The Supreme Court’s Thirty-five Other Gun Cases:

What the Supreme Court Has Said about

the Second Amendment

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 Court’s 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 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 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 Court’s main Second Amendment decision—United States v. Miller—does 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 Constitution—although Henigan does not specify what the restrictions are.[5] 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.”[6]

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.[7] This article refers to the State’s Rights theory of the Second Amendment as the “Henigan/Bogus theory,” in honor of its two major scholarly proponents.[8]

In contrast to the State’s 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 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 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 government’s 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 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).[21] The case cited by the Miller Court, Aymette v. State, 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 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 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.”[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 Court’s 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 day’s dicta may become another day’s 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 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”).[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 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.[34] For example, Rhode Island’s 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 person’s right to “publish sentiments on any subject”—even 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 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.[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.