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The Second Amendment & The U.S. Supreme Court

Thursday, May 4, 2000

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.


By Stefan B. Tahmassebi

Despite anti-gunners' claims that the Second Amendment is a "collective right," the U.S. Supreme Court has recognized it as an individual right in several landmark cases.

Gun prohibitionists often claim that the United States Supreme Court has held that the Second Amendment does not guarantee an individual right to keep and bear arms, but offers only a "collective right" for the organized military forces of the states to have governmentally owned arms. This "Collective Rights" approach is a newcomer to theories of constitutional law and made its first appearance only in the Twentieth Century. Not only does the "Collective Rights" approach run counter to overwhelming textual and historical evidence, but the Supreme Court has never held such a theory applicable to the Second Amendment.

Dred Scott v. Sandford was the first case in which the Supreme Court mentioned the right to keep and bear arms. The issue before this pre-Civil War and pre-emancipation court was whether blacks were "citizens." The court stated that if blacks were citizens, they would have the same constitutional protections afforded to white citizens, which included the right to keep and bear arms.

"It would give to persons of the negro race . . . the right to enter every other State whenever they pleased, . . . and it would give them the full liberty of speech . . . ; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." The court specifically placed the right to keep and bear arms in the same category as the other fundamental individual rights that are protected from governmental infringement by the Bill of Rights: "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."

Nowhere in the opinion does the court suggest that the right to keep and bear arms differs from other fundamental rights and protects only the state government's organized military. Clearly, the court considered the right to keep and bear arms as a fundamental individual right of every "citizen."

United States v. Cruikshank, a post-Civil War and post-emancipation case, arose out of the disarmament and murder of freed blacks in Louisiana (the "Colfax Massacre"). Klansmen were subsequently charged by the federal prosecutor with a conspiracy to prevent blacks from exercising their civil rights, including the right of peaceful assembly and the right to keep and bear arms. The court recognized that the right to peacefully assemble and the right of the people to keep and bear arms were natural rights which even preexisted the Constitution.

The court stated, however, that the First and Second Amendment rights were protections against the federal government only, and did not restrict state government action. The court held that because these fundamental rights existed independently of the Constitution, and because the First and Second Amendments guaranteed only that these rights shall not be infringed by the federal Congress, the federal government had no power to punish a violation of these rights by the Klansmen, who were private individuals. Although the Second Amendment protected a citizen from having his right to keep and bear arms violated by the federal government, the Second Amendment did not protect a citizen from the acts of other private persons.

Clearly, the court considered the right to keep and bear arms (and the right to peaceably assemble) as a fundamental individual civil right of each citizen, which the federal government could not infringe. The court never even suggested that the Second Amendment guaranteed only a state's right to maintain militias rather than an individual citizen's right to keep and bear arms.

Presser v. Illinois involved an Illinois statute which did not prohibit the possession of arms, but merely prohibited "bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law . . . ." Presser was indicted for parading a private military unit of 400 armed men through the streets of Chicago without a license. The court concluded that the Illinois statute did not infringe the Second Amendment since the statute did not prohibit the keeping and bearing of arms but rather prohibited the forming of private military organizations and the performance of military exercises in town by groups of armed men without a license to do so. The court found that such prohibitions simply "do not infringe the right of the people to keep and bear arms."

The Supreme Court seemed to affirm the holding in Cruikshank that the Second Amendment protected individuals only against action by the federal government. However, in the very next paragraph, the court suggests that state governments cannot forbid individuals to keep and bear arms. After stating that "all citizens capable of bearing arms" constitute the "militia," the Court held that the "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 defendant challenged a Texas statute on the bearing of pistols as violative of the Second, Fourth, and Fourteenth Amendments. The problem for Miller was that he failed to timely raise these defenses in the state trial and appellate courts, raising these issues for the first time in the U.S. Supreme Court. While the court held that the Second and Fourth Amendment (prohibiting warrantless searches), of themselves, did not limit state action (as opposed to federal action), the court did not address the defendant's claim that these constitutional protections were made effective against state government action by the Fourteenth Amendment, because Miller did not raise these issues in a timely manner. The Court, thus, left open the possibility that these constitutional rights were made effective against state governments by the Fourteenth Amendment. Lastly, it should be noted that in this case, as in the other Supreme Court cases, the defendant was not a member of the Armed Forces, and yet the Supreme Court did not dismiss Miller's claim on that ground; thus, Miller, as a private citizen, did enjoy individual Second Amendment protection, even if he was not enrolled in the National Guard or Armed Forces.

Robertson v. Baldwin did not involve a Second Amendment claim, but in discussing the 13th Amendment, the Court again recognized the Second Amendment as a "fundamental" individual right of citizens; which, like the other fundamental rights, is not absolute. "The law is perfectly well settled that the first 10 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 guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. . ." . Thus, the freedom of speech and of the press (Article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Article 2) is not infringed by laws prohibiting the carrying of concealed weapons . . . .

