What the Supreme Court Has Said aboutthe Second Amendment

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.]

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.

In the Nordyke v. King gun-show ban case, the Nordyke's petition for an en banc review was submitted on April 1, and the Ninth Circuit has since asked for a response brief from the defendants, Alameda County.

This may indicate that they are willing to conduct such a review, since most of the time such petitions are summarily denied.

The county's brief is due on June 1.

The elite cannot abide the common man (we the people) having liberties equal to theirs...
This imo, offends their sensibilities and belief in their own superiority and birthright-to rule...over a crass lowborn unter-menchen

They also know in their hearts a fear of the masses...and that an armed populace will not abide an evil ruler and have not only the will to depose him/her but also the means....

Yet the right of "the people" to keep and bear arms viewed as a collective right of the state only - is imo, as ludicrous as viewing the 1st ammendment applied to free speech with those limitations.....Free Speech... only to the govt or those appointed by govt. to speak?

HA!

One major problem is that the published syllabus for U.S. v. Miller, which was not written by the Court itself and does not have any legal authority whatsoever, does not accurately state what the decision actually said. Judges in other cases have apparently read the syllabus rather than Miller itself, and thus set faulty precedents.

Neither Jack Miller no co-defendant Frank Layton was ever convicted of possessing a sawed-off shotgun. The question before the court was whether Miller and Layton could quash their indictment without having to present any evidence of anything. The Supreme Court ruled that the issue of whether a particular firearm was suitable for use in a well-functioning militia was an evidentiary question and thus had to be decided in trial court.

Although Jack Miller was dead by the time U.S. v. Miller was decided, Frank Layton was still very much alive when the government was given the go-ahead to proceed with prosecution. The government, however, decided to offer a plea-bargain for time served rather than going to trial court. Can anyone think of any other case in which a plea-bargain for time served was considered a government victory?

Amendment II

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 is about as unambiguous as one can get when framing a document of governance where the framers are trying to make a clear statement as to the prohibition of acts by the government.

A well-regulated, (governed or directed according to rule)

militia (a body of citizens organized for military service)

being necessary (logically unavoidable)

to the security (freedom from danger)

of a free State (State in this incidence means the States that make up the U.S. as well as the U.S. itself)

The right (the power or privilege to which one is justly entitled)

of the people (the citizens of the United States)

to keep (to retain in one's possession or power)

and bear (to move while holding up and supporting)

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

shall not (total prohibition against)

be infringed (encroach upon in any way that violates the law or the rights of another).

They are evil wicked people. Even Charles Shumer, the slimiest of the slime, conceded that the second amendment was an individual right, and he did it, when he blasted the white house for saying it arguing that Olsen saying that is justice department policy now, is opening the door to repeal gun control laws. Basically, to put it nicely, he was saying "yes, we know its individual, and gun control laws are against the constitution, but if you say it, then we are going to have problems gutting the constitution so stop it".

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

A comma merely indicates a slight pause when reading. It can separate a main thought from an explanitory or expansionary aside. Punctuation and spelling were indifferent at best in the late 1700s and there actually exist two different "official" versions of the second amendment, one with 3 commas and one with only one. The 3 comma version is the one written out by the clerk of the House, AFTER the House and Senate had separately approved single comman versions. No other contemporanous version has those 3 commas. They all have only one comma, after "state". The version sent to the states, or at the one surviving example, has only the one comma, as do versions sent back from several states to the federal government with their official ratification. There has already been a FR thread on the subject of the commas.

IMHO, only the single comma version makes grammatical sense if the comma(s) is(are) supposed to separate separate thoughts. Since the single comma version is the one passed by both houses of Congress, and as far as we can tell the one sent to the states for ratification, it is the definitive version.

From the article/thread linked above:

It is important to use the proper Second Amendment because it is clearly and flawlessly written in its original form. Also, the function of the words, "a well regulated militia being necessary to the security of a free state," are readily discerned when the proper punctuation is used. On the other hand, the gratuitous addition of commas serve only to render the sentence grammatically incorrect and unnecessarily ambiguous.

Any comments on what "power or privilege" "one is justly entitled" to in regard to bearing arms?

I am not interested in the "nuclear backpack" question.

I am interested in the "reasonable restrictions" question.

