Firearm case law
Firearm case law are numerous in United States history. While many deal with Second Amendment issues, many others deal with other issues of the constitution. The Second Amendment to the United States Constitution is part of the Bill of Rights. It states 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.
The interpreation of the Second Amendment has only been addressed by the Supreme Court on a relatively narrow scope, and seldom at that. However, the amendment has more commonly been addressed by lower courts and often with conflicting results. New interpretations of the original Second Amendment would especially begin to gain strength around 150 years after its writing, or around the 1940's. From the adoption of the Bill of Rights in 1791 until 1905, the United States courts strictly interpreted the Second Amendment as an individual right.
In 1905 the Kansas Supreme Court in Salina v. Blaksley [1] made the first collective right interpretation. This trend would continue throughout much of the latter half of the 20th century, until recent, thorough scholarly analysis of the context of the Second Amendment has begun to reverse this trend, and bring its interpretation more in line with the time of its conception ([2],[3], [4]). However, there remains much conflict as to its interpretaion within the courts, largely because the Supreme Court has always refused, and continues to refuse, hearing a case where the central issue is interpreting individual vs. collective rights within the context of the Second Amendment and Bill of Rights.
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1.1 Supreme Court cases relating directly with the Second Amendment |
Supreme Court cases
Supreme Court cases relating directly with the Second Amendment
- United States v. Miller (1939) [5] - The only Supreme Court case which was directly related to the issues of the Second Amendment at the heart of the case. The court stated in part:
"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... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
Supreme Court cases mentioning the Second Amendment
- Dred Scott v. Sandford (1857) [6] - The court ruled that Mr. Scott did not enjoy the protection of the Bill of Rights because of his racial background. However, in its ruling, it implies that all free men do have the right to bear arms by indicating what would happen if he was indeed afforded full protection of the Bill of Rights:
"It would give to persons of the negro race, ... the right to enter every other State whenever they pleased, ... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."
- United States v. Cruikshank (1876) [7] - A post Civil War era case relating to the Ku Klux Klan depriving freed slaves basic rights such as freedom of assembly and to bear arms. The court ruled that the First and Second Amendments "was not intended to limit the powers of the State governments in respect to their own citizens" and "has no other effect than to restrict the powers of the national government," respectively. In summarly, it ruled that individuals could not file charges against other citizens in federal court regarding violations of their constitutional rights. It was up to the states to protect the fundamental rights of its citizens when their rights were abridged by other citizens.
- Duncan v. Louisiana (1968) [8] - A Supreme Court case which incorporated the Sixth Amendment right to a jury trial at the state level as required by the Fourteenth Amendment. In the court's written opinion, the court used a statement by Senator Howard, who introduced the Fourteenth Amendment, to help validate their ruling that the Bill of Rights as a result of the Fourteenth Amendment forces states, and not just the federal government, to protect the same individual rights enumerated in the Bill of Rights:
"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution ...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 [391 U.S. 145, 167] to each and all the people; the right to keep and to bear arms..."
- United States v. Lewis (1980) [9] - Ruling that Congress may prohibit felons from possessing firearms:
"This Court has recognized repeatedly that a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm."
- U.S. v. Verdugo-Urquidez (1990) A case dealing with nonresident aliens and the Fourth Amendment, but led to a discussion of who are "the People" when referred to in the Constitution:
"[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 Amendments provide that certain rights and powers 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 Amendments, and to whom rights and powers 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. "
Circuit Court cases relating directly to the Second Amendment
The Second Amendment currently applies to individual rights in certain State jurisdictions, while not in others.
Fifth Circuit Court of Appeals
- United States v. Emerson (2001) [10] - Fifth Circuit Court of Appeals ruling that the Second Amendment does apply to individual rights, not to collective rights, to bear arms. The court partly stated:
- "There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words 'the people' have a different connotation within the Second Amendment than when employed elsewhere in the Constitution."
- We hold . . . that it protects the rights of individuals, including those not . . . actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms . . . that are suitable as personal, individual weapons."
Ninth Circuit Court of Appeals
- Silveira v. Lockyer (2002) [11] - Ninth Circuit Court of Appeals ruling that the Second Amendment does not apply to individual rights:
"Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision."
