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The Second Amendment Wiped Away Again
For nearly seventy years after the U.S. Supreme Court decision in Miller v. The United States the Second Amendment’s right to keep and bear arms became a dead letter in the law. All of the present gun-control laws were passed and litigated over with seldom a mention of the Second Amendment.
The Supreme Court decision in District of Columbia v. Heller handed down last Tuesday seemed to change everything. The Second Amendment had been found to be a right belonging to every American. But it took only a single day in Virginia to have the Second Amendment again become largely a dead letter according to the lower federal courts.
Senior Norfolk Judge Henry Coke Morgan held in a local federal case the day after Heller was decided that the individual right created by the Second Amendment does not impose any obligations whatsoever on state or local governments: only the federal government. The decision came in the controversial case of Chet Szymecki v. City of Norfolk where the citizen was detained, handcuffed and roughed up by Norfolk The count made under the Second Amendment for injunctive relief and for compensation was dismissed. The other constitutional claims made by Szymecki, for an unreasonable seizure and for the use of excessive force by police, survived dismissal, at least for now.
Judge Morgan’s opinion cites for support but one Fourth Circuit Court of Appeals decision. Edwards v. City of Goldsboro (1999). That case treats the Second Amendment in a single, short paragraph with conclusions only: no analysis. That City of Goldsboro case also cites to but one earlier Fourth Circuit decision. That earlier case provided the same short treatment of the Second Amendment. Love v. Pepersack (1995). That decision cited two U.S. Supreme Court case from 1876 and 1886 that held, like all post Civil War era decisions did, that the Bill of Rights was not made incumbent on state governments by the passage of the 14th Amendment. That constitutional jurisprudence changed entirely during the Twentieth Century making the Bill of Rights incumbent on the States. Judge Morgan finds the Second Amendment to be such a poor stepchild among the Bill of Rights that it can safely be ignored by government in 90% of instances.1
Many leftist commentators on Heller make the same argument also without providing a logical reason to exempt States and cities from one of the Bill of Rights, but not the others. This issue is the next big hurdle for the Second Amendment to overcome in its long passage to relevance again.
This publication hopes Mr. Szymecki’s case becomes the next U.S. Supreme Court decision concerning the scope of the Second Amendment. Then Americans will finally have a right of self-defense that applies to all levels of government interference.
1 This is all of the Fourth Circuit writings there are on the Second Amendment in the past seventy years:
Edwards v. City of Goldsboro, 178 F.3d 231, 231 (4th Cir. 1999)
“The Second Amendment provides 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.” U.S. Const. amend. II. The district court properly dismissed Sergeant Edwards' claim that the Defendants violated the Second Amendment by denying him permission to teach the concealed handgun safety course while he was off-duty and by punishing him for doing so without permission, because the law is settled in our circuit that the Second Amendment does not apply to the States. See Love v. Pepersack, Sr., 47 F.3d 120, 123 (4th Cir. 1995) (holding that Second Amendment does not apply to the States, and therefore affirming dismissal of plaintiff's claim against State of Maryland and several Maryland state police officers, alleging that such parties violated her Second Amendment right to “keep and bear” a handgun by denying her a permit to carry a handgun).”
Love v. Pepersack, 47 F.3d 120, 120 (4th Cir. 1995)
“The Second Amendment does not apply to the states. Presser v. Illinois, 116 U.S.United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 [F.3d 124] (1876).5 Moreover, even as against federal regulation, the amendment does not confer an absolute individual right to bear any type of firearm. In 1939, the Supreme Court held that the federal statute prohibiting possession of a sawed-off shotgun was constitutional, because the defendant had not shown that his possession of such a gun bore a “reasonable relationship to the preservation or efficiency of a well regulated militia.” United States v. Miller, 307 U.S. 174, 178, 59 S. Ct. 816, 818, 83 L. Ed. 1206 (1939). Since then, the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right. This court's precedent is United States v. Johnson, 497 F.2d 548 (4th Cir. 1974). In Johnson, the defendant challenged the constitutionality of the federal statute prohibiting possession of firearms by convicted felons. We were not impressed (id. at 550): 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886);
Johnson's argument that [18 U.S.C. §] 922(g) is an unconstitutional violation of his Second Amendment right to keep and bear arms is not new. See, e.g., United StatesU.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939). The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a “reasonable relationship to the preservation or efficiency of a well-regulated militia.” 307 U.S. at 178, 59 S. Ct. at 818. Johnson presents no evidence that section 922(g) in any way affects the maintenance of a well regulated militia.’
Obviously, these judges were quite wrong about the import of the Second Amendment.
