The Supreme Court and it's 35 Other Gun Cases

[align=center]THE SUPREME COURT'S THIRTY-FIVE [/align]




[align=center]OTHER GUN CASES:[/align]




[align=center]WHAT THE SUPREME COURT HAS SAID [/align]




[align=center]ABOUT THE SECOND AMENDMENT[/align]





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David B. Kopel [FNa1]

Saint Louis University Public Law Review[/align]




[align=center]1999[/align]




[align=center]Symposium, Gun Control[/align]




[align=justify]DAVID B. KOPEL[/align]






[align=justify] Among legal scholars, it is undisputed that the Supreme Court has said almost nothing about the Second Amendment. [FN1] This article suggests that the Court has not been so silent as the conventional wisdom suggests. While the meaning of the Supreme Court's leading Second Amendment case, the 1939 United States v. Miller [FN2] decision remains hotly disputed, the dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments.
Chief Justice Melville Fuller's Supreme Court (1888-1910) had the most cases involving the Second Amendment: eight. So far, the Rehnquist Court is in second place, with six. But Supreme Court opinions dealing with the Second Amendment come from almost every period in the Court's history, and almost all of them assume or are consistent with the proposition that the Second Amendment in an individual right.
Part I of this Article discusses the opinions from the Rehnquist Court. Part II looks at the Burger Court, and Part III at the Warren, Vinson, and Hughes Courts. Part IV groups together the cases from the Taft, Fuller, and Waite Courts, while Part V consolidates the Chase, Taney, and Marshall Courts.
[FN3] Henigan argues that the Second Amendment was meant to restrict the Congressional powers over the militia granted to Congress in Article I of the Constitution--although Henigan does not specify what the restrictions are. [FN4] One of Henigan's staff criticizes the large number of American history textbooks which "contradict[] a nearly unanimous line of judicial decisions by suggesting the meaning of the Second Amendment was judicially unsettled." [FN5]
Similarly, Carl Bogus argues that the only purpose of the Second Amendment was to protect state's rights to use their militia to suppress slave insurrections--although Bogus too is vague about exactly how the Second Amendment allegedly restricted Congressional powers. [FN6] This article refers to the [FN7]
In contrast to the State's Rights theory is what has become known as the Standard Model. [FN8] Under the Standard Model, which is the consensus of most modern legal scholarship on the Second Amendment, the Amendment guarantees a right of individual Americans to own and carry guns. [FN9] This modern [FN10]
Both the Standard Model and the State's Right theory claim that Supreme Court precedent, particularly the case of United States v. Miller, supports their position.
Two other scholarly theories about the Second Amendment are interesting, but their theories have little to do with Supreme Court precedent. Garry Wills argues that the Second Amendment has "no real meaning," and was merely a clever trick that James Madison played on the Anti-Federalists. [FN11] David Williams argues that the Second Amendment once guaranteed an individual right, but no longer does so because the American people are no longer virtuous and united, and hence are no longer "the people" referred to in the Second Amendment. [FN12] Neither the Wills Nihilism theory nor the Williams Character Decline theory make claims which depend on the Supreme Court for support, or which could be refuted by Supreme Court decisions.
Like the scholars, the lower federal courts are split on the issue, although their split is the opposite of the scholarly one: most federal courts which have stated a firm position have said that the Second Amendment is not an individual right. [FN13] The federal courts which follow the academic Standard Model [FN14] The courts on both sides, like the scholars, insist that they are following the Supreme Court.
One approach to untangling the conflict has been to see if the lower federal courts have actually been following Miller. In Can the Simple Cite be Trusted?, Brannon Denning makes a persuasive argument that some lower courts have cited Miller for propositions which cannot reasonably be said to flow from Miller. [FN15] But part of the problem with deciding whether the courts or the scholars are being faithful to Miller is that Miller is such an opaque opinion.
Miller grew out of a 1938 prosecution of two bootleggers (Jack Miller and Frank Layton) for violating the National Firearms Act by possessing a sawed-off shotgun without having paid the required federal tax. The federal district court dismissed the indictment on the grounds that the National Firearms Act violated the Second Amendment. [FN16] Freed, Miller and Layton promptly absconded, [FN17]
Unfortunately, Miller was written by Justice James McReynolds, arguably one of the worst Supreme Court Justices of the twentieth century. [FN18] The opinion nowhere explicitly says that the Second Amendment does (or does not guarantee) an individual right. The key paragraph of the opinion is this:[/align]

[align=justify]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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158. [FN19][/align]​