Tenth Circuit Court of Appeals
- United States v. Haney (2001) [12] - Tenth Circuit Court of Appeals ruling that the Second Amendment only applies to a well regulated militia, not to individuals. In this case, Mr. Haney constructed two machine guns and voluntarily turned himself into the police and allowed a search of his premises in order to challenge the machine gun ban 922(o) on Second Amendment constitutional grounds. However, his circuit court ruled:
"we hold that a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia. This is simply a straightforward reading of the text of the Second Amendment."
- United States v. Baer (2000) [13] - Tenth Circuit Court of Appeals rejected a "time-worn" Second Amendment challenge to the federal felon-in-possession law, noting that:
"the circuits have consistently upheld the constitutionality of federal weapons regulations like [this one] absent evidence that they in any way affect the maintenance of a well regulated militia."
- United States v. Oakes (1977) [14] - Tenth Circuit Court of Appeals court ruled that:
"we rejected a Second Amendment challenge to the federal law criminalizing possession of an unregistered machinegun, 26 U.S.C. § 5861(d). We found no evidence that the firearm in question was connected with a militia, even though the defendant was nominally a member of the Kansas militia and the "Posse Comitatus," a militia-type organization registered with the state..."
State Supreme Court rulings
- Presser v. Illinois (1886) [15] - Illinois Supreme Court declaring that although individuals have the right to keep and bear arms, the state law prohibiting common citizens from forming personal military organizations, and drilling or parading, is still constitutional because prohibiting such personal military formations and parades does not limit one's personal right to keep and bear arms:
"We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms."
- Salina v. Blaksley (1905) [16] - Kansas Supreme Court with very little to no historical context study, made the first ruling in U.S. history to re-interpret the Second Amendment. It ruled that the Bill of Rights provisions only applied to members of an organized militia or members of the military. Its final line concludes:
"The defendant was not a member of an organized militia, nor of any other military organization provided for by law, and was therefore not within the provision of the Bill of Rights, and was not protected by its terms."
Court rulings relating to the 1986 Gun Owners Protection Act
- Farmer v. Higgins (1990) [17] - Eleventh Circuit Court of Appeals ruling that the ATF does not need to register new machineguns for private ownership under the exception of 18 USC 922(o)(A)(1).
- United States v. Warner (1993) [18] - Tenth Circuit Court of Appeals ruling regarding Mr. Warner, who was caught in Utah with a machine gun and convicted on 922(o), possession of a machine gun. Mr. Warner appealed on the basis that the Utah constitution allows its citizens to bear arms, and that therefore he is exempt based on 922(o)(2)(A), "under authority of the State." However, the court over ruled this, citing the Farmer case saying that machine guns were not meant to be in private hands, and that although the Utah law gives permission to own automatic firearms, it did not grant him authority.
- United States v. Rock River Armory (1991) [19] - United States District Court ruling that one cannot be prosecuted for 1934 National Firearms Act violations for machineguns prodcued after 1986:
"...since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional."
Firearm laws challenged on the Commerce Clause
- United States v. Lopez (1995) [20] - The first modern Supreme Court case to set limit on Congress' power under the Commerce Clause.
- United States v. Stewart (2005) [21] - A case on the Supreme Court docket regarding the legality of homemade machine guns. The Ninth Circuit Court of Appeals has already ruled that the Federal government does not have power under the commerce clause to regulate possession of machineguns.
"...a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is highly attenuated."
Other government statements on the matter
- United States Department of Justice provided one of the more thorough historical government analysis of the Second Amendment. In a 2004 report [22], the DOJ states that it interprets the Second Amendment to explicitly apply to individual rights, not collective rights. Their conclusion read:
"For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views."
- United States Senate subcommittee on the Constitution, chaired by Orrin G. Hatch, submitted a report in 1982 [23] with a definitive conclusion that the Second Amendment was written with the intent of individual rights:
"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."
External links and references
- Arms and the law - A web site with review and analysis of firearm case law
- NRA list of firearm court cases
- Guncite - List of Supreme Court cases related to the Second Amendment on Guncite
- Supreme Court cases - Comprehensive list of Supreme Court cases which deal with firearms
- State Supreme Court cases - Comprehensive list of State Court cases which deal with firearms