Interpreting the Second Amendment

United States v. Cruikshank, 92 U.S. 542 (1875) – A post Civil War era case relating to the Ku Klux Klan depriving freed slaves basic rights such as freedom of assembly and the right to bear arms. The court ruled the application of the First and Second Amendments “was not intended to limit the powers of the State governments in respect to their own citizens” and “has no other effect than to restrict the powers of the national government,” respectively. In summary, it ruled the federal government could not file charges against citizens in federal court regarding violations of other citizens’ constitutional rights. It was up to the states to protect the fundamental rights of its citizens when their rights were abridged by other citizens.

Presser v. Illinois, 116 U.S. 252 (1886) – This second post-Civil War era case related to the meaning of the Second Amendment rights relating to militias and individuals. The court ruled the Second Amendment right was a right of individuals, not militias, and was not a right to form or belong to a militia, but related to an individual right to bear arms for the good of the United States, who could serve as members of a militia upon being called up by the Government in time of collective need. In essence, it declared, although individuals have the right to keep and bear arms, a state law prohibiting common citizens from forming personal military organizations, and drilling or parading, is still constitutional because prohibiting such personal military formations and parades does not limit a personal right to keep and bear arms:

The Court also noted that the Second Amendment only restrained the federal government from regulating gun ownership, not the individual states:

  • United States v. Miller, 307 U.S. 174 (1939) – The Court stated in part:
  • District of Columbia v. Heller, 554 U.S. 570 (2008) – The Court ruled the Second Amendment to reference an individual right, holding:
  • McDonald v. City of Chicago, 561 U.S. 742 (2010) – The Court ruled that the Second Amendment was incorporated against state and local governments, through the Due Process Clause of the Fourteenth Amendment.[2]

In the decision, the Court said:

  • Caetano v. Massachusetts, 577 U.S. ___ (2016) – The Court ruled that the Second Amendment extends to all forms of bearable arms:
  • New York State Rifle & Pistol Association Inc. v. City of New York, New York (2019) – The Court has agreed to hear oral argument sometime in 2019. The case is regarding a New York City law that forbids the transfer of unloaded and locked firearms from one’s residence to anywhere other than one of seven shooting ranges within the city.

Mentioning the Second Amendment

Dred Scott v. Sandford, 60 U.S. 393 (1857)

The court ruled Scott did not enjoy the protection of the Bill of Rights because of his racial background. However, in its ruling, it implies all free men do have the right to bear arms by indicating what would happen if he was indeed afforded full protection:

Duncan v. Louisiana, 391 U.S. 145 (1968)

A Supreme Court case which incorporated the Sixth Amendment right to a jury trial at the state level as required by the Fourteenth Amendment. In a concurring opinion by Justice Hugo Black, he used a statement by Senator Howard, who introduced the Fourteenth Amendment, to help validate the Court’s ruling that the Bill of Rights as a result of the Fourteenth Amendment forces states, and not just the federal government, to protect the same individual rights enumerated in the Bill of Rights:

Lewis v. United States, 445 U.S. 55 (1980)

Ruling that the Congress may prohibit felons from possessing firearms:

United States v. Verdugo-Urquidez 494 U.S. 259 (1990) – A case dealing with nonresident aliens and the Fourth Amendment, but led to a discussion of who are “the People” when referred to in the Constitution:

Firearm Owners Protection Act Court Rulings

Farmer v. Higgins (11th Cir. 1990)] – United States Court of Appeals for the Eleventh Circuit ruling ATF does not need to register new machine guns for private ownership under the exception of 18 USC 922(o)(A)(1).

United States v. Warner (10th Cir. 1993)[7]United States Court of Appeals for the Tenth Circuit ruling regarding Mr. Warner, who was caught in Utah with a machine gun and convicted on 922(o), possession of a machine gun. Mr. Warner appealed on the basis the Utah constitution allows its citizens to bear arms, and therefore he is exempt based on 922(o)(2)(A), “under authority of the State.” However, the court overruled this, citing the Farmer case saying machine guns were not meant to be in private hands, and although the Utah law gives permission to own automatic firearms, it did not grant him authority.