[align=justify]This paragraph can plausibly be read to support either the Standard Model or the State's Rights theory. By the State's Right theory, the possession of a gun by any individual has no constitutional protection; the Second Amendment only applies to persons actively on duty in official state militias.
In contrast, the Standard Model reads the case as adopting the "civilized warfare" test of nineteenth century state Supreme Court cases: individuals have a right to own arms, but only the type of arms that are useful for militia service; for example, ownership of rifles is protected, but not ownership of Bowie knives (since Bowie knives were allegedly useful only for fights and brawls). [FN20] The case cited by the Miller Court, Aymette v. State [FN21], is plainly in the Standard Model, since it interprets the Tennessee Constitution's right to arms to protect an individual right to own firearms, but only firearms suitable for militia [FN22]
While scholars can contend for different meanings, it is true that, as a matter of pure linguistics, the Miller decision does not foreclose either the Standard Model or the State's Rights theory.
And what is one to make of the opinion's penultimate paragraph, stating, "In the margin some of the more important opinions and comments by writers are cited." [FN23] In the attached footnote, the opinion cites two prior U.S. Supreme Court opinions and six state court opinions, all of which treat the Second Amendment or its state analogue as an individual right, even as the opinions uphold particular gun controls. [FN24] The footnote likewise cites treatises by Justice Joseph Story and Thomas Cooley explicating the Second Amendment as an individual right. [FN25] But the same Miller footnote also cites a Kansas Supreme Court [FN26]
The Miller footnote begins with the phrase "Concerning the militia --" but several of the cases cited have nothing to do with the militia. For example, Robertson v. Baldwin (discussed infra) simply offers dicta that laws which forbid the carrying of concealed weapons by individuals do not violate the Second Amendment. [FN27]
If Miller were the only source of information about the Second Amendment, the individual right vs. government right argument might be impossible to resolve conclusively. Fortunately, the Supreme Court has addressed the Second Amendment in thirty-four other cases--although most of these cases appear to have escaped the attention of commentators on both sides of [FN28]
The neglected cases are not, of course, directly about the Second Amendment. Rather, they are about other issues, and the Second Amendment appears as part of an argument intended to make a point about something else. [FN29] Nevertheless, all the dicta may be revealing. If Henigan and Bogus are correct, then the dicta should treat the Second Amendment as a right which belongs to state governments, not to American citizens. And if the Standard Model is correct, then the Amendment should be treated as an individual right. Moreover, the line between dicta and ratio decendi is rarely firm, [FN30] and one day's dicta may become another day's holding. [FN31]
C.S. Lewis observed that proofs (or disproofs) of Christianity found in apologetic documents are sometimes less convincing than offhand remarks made in anthropology textbooks, or in other sources where Christianity is only treated incidentally. The Supreme Court cases in which the Supreme Court mentions the Second Amendment only in passing are similarly illuminating. [FN32]
Click here for the Chart.] The columns in chart are self-explanatory, but I will explain two of them anyway. A "yes" answer in the "Supportive of individual right in 2d Amendment?" column means only that the particular case provides support for the individual rights theory; although the part of the case addressing the Second Amendment might make sense only if the Second Amendment is considered an individual right, the case will not directly state that proposition. If the case is labeled "ambiguous," then the language of the case is consistent with both the Standard Model and with State's Rights.
The next column asks, "Main clause of 2d A. quoted without introductory clause?" The National Rifle Association and similar groups are frequently criticized for quoting the main clause of the Second Amendment ("the right of the people to keep and bear Arms, shall not be infringed") without quoting the introductory clause ("A well-regulated Militia, being necessary to the security of a free State"). [FN33] The critics argue that the introductory, militia, clause controls the meaning of the main, right to arms, clause. They contend that to omit the introductory clause is to distort completely the Second Amendment's meaning. (And if, as these critics argue, the Second Amendment grants a right to state governments rather than to individuals, then omission of the introductory clause is indeed quite misleading.) On the other hand, if the Second Amendment is about a right of people (the main clause), and the introductory clause is useful only to resolve gray areas (such as what kind of arms people can own), then it is legitimate sometimes to quote the main clause only. As the chart shows, the Supreme Court has quoted the main clause alone much more often than the Supreme Court has quoted both clauses together.
This Supreme Court quoting pattern is consistent with the theory Eugene Volokh's article, The Commonplace Second Amendment, which argues that the Second Amendment follows a common pattern of constitutional drafting from the Early Republic: there is a "purpose clause," followed by a main clause. [FN34] [FN35] This provision requires judges to protect every person's right to "publish sentiments on any subject"--even when the sentiments are not "essential to the security of freedom in a state," or when they are detrimental to freedom or security.
Similarly, the New Hampshire Constitution declared: "Economy being a most essential virtue in all states, especially in a young one; no pension shall be granted, but in consideration of actual services, and such pensions ought to be granted with great caution, by the legislature, and never for more than one year at a time." [FN36] This provision makes all pensions of longer than one year at a time void--even if the state is no longer "a young one" and no longer in need of economy. Volokh supplies dozens of similar examples from state constitutions. [FN37]
Of the twenty-nine U.S. Supreme Court opinions (including Miller) which have quoted the Second Amendment, twenty-three contain only a partial quote. This quoting pattern suggests that, generally speaking, Supreme Court justices have not considered the "purpose clause" at the beginning of the Second Amendment to be essential to the meaning of the main clause.


