 line blogs too.

%%%% (snicker) Bite me bitch. )