Some say there are no "reasonable restrictions." If there are no "reasonable restrictions," then the likes of Charles Manson, Timothy McVeigh and the Unibomber would be permitted to bear the arms of their choice while at the defense table during their trials. After all, they are innocent until proven guilty.

Somehow, I don't think that would work out well in regard to insuring domestic Tranquility, promoting the general Welfare, and securing the Blessings of Liberty for the People of the United States and our Posterity.

It could be argued that keeping the likes of those mentioned from bearing arms in the circumstance given is a reasonable restriction. If so, the basis for the restriction must lie in the answere to the question: what exactly is covered by "the power or privelege to which one is justly entitled" in regard to the bearing of arms?

You have it backwards. Powers and privileges are granted to, or revoked from, government by the people. We the people have the RIGHT to keep and bear arms. There is no such thing as "resonable restrictions" on rights. The governments PRIVILEGE to keep and bear arms may be restricted, or revoked, by the people. The government is the servent, the people are the masters, NOT the other way around.

Defendants and prosecuters should be seated in front of hay bails to prevent richocets should the judge, jury, and spectators decide to open fire simultaniously. Dangerous criminals like Manson should be executed, or kept in prison.

Perhaps the term "reasonable restrictions" is not the best, but it is the one I have seen used and I could not think of a better one when I composed my post.

Your right to swing your fist ends where my nose begins.

"Rightful liberty is unobstructed action, according to our will, within limits drawn around us by the equal rights of others." -- Thomas Jefferson

The Rights of one person are limited by the rights of another.

Those are all restrictions in that they limit the rights of a person from extending as far as that person might like. That person has no right beyond a certain point. Perhaps it would be better to say "reasonable limits" rather than "reasonable restrictions."

If the "judge, jury, and spectators decide to open fire simultaniously" on "Defendants and prosecuters" the right to life of the "Defendants and prosecuters" will be restricred/limited and it will be murder unless maybe, in the case of the defendant, he has just been convicted and sentenced to death. (Since you are willing to restrict/limit their right to life, you must have some subconscious foundation for doing so. What is it?)

And since you think there is no such thing as a reasonable restriction on rights, that means Mr Manson could be armed and shooting back, which probably would not be much of a problem, but if the defendant was the Unabomber and he was bearing his choice of arms there would be a large problem.

As to "Powers and privileges are granted to, or revoked from, government by the
people. We the people have the RIGHT to keep and bear arms" and "The governments PRIVILEGE to keep and bear arms may be restricted, or
revoked, by the people. The government is the servent, the people are the masters, NOT the other way
around."

I am not disagreeing with that and it is not the issue in question.

I'd object if you cut off my fist so it can't hit your nose. You'd likely object if I cut off your nose so there's no danger of my fist hiting it. Let's just respect each others right to keep what we've got. If either of us uses their body parts to assault the other without provication, there's already a law against that. Should we cut out peoples vocal cords so they can't yell "fire" in a crowded theatre? Please note the word "action" in that Jefferson quote. It's actions that may be illegal, not fists, guns, or vocal cords.

The people in the courtroom would only open fire in self defense, of course. There would probably be a lot less BS, and more mutual respect in an well armed courtroom. Who knows, justice might even break out! The point being, an armed society is a polite society.

The Second Amendment can be put in even more understandable terms.

“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.”

A well-regulated militia means a well-maintained and armed body of men composed of the common people. George Mason said, "I ask, sir, what is the militia? It is the whole people, except for a few public officials." This Amendment emphasizes that such militias are necessary to secure the freedoms of the people. A free state was considered one in which citizens had inalienable rights, government derived its power from the governed, and the people had the right to alter or abolish the government if it became tyrannical. The right of citizens to keep and bear arms is the guarantee of that free state.

The Founding Fathers of the Constitution knew of the potential evils of having standing armies in times of peace. In free states, the defense of the realm was considered best left to citizens who took up arms only when necessary and who returned to their communities and occupations when the danger passed. They observed that professional soldiers endangered liberty. Standing armies were viewed as instruments of fear. A main danger to a free republic was tyrannical government and the ultimate check on tyrannical government was an armed population.

From the above information we can see how the Third Amendment ties in with the Second Amendment.

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

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