The Second Amendment is one of most fundamental provisions of the Bill of Rights, and one of the most fiercely debated. Since it was first put to paper, legal scholars, gun owners and anti-gun activists have engaged in an endless discussion over the meaning and scope of the Second Amendment, and for most of that time, gun owners have been on the losing side of the argument.
Time and again, the pro- and anti-gun factions of American society have appealed to the Supreme Court, the last judge of the law, for a resolution of their differences. Except in its earliest ruling on the Second Amendment, the Supreme Court held that American citizens had no inherent right to bear arms. According to the highest court in the land, the Second Amendment only protected the states’ right to maintain a militia, not an individual’s right to possess firearms.
Gun owners were not the only ones affected by the Supreme Court’s earliest interpretation of the Second Amendment. Under the same ruling that allowed states to restrict gun ownership, states were also allowed to pass laws to favor certain religions, ban certain kinds of speech and outlaw certain kinds of assembly. By restricting the Second Amendment, the Supreme Court left the First Amendment seriously weakened for many years. In a very real way, the right to bear arms is the guarantor of all other rights, and any threat to the Second Amendment endangers the entire Bill of Rights.
It was only in 1925 that the Supreme Court ruled that states had to respect the First Amendment, guaranteeing freedom of speech, press, religion and assembly. It would take nearly another century for the Supreme Court to protect the Second Amendment from the states and to guarantee an individual’s inviolable right to keep and bear arms for hunting and self-defense.
As a gun owner and an American citizen, you have a duty to defend your rights. Simply exercising your right to gun ownership is not enough. It’s also imperative you learn the history of landmark Second Amendment Supreme Court cases that have decided and will continue to decide the scope of our gun rights in the years to come.
Selective v. Total Incorporation
For most of its history, the Supreme Court has applied the Bill of Rights selectively to state and local governments, particularly with the Second Amendment.
Even the Supreme Court led by Chief Justice Earl Warren, which incorporated almost all the provisions of the Bill of Rights in the 1960s, largely ignored the Second Amendment. Until very recently, the Supreme Court has ruled that the Second Amendment is not “fundamental” to liberty, unlike the rights to freedom of speech, religion and assembly, which state laws cannot restrict.
From United States v. Cruikshank in 1875 to District of Columbia v. Heller in 2008, the Supreme Court held that states can impose broad restrictions on firearm possession without violating the Constitution or the Bill of Rights. Thanks to the decisions handed down in Columbia v. Heller in 2008 and McDonald v. Chicago in 2010, states are now bound to respect the Second Amendment. Even today, however, firearm possession is not an unlimited right. State and local governments are allowed to restrict and regulate firearms in a “reasonable” manner.
United States v. Cruikshank (1875)
The United States v. Cruikshank was the Second Amendment’s first real test under the incorporation doctrine. For gun owners, Cruikshank marked the start of more than a century of unchecked regulation by the states.
The case arose during a disputed gubernatorial election between Reconstruction Republicans and Democrats in Louisiana. Both the Democratic and Republican candidates for governor claimed victory. President Ulysses S. Grant sent in federal troops to support the Republican government, but Democrats refused to acknowledge their loss.
The state’s nearly all-black militia gathered at the Colfax County courthouse to prevent the Democratic candidates from assuming local offices. Members of the White League, an armed paramilitary group of white Democrats, attacked and killed more than a hundred militiamen, an event which became known as the Colfax County Massacre.
Because state courts would not bring murder charges against whites for killing blacks, federal charges were brought against the White League for violating the black militiamen’s right to bear arms and freely assemble.
The Supreme Court overruled the convictions of Cruikshank and other White League members, arguing that the First and Second Amendments apply only to the federal government, not state or local governments nor individual citizens. The Court wrote that the “Second Amendment has no other effect than to restrict the powers of the National Government.”
