On Mon, 14 Jul 2003 02:42:28 GMT, Steve Krulick <***@krulick.com> wrote:
Hey Steve! Yah, you, the dumbfuck.
Chew these over....
THE SUPREME COURT'S THIRTY-FIVE OTHER GUN CASES:
WHAT THE SUPREME COURT HAS SAID ABOUT THE SECOND AMENDMENT
David B. Kopel [FNa1]
Saint Louis University Public Law Review
1999
Symposium
Gun Control
*99
Copyright © 1999 St. Louis University School of Law; DAVID B. KOPEL
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Part two of this article.
Part three of this article.
Note: Endnotes 1-254 are in Part two of this article. Endnotes 255 to
end are in Part three of this article.
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Among legal scholars, it is undisputed that the Supreme Court has
said almost nothing about the Second Amendment. [FN1] 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 [FN2] decision
remains hotly disputed, the dispute about 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 in 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.
*100 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
of ordinary Americans to own a gun is "perhaps the most well-settled
point in American law." [FN3] 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. [FN4] 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." [FN5]
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. [FN6] This article refers to the *101 State's Rights theory of
the Second Amendment as the "Henigan/Bogus theory," in honor of its
two major scholarly proponents. [FN7]
In contrast to the State's Rights theory is what has become known
as the Standard Model. [FN8] 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. [FN9] This modern *103 Standard Model is similar to the
position embraced by every known legal *104 scholar in the nineteenth
century who wrote about the Second Amendment: the Amendment guarantees
an individual right, but is subject to various reasonable
restrictions. [FN10]
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
meaning," and was merely a clever trick that James Madison played on
the Anti-Federalists. [FN11] 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.
[FN12] 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. [FN13] The federal courts
which follow the academic Standard Model *105 are in the minority,
although the ranks of the minority have grown in recent years. [FN14]
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. [FN15] 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. [FN16] Freed, Miller and Layton promptly absconded, *106
and thus only the government's side was heard when the case was argued
before the Supreme Court. [FN17]
Unfortunately, Miller was written by Justice James McReynolds,
arguably one of the worst Supreme Court Justices of the twentieth
century. [FN18] 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. [FN19]
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). [FN20] The case
cited by the Miller Court, Aymette v. State [FN21], 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 *107 use; in dicta, Aymette states that
the Second Amendment has the same meaning. [FN22]
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." [FN23] 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. [FN24] The footnote likewise cites treatises
by Justice Joseph Story and Thomas Cooley explicating the Second
Amendment as an individual right. [FN25] But the same Miller footnote
also cites a Kansas Supreme Court *108 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. [FN26]
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. [FN27]
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-four other cases--although
most of these cases appear to have escaped the attention of
commentators on both sides of *109 the issue. This article ends the
bipartisan scholarly neglect of the Supreme Court's writings on the
Second Amendment. [FN28]
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. [FN29] Nevertheless, all the 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 Amendment should be treated as an individual right.
Moreover, the line between dicta and ratio decendi is rarely firm,
[FN30] and one day's dicta may become another day's holding. [FN31]
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. [FN32]
*110 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"). [FN33] 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. [FN34] *111 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." [FN35] 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 freedom in a state," or when they are detrimental to freedom or
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." [FN36] 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. [FN37]
Of the twenty-nine U.S. Supreme Court opinions (including Miller)
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.
Case name and year.
Opinion by
Main issue in case
Type of opinion
Supportive of individual right?
Main clause of 2d Amendment quoted without introductory clause?
Spencer v. Kemna. 1998
Stevens
Article III case or controversy
Dissent from denial of cert.
Yes, but could possibly be read as referring to rights under state
constitutions
No quote
Muscarello v. U.S. 1998
Ginsburg
Fed stat. interp.
Dissent
Yes
Partial quote
Printz v. U.S. 1997
Thomas
Federalism
Concur
Says that Miller did not decide the issue. Thomas appears to support
individual right.
