The Supreme Court and the Second Amendment

Don Kates Jr

The Court most recently mentioned the Second Amendment in dicta in United States v. Verdugo-Urquidez, 110 S. Ct. 1839 (1990). Verdugo-Urquidez was a citizen and resident of Mexico, and a drug dealer. The Mexican police arrested him in Mexico, and brought him to the U.S., where the U.S. cops arrested him. With the permission of the Mexican police, the U.S. narcs searched his residence (in Mexico), and found documentary evidence detailing drug shipments to the U.S. Verdugo-Urquidez moved for suppression of that evidence as a violation of the Fourth Amendment prohibition against unreasonable searches and seizures. The question for the court: Does the Fourth Amendment apply to non-resident non-citizens outside the U.S.? The answer: "No". The court's reasoning: The Fourth Amendment protects the right of "the people" to be secure against unreasonable searches and seizures. Who are "the people"? According to Chief Justice Rehnquist, the phrase "the people" was a term of art used by the Framers. Rehnquist wrote:

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"); Art. I, s 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. 110 S. Ct. at 1061. Since Verdugo-Urquidez is not part of "the people," he is not protected by the Fourth Amendments (nor, apparently, by the First, Second, Ninth, or Tenth).
The Supreme Court therefore views the words "the people" in the Second Amendment to have the same meaning as in the First, Fourth, Ninth, and Tenth Amendments. If "the people" really meant the right of states to maintain a militia, then we would be left with the absurd notion that only the states have the right to peaceably assemble, only the states have the right to be secure in their persons and property, etc. The Supreme Court's position is indisputable: the Second Amendment protects the individual right to bear arms. Also instructive is the Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session (February 1982):
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.
The following list includes those historical Supreme Court rulings in which the Second Amendment played a central role:

United States v. Miller, 307 U.S. 174 (1939). Mr. Miller was your typical career criminal, charged with a laundry list of crimes. They threw the book at him, including carrying a sawed-off shotgun, a violation of the National Firearms Act of 1934. When his case came up before the Supreme Court, Miller had skipped; he was a fugitive. No lawyer appeared to argue his side of the case; only the government lawyers showed up. (Some fair trial, huh?) Now, if the Second Amendment only protected the state militia, the case would have been easy. All the court would have had to do was say that Miller could not own a gun because he was not a member of the militia, end of discussion. But they didn't say that. Why not? In effect, they conceded that the Second Amendment protects an individual right, but still said that it was constitutional for the government to prohibit sawed-off shotguns. Their reasoning? "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."

There are three interesting things about the court's statement. First, of course it was not in their notice; nobody was present to bring it to their notice! Second, had a knowledgeable advocate been present, he would have brought to the court's notice that short-barrelled shotguns have long been used as ordinary military equipment, from Revolutionary War blunderbusses to luparas in the Spanish-American War to trench-brooms in The War To End All Wars. Subsequently, U.S. troops used sawed-off shotguns in World War II, and "tunnel rats" used them in Vietnam. Third, and most important, is that the court seems to be saying that the Second Amendment only protects the right of individual citizens to have "ordinary military equipment." Very interesting. Using this line or "reasoning", it misght be possible to outlaw "sporting" arms but not so-called "assualt weapons"! What are semi-automatic "assault rifles" if not ordinary military equipment? When California's assault rifle ban reaches the Supreme Court, Miller will present a real problem for the anti-gunners.

There are no other Supreme Court cases in the 20th Century, but there are dozens of state cases that support the individual right to bear weapons (not "sporting goods"). See, for example, State v. Swanton, 129 Ariz. 131 (Ct. App. 1981) ("[T]he term 'arms' as used means such arms as are recognized in civilized warfare... ")

State v. Kessler, 289 Or. 359 (1980) ("[T]he terms 'arms' most likely would include only the modern day equivalents of the weapons used by colonial militiamen.")


State ex rel. City of Princeton v. Buckner, 377 S.E. 2d 139 (W.Va. 1988) Barnett v. State, 72 Or. App. 585 (1985) State v. Delgado, 298 Or. 395 (1984) City of Lakewood v. Pillow, 180 Colo. 20 (1972) City of Las Vegas v. Moberg, 82 N.M. 626 (Ct. App. 1971)

and dozens more.

There were few, if any, gun control laws on the books until after the Civil War. (The few state attempts at firearm regulation had been almost without exception overturned by state courts that considered them in violation of the Second Ammendment, which they considered to apply to the states as well as to the federal government!) Then, suddenly, the Bill of Rights seemed to apply only to the federal government, and every Southern state had a law prohibiting newly-freed slaves from owning guns. (Guess why? It was getting damned dangerous for the Klansmen to lynch blacks.) The Fourteenth Amendment rendered those "Black Codes" unconstitutional, so the Southerners figured out some backdoor methods. One was banning cheap guns (the term Saturday Night Special has its origin in the racial slur "Niggertown Saturday Night," which was similar to "Father's Day in Harlem" or "Chinese Fire Drill.") Another was a permit system/waiting period/ background check, requiring approval of the sheriff, who usually just happened to be a Klansman.