In legalese, the Supreme Court ruled that the right to keep and bear arms is an “unincorporated” right, and only Congress was barred from restricting the Second Amendment, not states or individuals. Although states could restrict citizens’ gun rights, they couldn’t outlaw guns altogether. Doing so would deprive the United States of its “well regulated militia.”
The Court held in United States v. Cruikshank that the individual had no inherent Second Amendment rights. For more than a hundred years, this interpretation of the Second Amendment would go largely unchallenged. An individual’s right to bear arms would be left up to the states, to allow or restrict as they deemed fit.
Presser v. Illinois (1886)
The next major Supreme Court case about the Second Amendment came a decade after United States v. Cruikshank, and supported its conclusion that states had the power to restrict the right to keep and bear arms.
It started in Illinois, where Herman Presser gathered and trained his fellow German-American industrial workers in military drills, maneuvers and tactics. They called themselves the Instruct and Defend Association. Presser wanted to build a militia to oppose the private security firms like Pinkerton that were often hired by employers to break strikes and intimidate workers.
After Presser and four hundred of his fellow militiamen paraded through Chicago armed with rifles, he was arrested and charged with violating the state’s laws against military organizations. Presser argued that the state’s law was unconstitutional, as the Second Amendment granted him the right to form and maintain his own “well regulated” militia.
The Supreme Court affirmed the judgment it had made in the Cruikshank case: the Second Amendment did not apply to the states and so the states were free to regulate or ban private militias and guns in any way they chose.
The Court also interpreted the Second Amendment only to guarantee a state’s right to maintain a “well regulated” militia, but not an individual’s right to bear arms. In other words, outside of service in a state-approved militia, citizens had no inherent, personal or private right to bear arms for the purposes of hunting or self-defense.
United States v. Miller (1939)
In 1934, the Roosevelt administration signed the National Firearms Act into law. The NFA was inspired by the government’s failed Prohibition policy under the Eighteenth Amendment and the explosion of heavily armed organized crime that followed. The NFA imposed a $200 mandatory registration tax on so-called Title II weapons like machine guns, short-barreled rifles, shotguns and suppressors that were allegedly popular with bootlegging gangsters. In today’s dollars, that tax would be about $3,540, which made purchasing such Title II weapons very expensive for law-abiding citizens and bootleggers alike.
In addition to paying the tax and registering the weapon with the Miscellaneous Tax Unit, which would later be folded into the Bureau of Alcohol, Tobacco, Firearms and Explosives, owners of Title II weapons had to secure written permission from the agency before moving a controlled weapon across state lines.
United States v. Miller began when a pair of bank robbers, Frank Layton and Jack Miller, were stopped by a patrolman while traveling from Oklahoma to Arkansas in 1939. The two men were carrying an unregistered sawed-off shotgun and were arrested under the NFA’s Title II weapons provision.
Miller and Layton challenged the National Firearms Act as a violation of the Second Amendment, but skipped town during the Supreme Court’s deliberation.
With no one to speak for the plaintiffs, the government held that the National Firearms Act was constitutional, arguing that the law was a revenue-collecting measure only, and not a gun control law. Because Miller and Layton transferred the shotgun across state lines, it fell under the Commerce Clause of the Constitution, which grants the federal government the right to regulate interstate trade.
The government also argued that the Second Amendment only protects the right to keep and bear arms that could reasonably be used by a “well regulated militia.” Other than point out that Miller’s shotgun had never been used in militia service, the government made no compelling argument that sawed-off shotguns could never have a place in a militiaman’s hands. The argument rested on the “collective” interpretation of the Second Amendment, which holds that the right to keep and bear arms exists only to guarantee the states’ right to an effective militia, and is not an inherent individual right.
The Supreme Court favored the government’s argument and held the NFA was constitutional, but the Miller decision remains controversial to this day. Because the Supreme Court accepted the government’s argument that only guns that could “reasonably” be used in a militia are protected by the Second Amendment, by its own admission, machine guns could very well be protected.