Full quote
Albright v. Oliver. 1994
Stevens
14th A. and § 1983
Dissent
Yes
Partial quote
Planned Parenthood v. Casey. 1992
O'Connor
14th A.
Majority
Yes
Partial quote
U. S. v. Verdugo-Urquidez. 1990
Rehnquist
4th A. applied to foreign national
Majority
Yes
Partial quote
Lewis v. U.S. 1980
Blackmun
Interp. of Gun Ctl. Act of 1968
Majority
Ambiguous, but probably not. If an individual right, less fundamental
than some others
Full quote
Moore v. East Cleveland. 1976
Powell
14th A
Plurality
Yes. (But contrary opinion expressed by Justice Powell after
retirement.)
Partial quote
" "
White
""
Dissent
Yes
Partial quote
Adams v. Williams. 1972
Douglas
4th A.
Dissent
No
Full quote
Roe v. Wade. 1973
Stewart
14th A.
Concur
Yes
Partial quote
Laird v. Tatum. 1972
Douglas
Justiciability
Dissent
Ambiguous
Partial quote
Burton v. Sills. 1969
Per curiam
Challenge to state gun licensing law
Summary affirm.
Ambiguous
No quote
Duncan v. Louisiana. 1968
Black
Incorporation of 6th Amendment
Concur
Yes
Partial quote
Malloy v. Hogan. 1964
Brennan
Incorporation of 5th Amend.
Majority
Yes
No quote
Konigsberg v. State Bar. 1961
Harlan
1st Amendment
Majority
Yes
Partial quote
Poe v. Ullman. 1961
Harlan
14th Amendment
Dissent
Yes
Partial quote
" "
Douglas
" "
Dissent
Yes, but implicitly abandoned in Adams.
No quote
Knapp v. Schweitzer. 1958
Frankfurter
Incorp. of 5th Amendment
Majority
Yes
Partial quote
Johnson v. Eisentrager. 1950
Jackson
5th A. applied to trial of enemy soldier
Majority
Yes
Partial quote
Adamson v. Calif. 1947
Black
Incorp. of 5th Amendment
Dissent
Yes
Partial quote
Hamilton v. Regents. 1935
Butler
Conscientious objector
Majority
No, but not necessarily inconsistent with an individual right.
No quote
U. S. v. Schwimmer. 1929
Butler
Immigration laws
Majority
Ambiguous
Full quote
Stearns v. Wood. 1915
McReynolds
Article III case or controversy
Majority
Ambiguous, since court refuses to hear any of plaintiff's claims
No quote
Twining v. N.J. 1908
Moody
Incorp. of 5th A self-incrim.
Majority
Yes
Partial quote
Trono v. U.S. 1905
Peckham
5th A. in the Philippines
Majority
Yes
Partial quote
Kepner v. U.S. 1904
Day
" "
Majority
Yes. Same as Trono.
Partial quote
Maxwell v. Dow. 1899
Peckham
Incorp. of 5th A. jury trial
Majority
Yes
Partial quote
Robertson v. Baldwin. 1897
Brown
13th Amend.
Majority
Yes
Partial quote
Brown v. Walker. 1896
Field
5th Amend.
Dissent
Yes
Partial quote
Miller v. Texas. 1894
Brown
14th Amendment
Majority
Yes
Partial quote
Logan v. U.S. 1892
Gray
Cong. Power from 14th A.
Majority
Yes
Partial quote
Presser v. Illinois. 1886
Woods
2d A
Majority
Yes
Full quote
U. S. v. Cruikshank 1876
Waite
Cong. Power under 14th Amendment
Majority
Yes. A basic human right guaranteed by the Const., like 1st A. rt. of
assembly
No quote
Scott v. Sandford. 1857
Taney
Citizenship; Cong. powers over territories.
Majority
Yes
Partial quote
Houston v. Moore. 1820
Story
State powers over militia.