United States v. Rock Island Armory (1991) – United States District Court for the Central District of Illinois ruling one cannot be prosecuted for 1934 National Firearms Act violations for machine guns produced after 1986:

Commerce Clause Challenges to Firearm Laws

United States v. Lopez, 514 U.S. 549 (1995) – In the first Supreme Court case, since the New Deal, to set limits on the Congress’s power under the Commerce Clause, the Court declared the Gun-Free School Zones Act of 1990 unconstitutional.

United States v. Rybar (3d Cir. 1996) – In this case, the United States Court of Appeals for the Third Circuit ruled Congress did have the power to regulate the possession of homemade machine guns under the Commerce Clause, later reaffirmed by the Supreme Court. The Third Circuit made this decision 2-1, with future Supreme Court Justice Samuel Alito in dissent.

United States v. Stewart (348 F.3d 1132 (2003) and 451 F.3d 1071 (2006)) – In 2003, the United States Court of Appeals for the Ninth Circuit struck down Stewart’s conviction on a charge of possession of an unregistered machinegun (18 U.S.C. §922(o)) on Commerce Clause grounds. Following the Supreme Court’s decision in Gonzales v. Raich, the Court ordered Stewart remanded to the Ninth Circuit for further consideration in light of the decision in Raich. The Ninth Circuit then upheld Stewart’s conviction, concluding

State Courts

Bliss v. Commonwealth (1822, Ky.) addressed the right to bear arms pursuant to Art. 10, Sec. 23 of the Second Constitution of Kentucky (1799): “That the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned.” This was interpreted to include the right to carry a concealed sword in a cane. Bliss has been described as about “a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment.” Others, however, have seen no conflict with the Second Amendment by the Commonwealth of Kentucky’s statute under consideration in Bliss since “The Kentucky law was aimed at concealed weapons. No one saw any conflict with the Second Amendment. As a matter of fact, most of the few people who considered the question at all believed amendments to the U.S. Constitution did not apply to state laws.”

Bliss stated, “But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution.” The “constitution” mentioned in this quote refers to Kentucky’s Constitution.

The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799) did guarantee individuals the right to bear arms. The Bliss ruling, to the extent that it dealt with concealed weapons, was overturned by constitutional amendment with Section 26 in Kentucky’s Third Constitution (1850) banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky’s Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees “The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.” As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980s, vol. 10, no. 1, 1982, p. 155, “The first state court decision resulting from the “right to bear arms” issue was Bliss v. Commonwealth. The court held that “the right of citizens to bear arms in defense of themselves and the State must be preserved entire, …” “This holding was unique because it stated that the right to bear arms is absolute and unqualified.”

The importance of Bliss is also seen from the defense subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother’s teacher over an accusation regarding eating chestnuts in class. Ward’s defense team consisted of eighteen lawyers, including U.S. Senator John Crittenden, former Governor of Kentucky, and former United States Attorney General. The defense successfully defended Ward in 1854 through an assertion that “a man has a right to carry arms; I am aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals.” As noted by Cornell, “Ward’s lawyers took advantage of the doctrine advanced in Bliss and wrapped their client’s action under the banner of a constitutional right to bear arms. Ward was acquitted.”

In Aymette v. State, 21 Tenn. 154, 156 (1840), the Tennessee Supreme Court construed the guarantee in Tennessee’s 1834 Constitution that ” ‘the free white men of this State, have a right to keep and bear arms for their common defence.’ ” Explaining that the provision was adopted with the same goals as the Federal Constitution’s Second Amendment, the court wrote: “The words ‘bear arms’ … have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.” 

  • 1. The act of 1837-8, ch. 137, sec. 2, which prohibits any person from wearing any bowie knife, or Arkansas toothpick, or other knife or weapon in form, shape or size resembling a bowie knife or Arkansas tooth-pick under his clothes, or concealed about his person, does not conflict with the 26th section of the first article of the bill of rights, securing to the free white citizens the right to keep and bear arms for their common defence.
  • 2. The arms, the right to keep and bear which is secured by the constitution, are such as are usually employed in civilized warfare, and constitute the ordinary military equipment; the legislature has the power to prohibit the keeping or wearing weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare.
  • 3. The right to keep and bear arms for the common defense is a great political right. It respects the citizens on the one hand, and the rulers on the other; and although this right must be inviolably preserved, it does not follow that the legislature is prohibited from passing laws regulating the manner in which these arms may be employed.