Years later, the Supreme Court would reinterpret the Miller decision to mean that the Second Amendment only applies to certain kinds of weapons, but did not decide whether those are related only to militia service or to hunting and personal defense.
The constitutionality of California’s assault weapons ban, which rests on the Miller decision allowing restrictions on “unusual” or “dangerous” guns, is now being challenged in light of the Supreme Court’s recent rulings in Heller and McDonald.
United States v. Lopez (1992)
The passage of the Gun-Free School Zones Act of 1990 (GFSZA) was a major victory for gun control advocates who desired to extend the federal government’s reach into local affairs. This legislation banned the possession of firearms in the vicinity of schools.
These notorious “gun-free” zones have been a source of controversy for staunch defenders of the Second Amendment, but most of these gun rights supporters forget that this law met a noticeable challenge during the early 90s.
On March 10, 1992, 12th-grade student Alfonso D. Lopez, Jr. attended Edison High School in San Antonio, Texas, carrying a concealed .38 caliber revolver, along with five cartridges. Although the gun was not loaded and Lopez claimed that he was delivering the weapon to another person in exchange for $44, authorities arrested Lopez for violating the GFSZA.
What seemed like a routine arrest soon turned into a heated legal challenge. Lopez first moved to dismiss the charge on the grounds that the GFSZA was unconstitutional because Congress does not have the power to legislate control over public schools. The trial court denied the motion, ruling that the GFSZA was “a constitutional exercise of Congress’ well defined power to regulate activities in and affecting commerce, and the ‘business’ of elementary, middle and high schools…affects interstate commerce.”
Lopez was tried and convicted. Not giving up on his case, he went to the Fifth Circuit Court of Appeals, claiming that the GFSZA went beyond Congress’ power to legislate under the Commerce Clause. The Fifth Circuit agreed with his argument and overturned his conviction, maintaining that “section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause.”
The Supreme Court accepted the case, where the government’s main arguments were that carrying a firearm in an educational institution would increase violent crime, which would consequently affect general economic conditions in three ways:
- Due to violent crime causing harm and subsequently creating expenses, insurance costs then rise, which spread throughout the economy.
- The presence of guns would negatively affect people’s willingness to travel in areas that appear to be unsafe.
- Guns at school would lead to students becoming scared and disturbed – hindering the learning process and leading to a weaker economy.
After much debate in the highest court of the land, the Supreme Court reached a majority decision headed by Chief Justice Wiliam Rehnquist. It ruled that Congress’ lawmaking authority under the Commerce Clause is broad, but said power does not extend to the regulation of firearms carry.
In a dissenting opinion, Associate Justice Stephen Breyer made the case that Congress has the power to regulate handgun possession under the Commerce Clause due to gun violence potentially having a substantial effect on interstate commerce by making educational environments less safe.
After this decision was made, the GFSZA was amended in a way that only covered guns that were transported through interstate commerce. Today the legislation makes it “unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.”
With the Supreme Court not approaching this subject since the 90s, several Congressmen such as Kentucky Representative Thomas Massie have introduced legislation to repeal the GFSZA and let local school districts craft their own security policies.
District of Columbia v. Heller (2008)
The Second Amendment did not fully protect an individual’s right to keep arms for self-defense until a policeman challenged the District of Columbia’s handgun ban in 2008.
Since 1976, the District had implemented a covert ban on handguns by prohibiting residents from carrying unregistered handguns while refusing to issue any registrations. Residents could have an unregistered handgun in their homes, but it had to be unloaded, disassembled or rendered inoperable by a trigger lock.
Under the ordinance, residents of the District could not even carry an assembled, loaded handgun from room to room in their own homes without a registration!
Dick Heller, a D.C. special policeman, applied to register a handgun he planned to keep loaded in his home. The District refused, and Heller filed suit on Second Amendment grounds to overturn the ordinance.
