CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT
Brannon P. Denning[*]
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B. Cruikshank and Presser: The Second Amendment and the States
1. United States v. Cruikshank
Even if the Supreme Court overturned Miller, under existing case law states would still be free to regulate, to the extent permitted by various state constitutions, the right to keep and bear arms. Since comprehensive, nationwide gun control legislation is regarded as not politically feasible, many gun control advocates have concentrated their efforts at the state and local level. In places like New York state or Morton Grove, Illinois, gun control initiatives have been enacted. To what extent have courts held that the Second Amendment operates as a limitation upon state power? Unfortunately, the federal courts have employed reasoning from antiquated Supreme Court decisions--the foundations of which have been largely repudiated by modern Court decisions--in opinions addressing the Second Amendment's protection against state and local government attempts at gun control. Therefore, despite well over half a century of incorporation in which the federal courts have held almost all provisions of the Bill of Rights applicable to the states, the Second Amendment has not been applied to the states.[80]
Conventional wisdom holds that United States v. Cruikshank[81] settled the question of the Second Amendment's applicability to state governments.[82] However, in the haste to dispose of Second Amendment claims, the background against which the Cruikshank decision took place is ignored. Moreover, language in the opinion, as well as a half century of Supreme Court doctrine, calls into serious question the continuing viability of either the holding or the reasoning. Cruikshank, decided during Reconstruction, "was part of a larger campaign of the Court to ignore the original purpose of the Fourteenth (p.978)Amendment--to bring about a revolution in federalism, as well as race relations."[83]
Cruikshank originated in Louisiana where a sixteen count indictment was handed down against over one hundred individuals under § 6 of the Enforcement Act of 1870.[84] The indictment alleged that the defendants, inter alia, conspired to "hinder and prevent" two African-American citizens from exercising certain "rights and privileges."[85] Among the rights and privileges asserted were the "lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceable and lawful purpose"[86] and the right of "bearing arms for a lawful purpose."[87]
First, it is important to note that the Court's holding emphasizes that the guarantees in the Bill of Rights operate to restrain governments as opposed to individuals.[88] The necessary element of state action was missing. But in dicta, the portion of the opinion upon which modern lower courts tend to rely, the Court repeated the then-valid doctrine that the Bill of Rights does not apply to the states. Dismissing the First Amendment count, the Supreme Court found that despite the passage of the Fourteenth Amendment, the First Amendment to the Constitution "was not intended to limit the powers of the State governments in respect to their own citizens, but to operate on the National government alone."[89] Under the Court's construction, because the right of the people to peaceably assemble was neither "created" by the Constitution, (p.979)nor "was its continuance guaranteed, except as against congressional interference,"[90] the people must look to the states for protection of this right.[91]
The Court relied on much the same reasoning in dismissing the claim that the defendants conspired to hinder the complainants' right to "[bear] arms for a lawful purpose."[92] First noting that "bearing arms for a lawful purpose" was "not a right granted by the Constitution,"[93] the Court held that the Second Amendment's language "means no more than it shall not be infringed by Congress."[94] Concluding the short paragraph dealing with the Second Amendment, the Court stated that internal police powers were "not surrendered or constrained by the Constitution of the United States."[95]
The Supreme Court devoted exactly one paragraph in the entire opinion to the Second Amendment issue, an issue that was arguably ill-framed in the first place. Not only was there little analysis, but what analysis there was with regard to the First Amendment issue is now outdated when considered in light of the Supreme Court's incorporation decisions.[96] Yet, lower courts continue to cite this case for the proposition that the Second Amendment poses no obstacle to state gun control legislation, even if it amounts to an outright ban on certain types of arms. While lower courts have little choice but to apply Supreme Court precedent as it exists, the Court itself should revisit this decision, applying the criteria it has adopted for the incorporation of every other constitutional provision.[97](p.980)
2. Presser v. Illinois
The only other Supreme Court case that addresses in any detail the applicability of the Second Amendment to the states is the case of Presser v. Illinois.[98] In light of the development of subsequent Supreme Court doctrine, modern reliance on the logic of Presser, like that of Cruikshank, is anachronistic and begs for reexamination.