Dissent
Yes, but also supportive of a state's right. (A later treatise
written by Story is for individual right only.)
No quote
*112
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 *114 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. [FN38] While free, he was accused but not convicted of rape,
and his parole was revoked. [FN39] He argued that his parole
revocation was unconstitutional. [FN40] But before his constitutional
claim could be judicially resolved, his sentence ended, and he was
released. [FN41] 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. [FN42] 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. [FN43]) *117
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. *118 FN44] It is notable, then,
that Justice Stevens recognizes a right to bear arms as an important
constitutional right, whose deprivation should not be shielded from
judicial review. [FN45]
B. Muscarello v. United States
Federal law provides a five year mandatory sentence for anyone who
"carries a firearm" during a drug trafficking crime. [FN46] Does the
sentence enhancement apply when the 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."
[FN47] In dissent, Justice Ginsburg--joined by Justices Rehnquist,
Scalia [FN48], and Souter--argued that "carries a firearm" means to
carry it so that it is ready to use. [FN49] In support for her view,
Justice Ginsburg pointed to the Second Amendment "keep and bear arms"
as an example of the ordinary meaning 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 ubiquitously *119 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." [FN50]
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, [FN51] the 1776 Pennsylvania Constitution,
[FN52] 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. [FN53] 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" [FN54]) argues that "bear" has an exclusively military
context. [FN55] It is impossible, he writes, to "bear arms" unless
once is engaged in active militia service. *120 Hence, the right to
"bear arms" does not refer to a right of individuals to carry guns.
[FN56]
Justice Ginsburg's opinion plainly takes the former approach. She
believes that "to bear arms" is to wear arms in an ordinary way.
[FN57]
*121
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. [FN58] 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 *122 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. [FN59] The law was enacted under the congressional
power "to regulate commerce. . .among the several states." [FN60] 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. [FN61]
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. [FN62]
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 [FN63] a personal right to "keep and bear
arms," *123 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.
[FN64]
There are several notable elements in the Thomas concurrence. First,
Justice Thomas equates 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). [FN65] He implicitly rejected second-class citizenship
for the Second Amendment.
Justice Thomas then suggests that the Brady Act could be invalid
under the Second Amendment. [FN66] 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. [FN67]
Justice Thomas plainly does not take such a weak position in defense
of the Second Amendment. [FN68] His implication is that by requiring
government permission and a week-long prior restraint 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 rejects the argument that the Second
Amendment merely protects "sporting weapons" (usually defined as a
subset of rifles and shotguns). [FN69]
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 leaves no doubt about his
personal view of the issue, as he quotes 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." [FN70]
*124
There are two footnotes in the Second Amendment portion of the
Thomas concurrence. In the first footnote, the Justice states 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 [FN71]). He added
that the Supreme Court has never directly ruled on the individual
rights issue.
1 Our 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:
2 Marshaling 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 points 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 the
government.
*125
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. [FN72]
The Supreme Court does not always follow the viewpoint of the
legal academy. But for most of this century, 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. [FN73]
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. [FN74] 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 a malicious decision to prosecute someone for conduct which was not
crime under the relevant state law. [FN75] 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. [FN76]
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":
*126 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). [FN77]
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. [FN78]
In Poe v. Ullman, the second Justice Harlan construed the "liberty"
protected by the Fourteenth Amendment. [FN79] Although Justice
Harlan's words originally were written in dissent, they have been
quoted in later cases as the opinion of the Court. [FN80] 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" is not limited to "the specific guarantees
elsewhere provided in the Constitution" including "the right to keep
and bear arms." These individual *127 rights in the Harlan list, like
other individual rights in the Bill of Rights, might be included in
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. [FN81]) 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. [FN82] 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. [FN83] 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
*128 of the scope of Fourteenth Amendment liberty includes important
material which later Justices carefully avoided quoting. [FN84]
F. United States v. Verdugo-Urquidez
United States v. Verdugo-Urquidez [FN85] 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.
