What the Supreme Court Has Said aboutthe Second Amendment

apfn.org ^ | ?? | By David B. Kopel

[ThreePuttinDude]

The Supreme Court’s Thirty-five Other Gun Cases:
What the Supreme Court Has Said about the Second Amendment

[This is a DRAFT of an article that will appear in a symposium issue of volume 18 of the St. Louis University Public Law Review.]

By David B. Kopel[1]

Among legal scholars, it is conventional wisdom that the Supreme Court has said almost nothing about the Second Amendment.[2] 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[3] decision remains hotly disputed, the question 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 is 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.

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 to ordinary Americans to own a gun is “perhaps the most well-settled point in American law.”[4] 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.[5] 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.”[6]

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.[7] This article refers to the State’s Rights theory of the Second Amendment as the “Henigan/Bogus theory,” in honor of its two major scholarly proponents.[8]

In contrast to the State’s Rights theory is what has become known as the Standard Model.[9] 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.[10] This modern Standard Model is similar to the position embraced by every known legal scholar in the nineteenth century who wrote about the Second Amendment: the Amendment guarantees an individual right, but is subject to various reasonable restrictions.[11]

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 content,” and was merely a clever trick that James Madison played on the Anti-Federalists.[12] 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.[13] 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.

[copycat]

Good analysis. The commas mean a seperation of thought and are all important. Parley

There is only one comma in the original. AFAIK, two commas were added by FDR.

[Jimmy Valentine's brother]

The elite cannot abide the common man

Please one and all on this forum, can we stop using the word elite, the choice part; esp: a socially superior group and start using elitist a belief or advocacy of rule by an elite. I don't have a problem with one who may be elite but I do have a problem with an elitist aka HRC.

[The_Pickle]

All definitions are courtesy of Merriam-Webster and are not my own.

However the point of the post was to show that even by the loosest definitions the 2nd amendment is about the rights of the people.

As for the the definition of infringe: wouldn't you, as most people do, consider the Constitution to be the the highest Law of the land?

[supercat]

arms (a means, as in a weapon, of offense or defense)

But does the term include any and all such objects as might be used for such purpose? If so, on what items is the government allowed to place taxes or any other restriction?

IMHO, and the Court in Miller seemed to take this view, the prefatory phrase of the Second Amendment serves to clarify that the "Arms" protected thereby are those artifacts which could be used effectively as weapons in the context of a well-functioning citizen army.

M-16 clearly included. Glock 19 clearly included. Cane gun, perhaps not.

[KrisKrinkle]

"The people in the courtroom would only open fire in self defense, of course."

Somehow I don't think what the Founders had in mind was that the right to bear arms would include allowing a defendant to bear arms while being tried on a capital charge so that on conviction, the defendant could take a few innocent people down with him as the surviving people in the courtroom cut him down in self defense.

Respecting "each others right" presumes a common and correct understanding of what constitutes such right and where it ends. Or if not a common and correct understanding, at least an understanding that is sufficently correct and prevalent that a just society can exist.

[KrisKrinkle]

"Cane gun, perhaps not."

Now that's more along the lines of what I was trying to get at in my post 15.

The "right to bear arms" may not include the right to bear a cane gun.

Now, if not, why not?

[supercat]

Somehow I don't think what the Founders had in mind was that the right to bear arms would include allowing a defendant to bear arms while being tried on a capital charge so that on conviction, the defendant could take a few innocent people down with him as the surviving people in the courtroom cut him down in self defense.

For people, substitute "all free persons". Obviously slaves were never intended to have arms, either.

[supercat]

The "right to bear arms" may not include the right to bear a cane gun.

Now, if not, why not?

Just about any object can be used as a weapon. If the government were forbidden from taxing or placing any restrictions upon every item which could possibly used as a weapon, it would be unable to tax or restrict much of anything.

The variety of items which could potentially be useful as weapons in a well-functioning citizen army is quite large, and probably encompases most artifacts that would normally be described as "weapons". One might reasonably question, however, whether a cane gun could be effectively so used. Most such weapons are apt to be no more readily kept at hand than a pistol and are apt to be more difficult to fire either quickly or accurately. As such, their military usefulness may be dubious at best.

Something like a Glock 17 or M-16, however, would have clearly demonstrable military usefulness; something like a Bryco model 38, while not used by any military, could reasonably be allowed as a poor person's "nearest equivalent" to a good military pistol.