The reference to state laws that prohibited the carrying of concealed weapons by individuals suggests that the Supreme Court viewed the Second Amendment as being a protection for individual citizens against not only interference by the federal government but also against interference by state governments. U.S. v. Miller was the first case in which the Supreme Court addressed a federal firearms statute which was being challenged on Second Amendment grounds. The defendants, who had been charged with interstate transportation of an unregistered sawed off shotgun, challenged the constitutionality of the federal government's National Firearms Act of 1934 ("NFA"). The NFA, a tax statute, did not ban any firearms, but required the registration of, and imposed a $200 transfer tax upon, fully automatic firearms and short barreled rifles and shotguns. The federal trial court held that the NFA violated the defendants' Second Amendment rights. After their victory in the trial court, defendant Miller was murdered and defendant Layton disappeared. Thus, when the U.S. government appealed the case to the U.S. Supreme Court, no written or oral argument on behalf of the defendants was presented to the Supreme Court.

Gun prohibitionists often cite this case for the proposition that the court held that the Second Amendment only protected the right of the states' National Guard to have government issued arms (i.e., the "Collective Rights" theory). This is an untruth. In fact, the court held that the entire populace constituted the "militia," and that the Second Amendment protected the right of the individual to keep and bear militia type arms.

Recounting the long history of the "militia" in the colonies and the states, and the Constitutional Convention, the court stated that these "show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense."

The court also made clear that it was the private arms of these men that were protected. (O)rdinarily 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." Recounting the origins of this all inclusive "militia," the court quoted historian H.L. Osgood: "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms . . .". The court referred to various colonial militia statutes which required the individual ownership of arms and ammunition by its citizens. In setting forth this definition of the militia, the court implicitly rejected the "Collective Rights" view that the Second Amendment guarantees a right only to the organized military forces of the states.

The court held that the defendants' right to possess arms was limited to those arms that had a "militia" purpose. In that regard, it remanded the case to the trial court for an evidentiary hearing on whether or not a short barreled shotgun has some reasonable relationship to the preservation or efficiency of the militia. Thus, in order for a firearm to be constitutionally protected, the court held, the firearm should be a militia type arm.

But the court did not require that Miller and Layton (neither of whom were members of the National Guard or Armed Forces) be members of the National Guard or Armed Forces in order to claim Second Amendment protection. Nor did the Supreme Court remand the case for the trial court to determine whether Miller and Layton were members of the National Guard or Armed Forces. Clearly, under the court's ruling, Miller and Layton had a right to claim individual Second Amendment protection, even if they were not members of the National Guard or Armed Forces. Thus, the case stands for the proposition that "the people," as individuals (not the states), had the constitutionally protected Second Amendment right to keep and bear any arms that could be appropriate for militia-type use.

Lewis v. United States involved a Fifth Amendment challenge to the federal law prohibiting the possession of firearms by convicted felons. The court noted that convicted felons are subject to the loss of numerous fundamental rights, including the right to vote, hold office, etc. The court thus found that this federal prohibition was not violative of the Fifth Amendment. In a footnote, the Court, citing United States v. Miller, reaffirmed that a firearm, in order to be constitutionally protected, must have a militia-type purpose. As in the Miller case, the court did not hold that a person must be a member of the Armed Forces in order to assert Second Amendment protections.

A number of recent United States Supreme Court cases have referred to the Second Amendment as a fundamental individual right. In Moore v. City of East Cleveland, a Fourteenth Amendment due process case, the Supreme Court put the right to keep and bear arms in company with other individual rights guaranteed 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 . . . .". In Planned Parenthood of Southeastern Pa. v. Casey, an abortion case, the Supreme Court again quoted Justice Harlan's above noted list of individual rights.

In United States v. Verdugo-Urquirdez, a Fourth Amendment case, the Supreme Court interpreted the meaning of the term "the people" in the Bill of Rights. The court stated that the term "the people" in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth, and Ninth Amendments. In other words, the term "the people" means at least all citizens and legal aliens in the United States. This case thus makes clear that the Second Amendment is an individual right that applies to individual law-abiding Americans.

Contrary to the assertion of the gun prohibitionists, the Second Amendment protects the same "people" as the other rights guaranteed in the Bill of Rights; namely you and me. This, of course, is entirely in keeping with the intent of the drafters of the Bill of Rights and also the Supreme Court's interpretation of the individual rights guaranteed in the Bill of Rights.


This article first appeared in the May 2000 American Rifleman.

Stefan B. Tahmassebi is currently the Deputy General Counsel of the National Rifle Association of America, where he has worked for over 10 years. He came to the NRA after practicing law in a Washington D.C., area law firm. He earned his Juris Doctorate from Georgetown University and his B.A. from the University of Virginia, with a major in History, a Major in German Language and Literature, and a Minor in Foreign Affairs. Mr. Tahmassebi was born in Dusseldorf, Germany, and emigrated to the United States at age 10. He has authored numerous legal articles such as, "Gun Control and Racism," which appeared in the George Mason University Civil Rights Law Journal.

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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.