http://www.i2i.org/SuptDocs/Crime/35.htm
[This is a DRAFT of an article that
will appear in a symposium issue of volume 18 of the St. Louis University Public Law
Review.]
By David B. Kopel[1]
Among legal scholars, it is conventional wisdom that the Supreme Court has said
almost nothing about the Second Amendment.[2] This article suggests that
the Court has not been so silent as the conventional wisdom suggests. While the meaning of
the Supreme Courts leading Second Amendment case, the 1939 United States v. Miller[3]
decision remains hotly disputed, the question 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 Fullers
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 Courts history, and
almost all of them assume or are consistent with the proposition that the Second Amendment
is 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.
But first, let us quickly summarize what modern legal scholarship says about the
Second Amendment, and why the Courts main Second Amendment decisionUnited States v. Millerdoes not by itself
settle the debate.
Dennis Henigan, lead attorney for
Handgun Control, Inc., argues that the Supreme Court has said so little about the Second
Amendment because the fact that the Second Amendment does not protect the right to
ordinary Americans to own a gun is perhaps the most well-settled point in American
law.[4]
Henigan argues that the Second Amendment was meant to restrict the Congressional powers
over the militia granted to Congress in Article I of the Constitutionalthough
Henigan does not specify what the restrictions are.[5] One of Henigans 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.[6]
Similarly, Carl Bogus argues that the
only purpose of the Second Amendment was to protect states rights to use their
militia to suppress slave insurrectionsalthough Bogus too is vague about exactly how
the Second Amendment allegedly restricted Congressional powers.[7] This article refers to the
States Rights theory of the Second Amendment as the Henigan/Bogus
theory, in honor of its two major scholarly proponents.[8]
In contrast to the States Rights
theory is what has become known as the Standard Model.[9] 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.[10]
This modern Standard Model is similar to the position embraced by every known legal
scholar in the nineteenth century who wrote about the Second Amendment: the Amendment
guarantees an individual right, but is subject to various reasonable restrictions.[11]
Both the Standard Model and the
States 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 content,
and was merely a clever trick that James Madison played on the Anti-Federalists.[12]
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.[13] 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.[14] The federal courts which
follow the academic Standard Model are in the minority, although the ranks of the minority
have grown in recent years.[15] 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.[16]
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.[17] Freed, Miller and Layton
promptly absconded, and thus only the governments side was heard when the case was
argued before the Supreme Court.[18]
Unfortunately, Miller was written by Justice James McReynolds,
arguably the worst Supreme Court Justice of the twentieth century.[19] 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.[20]
This paragraph can plausibly be read to support either the Standard Model or the States Rights theory. By the States 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).[21] The case cited by the Miller Court, Aymette v. State, is plainly in the Standard Model, since it interprets the Tennessee Constitutions right to arms to protect an individual right to own firearms, but only firearms suitable for militia use; in dicta, Aymette states that the Second Amendment has the same meaning.[22]
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 States Rights theory.
And what is one to make of the opinions penultimate paragraph, stating, In the margin some of the more important opinions and comments by writers are cited.[23] 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.[24] The footnote likewise cites treatises by Justice Joseph Story and Thomas Cooley explicating the Second Amendment as an individual right.[25] But the same Miller footnote also cites a Kansas Supreme Court decision which is directly contrary; that case holds that the right to arms in Kansas belongs only to the state government, and in dicta makes the same claim about the Second Amendment.[26]
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.[27]
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-one other cases--although most of these cases appear to have escaped
the attention of commentators on both sides of the issue. This article ends the bipartisan
scholarly neglect of the Supreme Courts writings on the Second Amendment.[28]
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.
[29] Nevertheless, all this 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 dicta
should treat the Amendment as an individual right. Moreover, the line between dicta and ratio
decendi is never firm,[30] and one days dicta
may become another days holding.[31]
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.[32]
Before commencing with case-by-case analysis, let me present a chart which summarizes the various cases. 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 States 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).[33] 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 Amendments 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 Volokhs 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.[34]
For example, Rhode Islands freedom of the press provision declared: The
liberty of the press being essential to the security of freedom in a state, any person may
publish sentiments on any subject, being responsible for the abuse of that liberty.[35]
This provision requires judges to protect every persons right to publish
sentiments on any subjecteven when the sentiments are not essential to
the security of a free state, or when they are detrimental to state 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.[36] This provision makes all
pensions of longer than one year at a time voideven 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.[37]
Of the twenty-eight U.S. Supreme Court
opinions 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.