The Georgia Supreme Court ruled in Nunn v. Georgia (1 Ga. (1 Kel.) 243 (1846)) that a state law ban on handguns was unconstitutional under the Second Amendment. This was the first gun control measure to be overturned on Second Amendment grounds.[20] In District of Columbia v. Heller (2008), the U.S. Supreme Court said Nunn, “Perfectly captured the way in which the operative clause of the Second Amendment furthered the purpose announced in the prefatory clause.”[21]

In contrast, in The State v. Buzzard (1842, Ark), the Arkansas Supreme Court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, “that the free white men of this State shall have a right to keep and bear arms for their common defense”,[22] while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood “indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment.” Justice Lacy, in a dissenting opinion in Buzzard, summarizing the majority viewpoint to which he disagreed, declared:

Joel Prentiss Bishop‘s influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard’s militia-based interpretation, a view that Bishop characterized as the “Arkansas doctrine” (that the State may regulate the manner in which arms are carried), as the orthodox view of the right to bear arms in American law.

Political scientist Earl Kruschke has categorized both Bliss and Buzzard as being “cases illustrating the individual view.”] Professor Eugene Volokh revealed, in the California Political Review, that a statement in a concurring opinion in Buzzard was the only support for a collective right view of the right to keep and bear arms in the 19th century.

In Wilson v. State of Arkansas (Ark., 1878), the Arkansas Supreme Court dealt with a conviction arising under an Arkansas state law which prohibited a person from carrying a pistol except upon his own premises or when on a journey, or when acting as or in aid of an officer, the same law addressed in the Buzzard decision of 1848.

At trial, Wilson was indicted and convicted of the act and appealed to the state supreme court. The court reversed the trial court’s decision citing an array of state decisions which permitted the state to regulate the manner of carrying a concealed weapon, but that the law at issue restricting such action to one’s own premises, while on a journey, or when acting in aid of an officer was constitutionally invalid. The Wilson decision effectively overturned the prior holding in Buzzard. The opinion, authored by Chief Justice English, included the following assertion:

In 1905, the Kansas Supreme Court, in Salina v. Blaksley, became the first court to interpret the right to keep and bear arms as being only a collective right. The Kansas high court declared: “That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: ‘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.'”

In 2010, Salina v. Blaksley was overruled by the passage of an amendment to the Kansas State Constitution. The amendment provides:

In 2013, the Illinois Supreme Court in People v. Aguilar held that a total ban on carrying firearms outside the home violated the Second Amendment and was unconstitutional. Applying Heller, McDonald, and Moore v. Madigan (a Seventh Circuit decision), the Illinois Supreme Court overturned the conviction of Aguilar, stating that the right to self-defense was at the core of the Second Amendment.

State v. Smith.1 The Smith court found that the state “right to keep and bear arms” is not absolute, and concluded that a restriction of the right is valid as long as it “narrowly serves a significant governmental interest.”2 The court held that the interests served by the statute were the protection of human life and property, and the statute narrowly served these interests “by prohibiting a category of persons likely to be dangerous from possessing dangerous weapons.”

Bleiler v. Chief, Dover Police Dep’t. The Bleiler court declined to subject gun regulations to strict scrutiny, and held that “the reasonableness test is the correct test for evaluating a substantive due process challenge to gun control legislation.”5 The court emphasized, however, that this test “focuses on the balance of the interests at stake, rather than merely on whether any conceivable rationale exists under which the legislature may have concluded the law could promote public welfare.”6 The court held that the statute was a reasonable limitation, noting that it “does not prohibit carrying weapons; it merely regulates the manner of carrying them.”7 The court concluded that “[i]n view of the benefit to public safety and in light of the lack of restriction on possession of loaded weapons in one’s home or business,” the statute did not “‘subvert unduly’ the self-defense aspect of the state constitutional right to bear arms.”