After a narrow 5-4 vote, the Supreme Court held that D.C.’s handgun ban violated an individual’s Second Amendment right to bear arms for lawful purposes such as self-defense.
Crucially, the Supreme Court ruled that the right to keep and bear arms is an individual right, unconnected with service in a militia. 122 years after Presser, the “individual” interpretation of the Second Amendment finally got its day in court and won.
The Court’s opinion, written by the late Justice Antony Scalia, was careful to make sure the Heller decision could not be interpreted too broadly.
“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 and for whatever purpose,” Scalia wrote.
The Court’s decision in Heller could not be used to overthrow laws preventing felons and the mentally ill from buying firearms, or allow citizens to carry firearms into schools or government buildings. The Court ruled that only weapons “in common use” like handguns are protected by the Second Amendment and that dangerous or unusual weapons could still be prohibited.
The Supreme Court’s decision in Heller established the individual’s right to keep and bear arms in federal enclaves like the District of Columbia, but it did not prevent states from continuing to put blanket restrictions on firearms. The right to keep and bear arms was not fully incorporated to the states until 2010, in McDonald v. Chicago.
McDonald v. Chicago (2010)
The case arose when a few Chicago residents challenged a city ordinance that effectively banned the possession of handguns.
Like the District of Columbia, Chicago banned handguns by requiring them to be registered while refusing to issue any registrations.
Otis McDonald, a retired maintenance engineer and a hunter, legally owned shotguns. But he thought they were unwieldy in the event of a robbery, and so he wanted to purchase and register a handgun to defend his home. In 2008, McDonald joined three other Chicago residents in a lawsuit to challenge Chicago’s handgun ban as a violation of their Second Amendment rights.
In another narrow 5-4 decision, the Supreme Court held that the Second Amendment applies to the states and reaffirmed its ruling under Heller that the right to keep and bear arms is an individual right guaranteed by the due process clause of the Fourteenth Amendment. The decision overturned United States v. Cruikshank, where the Supreme Court held that the Second Amendment is an unincorporated right that applies only to the federal government and not to the states.
The Court’s opinion, written by Justice Alito, argued that the individual right to keep and bear arms for self-defense is “deeply rooted” and “fundamental” to the American ideal of liberty, and that handguns were the “quintessential self-defense weapon.” The Court also struck down Chicago’s requirement to keep handguns in the home unloaded and inoperable, arguing that it interfered with the lawful use of handguns for self-defense.
The McDonald case upheld the individual’s right to possess guns for self-defense and hunting, again overruling the “collective” interpretation of the Second Amendment established by the Presser case, which held that the right to bear arms only exists to support the states’ right to an effective militia.
After nearly a century and a half of debate, the Supreme Court ruled that the individual’s Second Amendment right to keep and bear arms for lawful purposes could not be abridged by the states.
Current Challenges: 2nd Amendment Supreme Court Cases
The Supreme Court’s landmark decisions in Heller and McDonald have led to a host of challenges to state and municipal restrictions on the right to bear arms.
In 2014, in Palmer v. District of Columbia, a federal judge overruled the District’s ban on carrying ready-to-use firearms in public. The same year, a federal judge struck down New York’s seven-round ammunition limit (10 rounds if being used in an incorporated firing range). In Peruta v. County of San Diego and Richards v. Prieto, the Ninth Circuit Court of Appeals removed restrictive concealed-carry requirements in some California counties – both Peruta and Prieto overturned by 2017.
Gun rights advocates are finally on the winning side, but serious obstacles still remain. Legal challenges to assault weapon bans in California and New York have failed even in light of the Supreme Court’s rulings in Heller and McDonald, thanks to the controversial legacy left by the Miller case.
California’s Fourth District Court ruled in 2013 that AK- and AR-type semi-automatic rifles are at least as “dangerous” and “unusual” as short-barreled shotguns, which were prohibited by the Miller decision. While outright assault weapon bans have not made it out of lower-level state and federal courts, blocked by the Miller ruling that only weapons “in common use” are protected by the Second Amendment, California is seeing some substantial gun restrictions going into 2018.