Casename and year. |
Main issue in case |
Opinion by |
Type of opinion |
Supportive of individual right in 2d
Amendment? |
Main clause of 2d A,. quoted without
introductory clause? |
Page of this article |
Spencer v. Kemna. 1998 |
Article III case or controversy. |
Stevens |
Dissent from denial of cert. |
Yes, but could possibly be read as
referring to rights under state constitutions |
No quote. |
|
Muscarello v. U.S. 1998 |
Fed stat. Interp. |
Ginsburg |
Dissent |
Yes. |
Partial quote. |
|
Printz v. U.S. 1997 |
Federalism |
Thomas |
Concur |
Says that Miller did not decide the issue. Thomas appears to
support individual right. |
Full quote. |
|
Albright v. Oliver. 1994 |
14th A. And § 1983 |
Stevens |
Dissent |
Yes. |
Partial quote. |
|
Planned Parenthood v. Casey. 1992. |
14th A. |
OConnor |
Majority |
Yes. |
Partial quote. |
|
U.S. v. Verdugo-Urquidez. 1990. |
4th
A. applied to foreign national. |
Rehnquist |
Majority |
Yes. |
Partial quote. |
|
Lewis v. U.S. 1980. |
Statutory interp. Of Gun Control Act of
1968 |
Blackmun |
Majority |
Ambiguous, but probably not. If an
individual right, less fundamental than some others. |
Full quote. |
|
Moore v. East Cleveland. 1976. |
14th A. |
Powell |
Plurality |
Yes. (But contrary opinion expressed by
Justice Powell after retirement.) |
Partial quote. |
|
|
|
White |
Dissent. |
Yes. |
Partial quote. |
|
Adams v. Williams. 1972 |
4th A. |
Douglas |
Dissent |
No. |
Full quote. |
|
Roe v. Wade. 1973 |
14th A. |
Stewart |
Concur |
Yes. |
Partial quote. |
|
Laird v. Tatum. 1972. |
Justiciability |
Douglas |
Dissent |
Ambiguous. |
Partial quote. |
|
Burton v. Sills. 1969. |
Challenge to state gun licensing law |
Per curiam |
Summary affirm. |
Ambiguous. |
No quote. |
|
Duncan v. Louisiana. 1968. |
Incorporation of 6th
amendment. |
Black |
Concur |
Yes. |
Partial quote. |
|
Malloy v. Hogan. 1964. |
Incorporation of 5th Amend. |
Brennan |
Majority |
Yes. |
No quote. |
|
Konigsberg v. State Bar. 1961. |
1st Amendment |
Harlan |
Majority |
Yes. |
Partial quote. |
|
Poe v. Ullman. 1961. |
14th Amendment |
Harlan |
Dissent |
Yes |
Partial quote. |
|
|
|
Douglas |
Dissent |
Yes, but implicitly abandoned in Adams. |
No quote. |
|
Johnson v. Eisentrager. 1950 |
5th A. applied to trial of
enemy soldier. |
Jackson |
Majority |
Yes |
Partial quote. |
|
Knapp v. Schweitzer. 1958. |
Incorp. of 5th A. |
Frankfurter |
Majority |
Yes |
Partial quote. |
|
Adamson v. Calif. 1947. |
Incorp. of 5th A. |
Black |
Dissent |
Yes |
Partial quote. |
|
Hamilton v. Regents. 1935. |
Conscientious objector. |
Butler |
Majority |
No, but not necessarily inconsistent
with an individual right. |
No quote. |
|
U.S. v. Schwimmer. 1929. |
Immigration laws |
Butler |
Majority |
Ambiguous |
Full quote. |
|
Stearns v. Wood. 1915. |
Article III case or controversy. |
McReynolds |
Majority |
Ambiguous, since court refuses to hear
any of plaintiffs claims |
No quote. |
|
Twining v. N.J. 1908. |
Incorp. Of 5th A
self-incrim. |
Moody |
Majority |
Yes |
Partial quote |
|
Trono v. U.S. 1905 |
5th A. in the Philippines |
Peckham |
Majority |
Yes |
Partial quote. |
|
Kepner v. U.S. 1904. |
|
Day |
Majority |
Yes. Same as Trono. |
Partial quote. |
|
Maxwell v. Dow. 1899. |
Incorp.of 5th A. Jury trial |
Peckham |
Majority |
Yes |
Partial quote. |
|