[FN86] 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. [FN87] *129
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." [FN88] To adopt the *130 Henigan/Bogus 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." ' [FN89] 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. [FN90]
*131
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. [FN91] 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. [FN92] 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 Burger
Court's dicta are not so consistent.
A. Lewis v. United States
The one Supreme Court majority opinion which is fully consistent
with the Henigan/Bogus state's rights theory is Lewis v. United
States. [FN93] Interestingly, the same advocates who dismiss Verdugo
because it was not a Second Amendment case rely heavily on Lewis even
though it too is not a Second Amendment *132 case. The issue in Lewis
was primarily statutory interpretation, and secondarily the Sixth
Amendment. A federal statute imposes severe penalties on persons who
possess a firearm after conviction for a felony. [FN94] In 1961, Lewis
had been convicted of burglary in Florida [FN95]; since Lewis was not
provided with counsel, his conviction was invalid under the rule of
Gideon v. Wainright. [FN96] 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. [FN97]
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. . . ." [FN98] This supposedly showed Congressional
intent to disarm people like Lewis, since the Senator had "stressed
conviction, not a 'valid' conviction." [FN99] 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." [FN100] 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.
[FN101]
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 *133
office in a waterfront labor organization); Hawker v. New York, 170
U.S. 189 (1898)(prohibition against the practice of medicine). [FN102]
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). [FN103]
Attorney Stephen Halbrook (the successful plaintiffs' attorney in the
Supreme Court gun cases of Printz v. United States [FN104], and United
States v. Thompson/Center [FN105]) reads Lewis as reflecting 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." [FN106]
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?
*134 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] [FN107]
The Cody [FN108] 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., Velazquez v. United States, 319 U.S. 770, 63 S. Ct.
1431, 87 L. Ed. 1718 (1943). [FN109] We find no evidence that the
prohibition of § 922(a) (6) obstructs the maintenance of a well
regulated militia. [FN110]
In Johnson, the Fourth Circuit upheld the Gun Control Act as
applied to a convicted felon who transported a firearm in interstate
commerce. [FN111] 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." ' [FN112]
Now a "collective right" can be read two ways: it can be like
"collective property" in a Communist property; since it 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, *135 each person
has a right to possess arms for militia purposes (but not to possess
arms for other purposes, such as self-defense). [FN113] Indeed, this
is the approach taken 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. [FN114]
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 to that
proposition. Although Halbrook's reading of Lewis is not formally
wrong, the spirit of Lewis 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. [FN115] The plurality opinion by Justice Powell found in the
Fourteenth Amendment a general protection for families to make their
own living arrangements. [FN116] Thus, the East Cleveland law, which,
for example, forbade two minor cousins to live with their grandmother,
[FN117] was unconstitutional.
*136 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, [FN118] and by Justice Stevens' dissent in Albright v. Oliver
[FN119]:
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). [FN120]
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.
[FN121]
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, [FN122] and
was adopted in nine of the first fifteen states' *137 constitutions.