In the absence of a definitive Supreme Court ruling, it’s still up to the states to decide which types of weapons are “dangerous” or “unusual.”
“The Supreme Court and the Second Amendment: Understanding the Court’s Landmark Decisions” originally appeared in the Resistance Library on Ammo.com.
This should prove that the Commerce Clause is the stretchiest thing ever invented.
Further, it should also prove beyond any doubt that the ‘law’ is just an opinion and as such isn’t worth spit.
All of our laws are decided by 5 or more black robed lawyers, not our representatives or even considering the negative rights of the government established by the Constitution.
People should realize that all the laws are just the opinions of people in positions of unearned authority and power.
I, for one, have no moral obligation to obey any law as I wasn’t consulted in its drafting. The fact that force has to be used to get people to ‘obey’ much of the law should indicate that much of the law is unjust.
The very idea that some entity should decide right from wrong is absurd. The fact that judges interpret the laws should clearly signal that these are whims to be used or not used at the discretion of the ‘rulers’. That’s why none of the scum at the top ever get what they deserve. They’re a protected class that writes and administers the rules as they see fit.
There are a few laws that I would say are totally worth following and if everyone did follow them, we would all live in a much better land. These laws can be found in the Book of Exodus and were handed down from the mouth of God. There is one other found in the Gospel of John, handed down by the Son of God.
I would go with the Non Aggression Principle as sufficient. Any violator of that principle is a predator and needs to be killed by the on the first offense.
If I am understanding you correctly, it would be a put up or shut up sorta thing. If that is the case I agree.
It is the duty of every Citizen to understand their role in the Judicial System. Using the power of Nullification, it is the Jury’s who have the true power in our country, although not 1 in 1000 people understand this.
It is the Jury’s duty to judge not only the guilt or innocence of the accused, but to judge the law itself and if the law is just. Government is the servant of the Citizens, and as such cannot judge its masters. Citizens can only be judged by their peers, who are other Citizens.
The jury is well within its powers to find a person innocent who has been charged with a crime if they find the law which establishes the crime to be unjust.
This became very common during prohibition, when the government could not find juries to convict people of selling or consuming alcohol. The reason for this was the Citizens felt prohibition was unjust, and that the government laws against alcohol were unconstitutional, and the government was not representing the will of the people.
Jury nullification was established by our forefathers to ensure government could never use its power to unjustly imprison its Citizens.
If you do not understand Jury Nullification, please take the time to study it, and to understand your duty and your power as a Citizen Juror.
The Congress writes laws, the Supreme Court interprets laws, but it is the Citizen Juror who actually sits in judgement and enforces the laws. If the Citizens do not judge the laws to be in the spirit of justice, they have the power to release the persons being accused.
Tell me something I don’t already know.
When a prosecutor can get a jury to convict a ham sandwich, your theory of how things are supposed to work goes right out the window.
Judges instruct juries specifically to not do as the law suggests. They are instructed on what verdict to return by NOT using their moral compass. Judges routinely prevent evidence from being presented and are just part of the overall problem of a system of law based upon the prevailing opinions of the ruling class of the day.
Example – people in prison for pot possession when corporations are now established with gov’t approval to sell the stuff.
The entire legal system isn’t worth spit.
You are right, prosecutors are as crooked as a corkscrew and will prosecute a known inocent person in a hearbeat just to increase their conviction record.
And the Judges lie their asses off to the jurrors who do not know any better. The fact remains however it is the jurrors duty to know their power and their duty under the Constitution, and it only takes one jurror to hang the jury and set the accused free.
Supreme Court Justices are merely intellectual political hacks. They are put in place to bull shit people into thinking that the Constitution says what it doesn’t. We need to face reality and realize that the Constitution is what the Judges say it is. They have been Fabian Jurists for 150 years.
