The Second Amendment- Part Three: Court Interpretations

In Part One of this superlative series we explored the definition of “the militia” at the time that the Second Amendment was written and discovered that it referred to all citizens capable of bearing arms. In the equally brilliant Part Two we further examined how the Second Amendment refers to an individual right to keep and bear arms. Now we’ll examine how the Supreme Court has interpreted the Second Amendment through the years.

There are two things that gun-prohibitionists always say about the Second Amendment as interpreted by the Supreme Court. One is that the Supreme Court has never overturned a gun law on Second Amendment grounds and the other is that, in the case of U.S. v. Miller, the Supreme Court declared that the Second Amendment only applied to the right of states to arm their National Guard. One of those statements is true and the other is a lie.

Lets start with the lie. The case of U.S. v. Miller is often referred to by anti-gun activists as confirming their collectivist “National Guard” interpretation of the Second Amendment. It is the only Supreme Court case where they ruled upon the Second Amendment per se. In this 1939 case two suspected moonshiners were charged with violating the National Firearms Act of 1934 (NFA) by transporting an unlicensed sawed-off shotgun across state lines. In Miller the Supreme Court said that the NFA could stand constitutional muster. The court concluded:

"In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] 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... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." [Emphasis added.]

That’s hardly a rejection of the individual rights interpretation. It should be noted that although neither of the men involved were members of the National Guard, the court never even brought that fact up. Far from declaring that common citizens don’t have a right to bear arms, you could interpret the decision as meaning that individuals have a right to own military-style weapons only.

However you interpret the Miller decision, it’s important to note that the Supreme Court rendered its decision without ever hearing the defense’s argument. Neither the defendants nor their legal counsel appeared at the U.S. Supreme Court to argue their case. That’s why the court prefaced its decision with, "In the absence of any evidence…[.]” The lead defendant Jack Miller was found shot to death shortly before he could testify before the court and the other defendant, Frank Layton, quickly accepted a plea deal. The only argument presented to the court was by the government defending its own gun law!

While Miller was the only Supreme Court ruling on the Second Amendment itself, the Court has mentioned the Second Amendment peripherally in several other cases. In Dred Scott v. Sandford, for instance, the court debated whether or not blacks were citizens. The Court contended that if they were, they would be accorded the same constitutional rights as white citizens, including the right to keep and bear arms.

Scott v. Sandford:

"It would give to persons of the negro race... the right to enter every other State whenever they pleased,... and it would give them full liberty of speech...; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

"Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding."

In U.S. v. Cruikshank the Court ruled that the First and Second Amendments were protections against the federal government only, not state governments. In Presser v. Illinois the court ruled that a state law that prohibited civilians from drilling or parading with arms in cities or towns "[did] not infringe upon the right of the people to keep and bear arms."

Presser v. Illinois:

"States cannot... prohibit the people from keeping and bearing arms, as so 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."

In Miller v. Texas the Court ruled that the Second and Fourth Amendment did not limit state action. Thereby, states may pass laws prohibiting the carrying of firearms in some ways. While discussing the 13th Amendment in Robertson v. Baldwin, the Court recognized the Second Amendment as a "fundamental" individual right.

In Lewis v. U.S. the Court ruled that convicted felons can be deprived of many fundamental rights, including the right to keep and bear arms. During Moore v. City of East Cleveland the court listed the Second Amendment right to keep and bear arms with the other individual rights protected by the Bill of Rights, "the freedom of speech, press and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures…[.]"

U.S. v. Verdugo-Urquidez:

"'The people' seems to have been a term of art employed in select parts of the Constitution... [and] it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are a part of a national community or who have otherwise developed sufficient connection with this country to be considered part of the community."

While the Supreme Court hasn’t ruled directly on the Second Amendment in nearly 70 years, there are two recent lower court decisions that give freedom-lovers hope. In 2001, the U.S. Court of Appeals for Fifth Circuit ruled that the Second Amendment was indeed an individual right in U.S.v Emerson.

U.S. v. Emerson:

"All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans. We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training. We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with [U.S. v.] Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms..."

The Supreme Court refused to hear an appeal of the case. Anti-gunners tried to spin that fact by implying that the individual rights interpretation of the Fifth Circuit was so ridiculous that the Supreme Court didn’t even want to hear it. However, by not hearing the appeal, the Supreme Court allowed the Emerson decision to stand as legal precedent within the Fifth Circuit. If the high court disagreed with the lower court’s decision so much, they no doubt would have taken the opportunity to strike down the decision.

More recently, in March of 2007, the U.S. Court of Appeals for the District of Columbia Circuit struck down D.C.’s 32 year old ban on handguns as a violation of the Second Amendment in Parker, et al. v. District of Columbia.

Parker, et al. v. District of Columbia:

“To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.”

Desperate to keep their policy of victim disarmament, the nations murder capital appealed the case to the Supreme Court. If the Supremes agree to hear the case, it may be the our best chance to get a fair ruling on the Second Amendment in quite some time. Stay tuned.

Now that we’ve established that the Second Amendment does, in fact, protect an individual right for citizens to keep and bear arms, in the next installment of this masterfully written and provocative series we’ll see why that right is necessary.