Presser was charged with violating an Illinois statute that made it a crime for "any body of men" other than "the regular organized volunteer militia of [Illinois], and the troops of the United States, to associate themselves together as a military company, or organization, or to drill or parade with arms" in the cities or towns of Illinois without a license of the Governor, who had unlimited authority to revoke that license.[99] In September of 1879, Presser and 400 fellow members of a society calling itself Lehr und Wehr Verein,[100] marched without gubernatorial license in the streets of Chicago.[101] Presser was convicted and fined ten dollars.[102]
Presser complained that this law of Illinois had the effect of depriving him of his Second Amendment right to keep and bear arms.[103] The Court answered that the right to gather as a group and hold armed parades was not included in the right to keep and bear arms and that "the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States."[104] The Court, of course, cited Cruikshank for support of this proposition.[105] Curiously, the Court, in dicta, suggests that to the extent that state citizens are also members of the national militia, state (p.981)regulation which prohibited "the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security" would not be sustainable, "even laying the [Second Amendment] out of view."[106] The Court did not explore that point further because it felt the Illinois statute in question was a valid exercise of the state's police power.[107] But the dicta of the case suggests, independent of the Second Amendment, that the state's right to restrict the lawful bearing of arms is not absolute. As one commentator notes,
Subsequent courts have found it convenient, however, to ignore this loose thread left by the Presser Court.[109]
[80] See, e.g., Quilici, 695 F.2d at 269. In Quilici, the Seventh Circuit upheld an ordinance passed by the city of Morton Grove, Illinois that, in essence, banned the possession of handguns within the city limits. Id. at 263. In its decision, the Seventh Circuit cited Presser v. Illinois, 116 U.S. 252 (1886), as controlling. Id. at 269. The court held that Presser "plainly states that '[t]he Second Amendment declares that it shall not be infringed, but this ... means no more than it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government....'" Id. (quoting Presser, 116 U.S. at 265). For a discussion of Presser, see infra notes 100-10 and accompanying text.
[81] 92 U.S. 542 (1875).
[82] See Henigan, supra note 3, at 112 n.23.
[83] Cottrol & Diamond, supra note 3, at 347.
[84] The section made it a crime if
Id. at 347 (citing 16 Stat. 141 (1870)).
[85] Cruikshank, 92 U.S. at 548.
[86] Id. at 551.
[87] Id. at 553.
[88] See Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 159 (1984) ("The federal courts ... could not offer relief against defendants accused of conspiracy to deprive complainants of their freedom of action and their firearms, for these violations were common-law crimes actionable only at the local level.").
[89] Cruikshank, 92 U.S. at 552.
[90] Id.
[91] Id.
[92] Id. at 553.
[93] Id. Cf. Eckert v. Philadelphia, 477 F.2d 610, 610 (3rd Cir. 1973) (stating that "the right to keep and bear arms is not a right given by the United States Constitution"); U.S. v. Kozerski, 518 F. Supp. 1082, 1090 (D.N.H. 1981) ("It is well established that the Second Amendment is not a grant of a right but a limitation on the power of Congress and the national government ....").
[94] Cruikshank, 92 U.S. at 553.
[95] Id.
[96] See Gitlow v. New York, 268 U.S. 652 (1925) (assuming that the First Amendment operated as a restraint on state governments). Even though not all of the Bill of Rights has been applied to the states through the Due Process Clause of the Fourteenth Amendment, the extreme reliance of the Supreme Court's dismissal of the Second Amendment claim in Cruikshank upon their rationale for the dismissal of the First Amendment claim in the same case seems to preponderate in favor of at least a reexamination by lower courts of the Cruikshank decision's rationale.
[97] See Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968). While the jury may still be out on whether the Due Process Clause of the Fourteenth Amendment was actually meant to incorporate the Bill of Rights, unless the Court is prepared to repudiate a doctrine it has developed over a half century of decisions, it ought to at least be consistent in its application of existing doctrine.
[98] 116 U.S. 252 (1886).
[99] Id. at 253 (quoting Ill. Mil. Code Art. XI (1879)).
[100] The Supreme Court's opinion notes that the group was incorporated under the laws of Illinois and stated its aim, in its charter, as having the purpose of "improving the mental and bodily condition of its members" that they may be qualified "for the duties of citizens of a republic." This goal it intended to accomplish through "knowledge of ... laws and political economy ... and ... in military and gymnastic exercises." Id. at 254.
[101] Id. U.S. at 254-55.
[102] Id. at 254.
[103] Id. at 264.
[104] Id. at 265.
[105] Id. "The ... proposition to the effect that Cruikshank held that the Second Amendment is not a limitation on the states ignored that Cruikshank did not involve state infringement of rights." Halbrook, supra note 88, at 160.
[106] Id.
[107] Id. at 265-66.
[108] See Halbrook, supra note 88, at 161.
[109] See, e.g., Quilici, 695 F.2d at 269.
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I have no idea how to link this whole thing, I will e-mail if you send me a place to.
I love it when all of these "big government" haters get caught defending it. The irony is delicious.
Tex, what is the irony in an amendment that holds states to the same LIMITATIONS as the fedgov, boy. How is that "defending big government" Being a smug ass don't trump much you know. And I don't care how old you are, two years of experience repeated fourty times is still ignorence.
Site Cruikshank all you want. It is lousey case law based on Judicial racism and says more about you sweethearts than it does about RKBA.