[FN123] 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. [FN124] With the
exception of a single concurring opinion by an Arkansas judge in 1842,
[FN125] every known judicial opinion and scholarly commentary from the
nineteenth century treated the Second Amendment as an individual
right. [FN126]
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, [FN127]
and many others own other types of "arms" (such as edged weapons)
which might fall within the scope of protected "arms." [FN128] Today,
forty-four state constitutions guarantee a right to arms [FN129]; 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. [FN130] Twenty years ago, only a few states allowed ordinary
citizens to obtain a permit carry a concealed handgun for protection;
now twenty-nine states have "shall issue" laws, and two states require
no permit at all. [FN131]
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 ratifying convention had demanded such a
clause, and no such right was recognized in in the *138 English Bill
of Rights. [FN132] If the just compensation is "traditional" enough to
have been incorporated, as it has been, [FN133] 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. [FN134]
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 [FN135]; 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. [FN136]
*139 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 1972 case of Adams v. Williams. [FN137] Acting on a
tip, a police officer stopped a motorist for questioning, and then
grabbed a revolver hidden in the driver's waistband. [FN138] The
Supreme Court majority upheld the officer's actions as a reasonable
effort to protect his safety. [FN139]
Justice Douglas, a strong defender of the Fourth Amendment right to be
free from unreasonable searches, dissented. [FN140] 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 *140 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. [FN141]
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 loose
standard for "stop and frisk" would become a tool for police officers
to search people at will, with officer safety often serving as a mere
pretext. [FN142] (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. [FN143] (Connecticut was one of the first states
to adopt "shall issue" laws for concealed handgun permits; now,
thirty-one states have such laws. [FN144])
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. [FN145]
D. Roe v. Wade
*141
The year after 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, [FN146] 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. [FN147] 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. [FN148] 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 [FN149], 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).
[FN150]
Thus, the Harlan dissenting language about the Second Amendment,
from Poe v. Ullman, has been quoted in one majority opinion (Planned
Parenthood v. Casey [FN151]), one plurality opinion (Moore v. East
Cleveland [FN152]), two dissents*142 (Albright v. Oliver and Moore v.
East [FN153]), and one concurrence (Roe v. Wade [FN154]). In contrast,
the Douglas dissenting language about the Second Amendment, from Adams
v. Williams, [FN155] 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. [FN156] When the Army's
conduct was to discovered, a group of individuals who had been spied
upon brought suit in federal court. [FN157] In a sharply divided
five-four decision, the Supreme Court majority held that the suit was
not justiciable. [FN158] The plaintiffs could not show that they had
been harmed by the Army, or that there was a realistic prospect of
future harm, and hence there was no genuine controversy for a federal
court to hear. [FN159] Justice Douglas (joined by Justice Marshal)
penned a fiery dissent, invoking the long struggle to free civil life
from military domination. [FN160]
Justice Douglas began by examining the power which the Constitution
grants Congress over the standing army and over the militia. [FN161]
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. [FN162]
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. [FN163]
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:
"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 *143 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." [FN164]
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). [FN165]
But based on Justice Douglas's dissent the same 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 Henigan/Bogus 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. [FN166]
A. Burton v. Sills
*144 Burton v. Sills involved a challenge to the then- new gun
licensing law in New Jersey. [FN167] 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 [FN168], the plaintiffs asked the Supreme Court to review the
case; the request came in the form of an "appeal," rather than a
petition for a writ of certiorari. [FN169]
The United States Supreme Court declined to hear the case. [FN170]
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." [FN171]
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. [FN172]
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. [FN173])
*145 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. [FN174] The plaintiffs invited the courts to use the
Burton case as an opportunity to reverse prior precedent. [FN175] 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, [FN176] suggesting that
the Brady Act waiting period may violate the Second Amendment, implies
he would not read Burton as 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." [FN177]
Given the plaintiffs' requested grounds for Supreme Court review
(to overturn Presser) it is logical to view Burton as a re-affirmance
of Presser. [FN178]
On the other hand, since Burton contains no explicit reasoning,
the case is not directly contradictory to the Henigan/Bogus 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. [FN179] Justice Black, joined by Justice Douglas,
concurred, and restated his argument from Adamson v. California
[FN180] (infra) that the Fourteenth Amendment's "privileges and
immunities" clause should be read to include everything in the first
eight Amendments. [FN181] 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 *146
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. . . . [FN182]
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 on the bench 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. [FN183]
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. [FN184] 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." [FN185] Among these were "Presser v. Illinois,
116 U.S. 252, 265 (Second Amendment)," [FN186] along with various
other cases, almost of which had been, or would be, repudiated by
later decisions on incorporation. [FN187]
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 is of some
significance as a modern interpretation of Presser, since, as we shall
discuss infra, the years after the1886 *147 Presser decision generated
a variety of opinions about whether Presser actually had rejected
incorporation.