United States v. Cruikshank, 92 U.S. 542 (1876). In Louisiana, a hundred or so good old boys got word that there were some "uppity niggers" having an organizational meeting, to try to protect themselves against constant attacks by white gangs. The good old boys got together and crashed the party. They took away the Negroes' guns, and then proceeded to murder them. They were charged with conspiring to deprive their victims of their constitutional rights to assemble, and to bear arms. The court ruled that (1) the First and Second Amendments did not apply to the states, (2) the Fourteenth Amendment only prohibited the State from depriving the people of their rights, and the good old boys were not agents of the State, and (3) the controlling Enforcement Acts protected only those rights "granted by the Constitution." The court said that the rights to assemble and to bear arms were fundamental rights. They were not "granted" by the Constitution, but were inalienable; they were rights with which the victims were "endowed by their Creator." Therefore, the rights were not protected by the Enforcement Acts, and the KKK boys literally got away with murder! (This is a case proudly cited by many people who call themselves "liberals," instead of the racists they really are.)

Presser v. Illinois, 116 U.S. 252 (1886). Presser had organized a society of German immigrants ("Lehr und Wehr Verein") who believed that regular military drill was an important part of good citizenship. Four hundred of them paraded through downtown Chicago, carrying rifles. Presser was charged with parading without a license, and organizing and maintaining a private army. He claimed that the Illinois statutes violated his rights under the First Amendment (freedom of assembly) and the Second Amendment (right to bear arms). The court ruled that the Bill of Rights applied only to the federal government, not to the States, and that any State could prohibit free speech, free exercise of religion, assembly, bearing of arms, etc. (I wonder how the A.C.L.U., the American Nazis, and the citizens of the Chicago suburb of Skokie would react to this sort of ruling today. Come to think of it, that would also mean that each state sould have its own established religion!) Also, in Presser the Court never mentioned the individual right to bear arms; the case dealt only with an maintaining an armed organization.

Miller v. Texas, 153 U.S. 535 (1894). Texas had a law forbidding the carrying of weapons, and authorizing arrest without warrant for any violation. Miller claimed this violated the Second Amendment and the Fourth Amendment. The Court again ruled that "the restrictions of this amendments operate only upon the Federal power." But they admitted that it was possible that the Fourteenth Amendment might cause the Bill of Rights to apply to the States as well. However, Miller did not raise his objection early enough. "If the Fourteenth Amendment limited the power of the States as to such rights . . . we think it was fatal to this claim that it was not set up in the trial court." Id. at 538.

Subsequent to Cruikshank, Presser, and Miller v. Texas, the Court ruled that the Fourteenth Amendment does in fact cause the Bill of Rights to apply to the States. In effect, those three cases have been invalidated. To believe otherwise is to believe that the States can restrict religion, speech, and assembly, to execute unreasonable searches and seizures, to deny jury trials, or to infringe the right to bear arms.

An important note: the Court never doubted for an instant that the right to bear arms was not an individual right which the Federal government could not infringe. These cases never talked about the Second Amendment being a right of states to organize militias. It has always been assumed that the right to bear arms is a right of individual citizens to bear arms. Perhaps the Supreme Court's most infamous decision was Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Chief Justice Taney said that Negroes could not be "citizens," because if they were, they would have the right to vote, to assemble, to speak on political subjects, to travel freely, and "to keep and carry arms wherever they went." Id. at 417. Taney, the classic racist, found that prospect inconceivable. It is noteworthy, though, that the Supreme Court considered the right to carry guns wherever they go an individual right of every citizen, along with voting, speaking, assembling. "Nor can Congress deny the people the right to keep and bear arms, nor the right to trial by jury, nor compel anyone to be a witness against himself..." Id. at 450. Obviously, "the people" refers to all citizens, not the states or militia, or the rest of the sentence becomes meaningless. See Verdugo-Urquidez, supra.

What the Second Amendment protects is an individual right to bear military weapons, not for hunting, not for target shooting, not for repelling foreign invaders, but for the purpose of preventing oppression of the people by their own government. The historical, textual, structural, doctrinal, prudential, judicial, and legislative evidence is devastating. Any intelligent person who wishes to study the matter seriously should probably begin with S. Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637. Professor Levinson (University of Texas) is a devout liberal who set out to prove once and for all that the Second Amendment does not protect an individual right (etc., ad nauseam). To his great embarrassment (hence the title), he found overwhelming evidence to the contrary. He had the academic integrity to admit it, for which he deserves great admiration. He does not like gun ownership, any more than some people like flag-burning or organized religion, but he recognizes that the individual right exists, and is integral to our constitutional protections, whether one likes it or not.