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[align=justify]Edited due to my great typing abilitys'[/align]

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[align=justify]Conclusion[/align]


[align=justify] In addition to the oft-debated case of United States v. Miller, ][FN358] the Supreme Court has mentioned or quoted the Second Amendment in thirty-seven opinions in thirty-five other cases, almost always in dicta. One of the opinions, Justice Douglas's dissent in Adams v. Williams, explicitly claims that the Second Amendment is not an individual right. ][FN359] Three majority opinions of the Court (the 1980 Lewis case, ][FN360] the 1934 Hamilton case, ][FN361] and the 1929 Schwimmer case ][FN362]), plus one appeal dismissal (Burton v. Sills, 1969 ][FN363]), and one dissent (Douglas in Laird ][FN364]) are consistent with either the individual rights or the states rights theory, although Lewis is better read as not supportive of an individual right, or not supportive of an individual right worthy of any serious protection. (And knowing of Justice Douglas's later dissent in Adams, his Laird dissent should not be construed as supportive of an individual right.) Spencer v. Kemna refers to right to bear arms as an individual right, but the opinion does not specifically mention the Second Amendment, and so the reference could, perhaps, be to the right established by state constitutions. ][FN365]
Two other cases are complicated by off-the-bench statements of the Justices. The 1976 Moore v. East Cleveland plurality opinion supports the individual right, ][FN366] but in 1989 the opinion's author, retired Justice Powell, told a television interviewer that there was no right to own a firearm. In an 1820 dissent, Justice Story pointed to the Second Amendment to make a point about state authority over the militia (although this would not necessarily be to the exclusion of an individual right). ][FN367] Justice Story's later scholarly ][FN368]
Concurring in Printz, Justice Thomas stated that United States v. Miller had not resolved the individual rights question; the tone of the concurrence suggested that Justice Thomas considered the Second Amendment to be an important individual right. ][FN369]
Twenty-eight opinions remain, including nineteen majority opinions. Each of these opinions treats the Second Amendment a right of individual American citizens. Of these twenty-eight opinions, five come from the present Rehnquist Court, and on the Rehnquist Court there has been no disagreement that the Second Amendment is an individual right.
Of course that fact that a right exists does not mean that every proposed gun control would violate that right; indeed, many of the opinions explicitly or implicitly endorse various controls, and, except for Justice Black, none of the authors of the opinions claim that the right is absolute. ][FN370]
In the face of this Supreme Court record, is it accurate for gun control advocates to claim that the non-individual nature of the Second Amendment is "perhaps the most well-settled" point in all of American constitutional law? ][FN371] The extravagant claim cannot survive a reading of what the Supreme Court has actually said about the Second Amendment. In the written opinions of the Justices of the United States Supreme Court, the Second Amendment does appear to be reasonably well-settled--as an individual right. The argument that a particular Supreme Court opinion's language about the Second Amendment does not reflect what the author "really" thought about the Second Amendment cannot be used to ignore all these written opinions--unless we presume that Supreme Court Justices throughout the Republic's history have written things about the Second Amendment that they did not mean.
While the Warren Court and the Burger Court offered mixed records on the Second Amendment, the opinions from the Rehnquist Court (including from the Court's "liberals" Ginsburg and Stevens) are just as clear as were the opinions from the Supreme Court Justices of the nineteenth century: "the right of the people to keep and bear arms" is a right that belongs to individual American citizens. Although the boundaries of the Second Amendment have only partially been addressed by Supreme Court jurisprudence, the core of the *187 Second Amendment is clear: the Second Amendment--like the First, Third, Fourth, Fifth, Sixth, and Fourteenth Amendments--belongs to "the people", not the government.[/align]

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Unfortunately, Miller was written by Justice James McReynolds, arguably one of the worst Supreme Court Justices of the twentieth century. [FN18] The opinion nowhere explicitly says that the Second Amendment does (or does not guarantee) an individual right. The key paragraph of the opinion is this:

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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158. [FN19]

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