D. Konigsberg v. State Bar of California
In Konigsberg, 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. [FN188] 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. [FN189]
Justice Harlan's majority opinion rejected Justice Black's
standard of constitutional absolutism. [FN190] The Harlan majority
opinion is one of the classic examples of the "balancing" methodology
of jurisprudence. [FN191] Justice Harlan pointed to libel laws as laws
which restrict speech, but which do not infringe the First Amendment.
[FN192] 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. [FN193] 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. [FN194]
The year before Justice Black's absolutist interpretative model
was rejected by the majority of the Court, Justice Black had detailed
the absolutist theory *148 in the first annual James Madison lecture
at the New York University School of Law. [FN195] 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. [FN196] Regarding the Second Amendment, 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. [FN197]
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. . ."
[FN198] If Justice Black thought that the Second Amendment protected
state power, rather than individual liberty, he would 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 "definite 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. [FN199] 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 *149 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." [FN200]
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 the 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, the Harlan dissent in Poe 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," [FN201] those quotations omit
the list of cases that Justice Harlan cited for the proposition. That
list included Allgeyer v. Louisiana [FN202] and Nebbia v. New York,
[FN203] 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 a logical claim to be part of the Fourteenth Amendment as do
Griswold [FN204] and its progeny; both lines of 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.
*150 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." [FN205] 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. [FN206] 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. [FN207]
F. Knapp v. Schweitzer
Knapp involved the applicability of the Fifth Amendment's
self-incrimination clause to the states. [FN208] 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 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); UnitedStates 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-*151 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). [FN209]
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. [FN210] The American army captured them, and
tried them by court-martial in China as war criminals. [FN211] 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. [FN212]
Justice Jackson's majority opinion held that Germans had no Fifth
Amendment rights. [FN213] He pointed out that if Germans could invoke
the Fifth Amendment, they could invoke the rest of the Bill of Rights.
[FN214] 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, [FN215] 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 *152 Fourth, as well as rights to jury trial as in the Fifth and
Sixth Amendments. [FN216] 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.
[FN217] 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.
[FN218]
*155
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. [FN219] This jury instruction was
plainly inconsistent with established Fifth Amendment doctrine;
[FN220] 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."
[FN221]
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." [FN222] 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 *156 the Federal Constitution against the powers of the
Federal government.' Cf. Palko v. Connecticut, 302 U.S. 319, 329, 153.
[FN223] 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.
[FN224] 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
(Chairman of the Senate Judiciary Committee) explained, there was a
statute to "prohibit any negro or mulatto from having firearms. . ."
[FN225] 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." [FN226]
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. . . .
. . .
*157 "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.
[FN227]
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. . . ."
[FN228]
. . . .
"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. [FN229]
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." [FN230] 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.
Senator Howard, 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. *158 FN231] The Henigan/Bogus 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 Eight). [FN232] Finally,
Congress explicitly guaranteed a state's right in the Tenth Amendment.
[FN233] 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. [FN234] 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." [FN235]
Which reading 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 Henigan/Bogus
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. [FN236] 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.
[FN237] 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. [FN238] A unanimous Court disagreed, and stated that
California's acceptance of federal assistance in militia training did
not transform the training *159 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 transgresses 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. [FN239]
Thus, the Court used the Second Amendment to 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. [FN240] 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." [FN241]
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 instead support 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. [FN242] The report of the attorneys' arguments, on both
sides, shows that the Second Amendment was not raised as an issue.
[FN243] 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." [FN244] In
other words, state militia powers were inherent in the *160 nature of
state sovereignty, and continue to exist except to the extent limited
by Congress under its Constitutional militia powers.
