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Contrary Evidence To Waxman Letter

Saturday, October 23, 1999

Solicitor General Seth P. Waxman issued a letter on August 22, 2000, stating that the Second Amendment does not protect an individual right. The letter only tells part of the story. It mainly cites old cases, several Supreme Court cases that are cited are misinterpreted and recent cases supporting a contrary view are ignored. Below is the evidence that contradicts his letter, you be the judge.(Click here to see the letter.)

United States v. Miller, 307 U.S. 174 (1939). The court refused to take judicial notice that a short-barrelled shotgun was useful for militia purposes. Nowhere did the court hold that an individual does not have a right to keep and bear arms. Miller has been interpreted as protecting an individual right to bear arms.

Presser v. Illinois, 116 U.S. 252 (1886). The court held that Bill of Rights restrains Congress and not the states. This was a preincorporation case. Nowhere did the court hold that an individual does not have a right to keep and bear arms.

The U. S. Supreme Court has recently recognized the Second Amendment as an important individual right. Planned Parenthood v. Casey, 112 S.Ct. 2791, 2805, 120 L.Ed.2d 674, 696 (1992); United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1991). These two cases were ignored.

The most recent case Waxman cites from a lower court is United States v. Hale, 978 F.2d 1016 (8th Cir. 1992). He ignores the special concurring opinion supporting an individual right to bear arms. He also ignores the dissent in United States v. Atlas, 94 F.3d 447 (8th Cir. 1996) (per Judge Arnold: "possession of a gun, in itself, is not a crime. Indeed, though the right to bear arms is not absolute, it finds explicit protection in the Bill of Rights").

The second most recent case Waxman cites is Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982). He ignores the dissenting opinion.

He ignores recent favorable opinions. For example, in United States v. Steven Paul Gomez, 1996 U.S. App. LEXIS 7815 at *10 n. 7, Judge Kozinski opined that "The Second Amendment embodies the right to defend oneself and one`s home against physical attack." United States v. Hutzell, ____ F.3d ____ (8th Cir. July 5, 2000): "Although an individual`s right to bear arms is constitutionally protected, see United States v. Miller, 307 U.S. 174, 178-79 (1939), the possession of a gun, especially by anyone who has been convicted of a violent crime, is nevertheless a highly regulated activity, and everyone knows it."

Even Laurence H. Tribe, the influential modern liberal constitutional law expert at Harvard Law School, who personally opposes the right to bear arms, admits the following:

Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist/republican/federalism one. Its central object is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather, the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by sec. 1 of the Fourteenth Amendment against state or local government action. Laurence H. Tribe, I AMERICAN CONSTITUTIONAL LAW 901-02 n.221 (Foundation Press 2000).

For more information about the Second Amendment see:

The Second Amendment & The United States Supreme Court

Our 2nd Amendment - The Original Perspective

"The Arms Of All The People Should Be Taken Away"

Madison & the Bill of Rights


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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.