This is an outstanding and timely essay in light of the potential Ft. Sumter opening battle brewing in Virginia.
It seems to me the Luciferian Globalists (I believe that is a more accurate label of them than ‘The Deep State’ or the ‘TPTB’ or ‘Elites’ because their leadership are actually demonic parasites) seem desperate with this move to disarm the Commonwealth of Virginia.
It could be because Virginia played key roles in both our previous revolutions:
1. The fight for complete independence from Britain.
2. The Confederacy’s constitutionally legal succession from the economic and political dominance from the North.
I am a huge supporter of the Pro 2nd Amendment Gun Sanctuary City/County resolutions or legislation sweeping the nation, and especially in Virginia.
This is the Red Line in the Sand for those of us who refuse to become serfs of a corrupt and tyrannical government, as once we are disarmed we all know what will eventually happen to us, our children, and our grandchildren.
Just read the Georgia Guidestones. The Luciferian Globalists who put those smug, pure evil threats up are the same ones behind the constant stripping away of your ability to defend yourself and your family, and stopping them from fulfilling their NWO mass murder plans.
https://thesecrettruthabout.com/the-georgia-guidestones-mystery/
The above is the secret truth on why ‘People Control’ through ‘Gun Control’ is being demanded by the Left Wing of the Globalist Vulture Uniparty.
https://www.conservapedia.com/Uniparty
Guns are inanimate objects. I never hear anything about the need for people to be personally responsible for their own actions. Even if you owned a so-called illegal weapon, you would have to make the decision on how it is used. Murder is illegal. The gov. and its thinking and actions aren’t a very good example for much of anything.
.
When the British came to Lexington and Concord to disarm the colonists, George Washington didn’t seek a ruling from a court as to what actions to take.
He shot them.
Washington was not involved with the militia in MA. It was the decision of a local group of men to resist the tyrannical government, just as it should always be the individual, working in concert with his brethren to resist tyranny.
Metaphorically speaking, George Washington shot them.
Who would have ever thought we would need a Harvard Grad to tell us what “shall not be infringed” means…
All unconstitutional laws are null & void.
But under the power grab of Marbury v Madison, a group of black robed lawyers get to tell us what is Constitutional or not. The words of the Constitution mean very little to too many of these scoundrels
that phrase ” common use ” can be very deceiving–if only one or two guys in a unit are issued a sawed off shotgun,is that commom use?i would think so–
during trench warfare in ww1,they used them–a buddy who was a green beret told me that they were used in viet nam–
what is common use ?
The armament of most platoons was the same, ergo a lot of commonality.
The Second Amendment is quite clear on the subject. The wording used is “shall not be infringed”. That can only be interpreted one way as I see it. We should also understand that those words have to be interpreted in or by the usage of the time in which they were penned on the paper. As I see it, all this debate over the Second Amendment is a or should be a non issue. If they come for the guns, then the line has been crossed. Deal with it.
I’ve given up trying to sort all this shit out. I know what I won’t do, and if they force the issue, it’ll end in tears. Past that, I generally only read the headlines because the whole mess is depressing.
The Supreme Court, along with the Senate and the White House, are corrupt institutions bought and paid for by corporate interests.
The Second Amendment is very clear, and was written for the common man to understand. The Second Amendment was not written as a check on government power or even for personal protection, although those rights cannot be denied.
The Second Amendment was written to ensure the security of the nation as it plainly says.
The problem lies in most peoples misunderstanding of the word regulated, the word regulated in the time the Constitution was written meant in good working order.
The militia, is the body of able bodied Citizens which could be called on to defend the country.
The premise behind having a well equipped or armed Citizenry is that the United States could never be successfully occupied by an foreign army provided the Citizens were armed. Once you understand the the words of the 2nd Amendment become clear for anyone to understand.
As Kipling said…. If you can bear to hear the truth you’ve spoken twisted by knaves to make a trap for fools,