A Layman's Walk Through Key Second Amendment History in the Courts
By Robin Juhl
(RKJ)
Past Chairman, San Antonio Tea Party
DISCLAIMER: Do realize that I am not a lawyer, nor do I play on on TV. These explanations are MY UNDERSTANDING of the current case law and may be determined by a judge to be flawed and result in you going to jail if you act rashly based upon them. Study this yourself and consult your attorney before mouthing off to a cop or to a court!
Let's begin with how bad it got. Over one hundred and fifty years ago, in a decision called DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856), the US Supreme Court explained why black folks could not possibly be citizens and enumerated the rights of white men:
More especially, it cannot be believed that the large slaveholding [SIC] States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them 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. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State. [Emphasis added by RKJ]
This right to “keep and carry arms wherever they went” was continuously whittled down by state and local laws. The Gun Control Act of 1934 put a tax on things like machine guns, silencers, and sawed-off shotguns. In the first Supreme Court case to directly address the Second Amendment, UNITED STATES v. MILLER, 307 U.S. 174 (1939), there was nobody representing the defense, just the prosecutors. So, even though the members of the court knew that sawed-off shotguns were useful in trench warfare, they couldn't use that fact. They used the phrase “not within judicial notice” to make that point when they said:
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.
Note here the question they presented was whether the weapon was part of ordinary military equipment. They then discussed the history of the Militia and sent the case back for a lower court to sort out. Since Mr. Miller was long missing and presumed dead, that never happened.
This was swiftly morphed into “there is no right to own a weapon” by every circuit court in the nation. It became so bad that a law was passed that those who had a misdemeanor conviction for domestic violence or even so much as a restraining order for any kind of domestic violence were not allowed to own or even touch a weapon: 18 U.S.C. 922(g)(8)(C)(ii).
The first crack appeared in a case in Texas, U.S. versus Emerson, No. 99-10331 (2001), where the U.S. Court for the Northern District of Texas ruled that this law violated Timothy Emerson's Second Amendment rights. The official position of the U.S. Attorney prosecuting the case when it was on appeal to the Fifth Circuit Court of Appeals was summed up in their decision (the numbers in parentheses refer to footnotes not included here):
In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia.(9) This "states' rights" or "collective rights" interpretation of the Second Amendment has been embraced by several of our sister circuits.(10) The government commended the states' rights view of the Second Amendment to the district court, urging that the Second Amendment does not apply to individual citizens.
Proponents of the next model admit that the Second Amendment recognizes some limited species of individual right. However, this supposedly "individual" right to bear arms can only be exercised by members of a functioning, organized state militia who bear the arms while and as a part of actively participating in the organized militia's activities. The "individual" right to keep arms only applies to members of such a militia, and then only if the federal and state governments fail to provide the firearms necessary for such militia service. At present, virtually the only such organized and actively functioning militia is the National Guard, and this has been the case for many years. Currently, the federal government provides the necessary implements of warfare, including firearms, to the National Guard, and this likewise has long been the case. Thus, under this model, the Second Amendment poses no obstacle to the wholesale disarmament of the American people. A number of our sister circuits have accepted this model, sometimes referred to by commentators as the sophisticated collective rights model.(11) On appeal the government has abandoned the states' rights model and now advocates the sophisticated collective rights model.
The third model is simply that the Second Amendment recognizes the right of individuals to keep and bear arms. This is the view advanced by Emerson and adopted by the district court. None of our sister circuits has subscribed to this model, known by commentators as the individual rights model or the standard model. The individual rights view has enjoyed considerable academic endorsement, especially in the last two decades. [Emphasis added by RKJ]
The decision by the Fifth Circuit Court of Appeals said the Second Amendment protected an individual right, but that the law in question did not unduly infringe on that right. They also included a long discussion on the history of the Militia. It was appealed to the U.S. Supreme Court, but they did not accept the case. We then had the absurd situation that the Second Amendment was considered to protect an individual's right in one circuit court's jurisdiction, but not in the rest of the country.
Then came Heller! Specifically, 554 U. S. ____ (2008), District of Columbia Et Al v. Heller, No. 07–290. Argued March 18, 2008—Decided June 26, 2008. The District prohibited guns in the home, except in some very restricted cases and with really strict rules. Heller is a guard at a U.S. Court, who carried a gun in court rooms but couldn't have one at home. This was pure Second Amendment; no states were involved. In the second case in which it had ever directly addressed the Second Amendment, the court ruled as follows (there's a LOT here, do take each point slowly before moving to the next):
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Anti federalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
This, gentle reader, was a major victory. But it only applied to the Federal government. States like New York and cities like Chicago were not directly affected. So, within hours of this decision being announced, a lawsuit against Chicago was filed, McDonald versus Chicago, No. 08-1521. Why Chicago? Because it's laws almost exactly matched the District of Columbia's. It's moved up through the lower courts and now the question the U.S. Supreme Court has decided to address is:
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.
Just what that means will have to be covered in another document. But believe me – getting the question framed that is already a major victory!
The official website, www.chicagoguncase.com, says the case “will be argued Tuesday, March 2, 2010 at 10:00 a.m.” Lord, I cannot wait!