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. [FN245] 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." [FN246]
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? [FN247]
The cited pages of Kent's Commentaries discuss state versus federal
powers over the militia. Chancellor Kent uses Martin v. Mott [FN248]
to show that a President's decision that there is a need to call out
the militia is final. Houston v. Moore [FN249] (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. [FN250]
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. [FN251]
*161
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 tenth was ambiguous, and
the eleventh 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. [FN252] 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. [FN253] 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.
. . ."
*162 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. [FN254]
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) [FN255], 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, [FN256] 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 [FN257]) can also be a duty.
B. Stearns v. Wood
This case came to the Court after World War I had broken out in
Europe. [FN258] 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.
[FN259] 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. [FN260]
Writing for a unanimous Court, Justice McReynolds contemptuously
dismissed Stearns' claim without reaching the merits. [FN261] Since
Stearns' present rank *163 of Major was undisturbed, there was no
genuine controversy for the Court to consider, and the Court would not
render advisory opinions. [FN262]
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. Blaksley 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, [FN263] Stearns' attorney's argument did have some foundation
in case law.
C. Twining v. New Jersey
In Twining, the Supreme Court (with the first 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. [FN264] 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.
[FN265]
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,*164 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.
[FN266] 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. [FN267]
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. [FN268] 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 [FN269] case and the 1904 Kepner [FN270] 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:
*165 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. [FN271]
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. [FN272]
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. [FN273]
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. [FN274]
In contrast, the Court did note the omission of "the right of trial by
jury and the right of the people to bear arms." [FN275] 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.
[FN276]
The 1904 United States v. Kepner case involved a similar issue.
[FN277] 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. [FN278]
*166
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. [FN279] The Court
explained that Thirteenth Amendment's ban on involuntary servitude,
even though absolute on its face, contained various implicit
exceptions. [FN280] 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. . . .
[FN281] Likewise, the self-incrimination clause did not bar a person
from being compelled to testify against himself if he were immune from
prosecution; and the confrontation clause did not bar the admission of
dying declarations. [FN282]
In 1897, state laws which barred individuals from carrying concealed
weapons were common, and usually upheld by state supreme courts
[FN283]; the laws did not 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.
*167
G. Brown v. Walker
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. [FN284]
The majority pointed out that a Congressional statute protected the
witness from any criminal prosecution growing out of the testimony.
[FN285]
Dissenting, Justice Stephen Field (perhaps the strongest civil
liberties advocate on the Court during the nineteenth century)
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. [FN286] 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. [FN287] 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 incriminating testimony." [FN288] 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."
[FN289]
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. {FN290] Justice Field's paragraph is not a list of state
powers, it is a list of personal rights won at *168 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, a 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. [FN291] Regarding the Second Amendment,
Miller claimed that it negated the Texas statute against concealed
carrying of a weapon. [FN292]
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." [FN293] This statement about concealed weapons laws was
consistent with what the Court would say about such laws three years
later, in the Robertson case. [FN294]
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." [FN295]
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." [FN296]
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 *169 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. [FN297] 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. [FN298]
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.
Illinois, which involved the murder prosecutions arising out of the
Haymarket Riot. [FN299] John Randolph Tucker represented the
defendants. Tucker, an eminent Congressman, author of an important
treatise on constitutional law, a future President of the American Bar
Association, and a leading law professor at Washington and Lee
[FN300]-- argued that the whole Bill of Rights was enforceable against
the states, including the right to arms. [FN301]
*170 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. [FN302] 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." [FN303]
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.
FN304] (An 1890 opinion, Eilenbecker, again cited Cruikshank and
Presser as holding that the Bill of Rights does not apply directly to
the states. [FN305]) 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. [FN306]
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*171 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.[FN307]
Whatever Miller v. Texas 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 Henigan/Bogus
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. [FN308] 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. [FN309] 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*172 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
End of part one:
"What do you call someone in possesion of all the facts? Paranoid.-William Burroughs