By Jennifer Greenough
"A well regulated militia, being necessary for the maintenance of a free state, the right of the people to keep and bear arms shall not be infringed."1 These words define the Second Amendment. Since its inception, controversy has surrounded the meaning and interpretation of this text. People on opposing sides of the issue have defined the words in contrary manners. One group believes the Second Amendment guarantees an individual the right to keep and bear arms, while another believes the amendment guarantees a collective right to bear arms. Additionally, this controversy surrounds the question of whether the Second Amendment guarantees an individual the right to keep and bear arms, and what relationship, if any, does that right to the regulation of a militia?
Several scholars have asserted the Second Amendment guarantees an individual the right to keep and bear arms. They argue it is an individual, as well as a collective right. The wording of the Second Amendment as it came out of the Select Committee of the House of Representatives in 1789 was "a well-regulated militia composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms."2 The right to keep and bear arms is necessary for the sovereignty of the citizenry. It is necessary to prevent tyranny of the government.
Prior to 1934, there were virtually no laws regulating guns.3 The passage of the National Firearms Act of 19344 led to controversy in U.S. v. Miller,5 the sole case in which the Supreme Court has handed down a decision regarding the breadth of the Second Amendment. Many believe lower court decisions have misinterpreted Miller to justify holding a collective-rights interpretation of the Second Amendment.
The Second Amendment guarantees an individual the right to bear arms. It is not solely a collective right, nor is it the right of the states. The debate over whether the Second Amendment guarantees an individual or collective right to bear arms is centered on the meaning of the words "people" and "militia" in the amendment. There is substantial historical, textual, and doctrinal evidence supporting the interpretations that those words are used in reference to individuals.
In Dred Scott v. Sanford 6 the Supreme Court held that African-Americans were not citizens of the United States and were not entitled to the privileges of citizenship. Chief Justice Taney states if African-Americans were to be granted citizenship, they too would have such rights including "the right to keep and carry arms wherever they went."7 If, at this time in history, the Court did not recognize that the Second Amendment guaranteed an individual right to bear arms, the concern about African-Americans would not have existed.
The collective-rights interpretation of the Second Amendment falters when examining the Bill of Rights and the usage and interpretation of the word "people."8 The First,9 Fourth,10 Ninth,11 and Tenth12 Amendments use the word "people" to guarantee rights to individuals. A plethora of cases, particularly with respect to the First and Fourth Amendments, provide doctrinal support for this.
The definition of "militia" is found in Presser v. Illinois..13 In Presser, a dispute arose around an Illinois law that prohibited any group of men from associating together in a military organization other than a government organized militia or federal troops of the United States.14 The law explicitly outlawed assembly with arms in any city or town in Illinois.15 Presser alleged that the Illinois law was a violation of the Second Amendment and the Immunities Clause in the Fourteenth Amendment.16 The Court concluded the Second Amendment was only a limitation upon the federal government and thus the Illinois law did not violate the Second Amendment.17 However, it is critical to understand what follows directly after the Court's assertion the law is not a violation of the Second Amendment. Justice Woods wrote:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying on the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.18
Despite having concluded the Second Amendment limits only the federal government, it stressed the States cannot prohibit citizens from keeping and bearing arms.19 Determining that Presser did not show a constitutional provision or federal statute guaranteeing a right to parade together in a private military organization, it was not protected by the Fourteenth Amendment.20 The Court did not determine whether the right to keep and bear arms was protected under the Fourteenth Amendment, but whether or not the right to parade together in a private military organization was protected by the amendment.
The definition of "militia" in Presser holds today, more than a century later. Justice Woods referred to the militia as "all citizens capable of bearing arms."21 The historical context of the word "militia" also supports the theory that the militia was comprised of all capable citizens.
During the previous decade, the Supreme Court has proffered indirect support for the individual rights view of the Second Amendment in three cases. In the most recent, Printz v. United States,22 the Court held that requirements imposed on chief law enforcement officers of the states by a provision of the Brady Handgun Violence Act 23 are unconstitutional. In his concurrence, Justice Thomas wrote:
The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from "prohibiting the free exercise" of religion or "abridging the freedom of speech." The Second Amendment similarly appears to contain an express limitation on the government's authority. [Sic] This Court has not had on recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections.24
In United States v. Verdugo-Urquidez 25 the Supreme Court relied on Turner v. Williams 26 to deny protection under the Fourth Amendment to a Mexican citizen and U.S. resident. The Drug Enforcement Agency searched and seized documents from the suspect's home without a search warrant.27 The Supreme Court overturned the District Court's opinion, which had been affirmed by the Court of Appeals to suppress the evidence due to the absence of a warrant and the inability of the DEA agents to justify their search without a warrant. The rational behind the decision was the defendant was not a U.S. citizen and was thus not guaranteed rights under the U.S. Constitution.
The third case is Planned Parenthood v. Casey.28 In the majority opinion, Justice O'Connor discusses rights that are guaranteed to individuals. Justice O' Connor quoted Justice Harlan, who had dissented from dismissal on jurisdictional issues in Poe v. Ullman:29
The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints,… and which also recognizes, what a reasonable and sensitive judgement must, that certain interests require particularly careful scrutiny of the state needs asserted to justify abridgment.
Justice O'Connor, and the Justices who joined the opinion, demonstrated their belief in these principles, including the right to bear arms. Given this and other development, one must ask whether it is finally time for the Court to review issues surrounding the Second Amendment?
In U.S. Term Limits, Inc. v. Thornton 30 the Court declared unconstitutional an amendment to the Arkansas State Constitution that imposed restrictions on citizens preventing them from having their names placed on the ballot for re-election to an office after they had served a certain number of terms. In Powell v. McCormack 31 the Supreme Court had held that Congress did not have the power to "add or alter the qualifications of its Members."32 The "fundamental principle of our representative democracy" is "that the sovereignty is vested in the People" and "the right to choose freely" the representatives of the citizens "to the National Government."33 In Thornton, the Court had to decide whether the state possessed the power to "add or alter the qualifications of its Members."34
The majority in Thornton based its decision on the recognition that the people are the ultimate sovereign, and that Federal and state governments cannot interfere with certain fundamental rights of the sovereign35 Justice Kennedy, in his concurring opinion, stated "[t]he whole people of the United States asserted their political identity… when they created the federal system."36 The ability of the sovereign to enforce their will through force, is an essential requirement of sovereignty. John Locke wrote that in addition to the right of making laws, the nucleus of sovereignty included the right "of employing forces of the community in the execution of such laws."37
The Supreme Court has ruled on the scope of the Second Amendment only once in the last century.38 In U.S. v. Miller Jack Miller,39 a U.S. Citizen, was charged with two violations of the National Firearms Act of 1934: moving a sawed-off shotgun in interstate commerce and not registering a firearm. The lower court dismissed the charges on the holding that the act violated the Second Amendment. The Supreme Court reversed the lower court decision, stating:
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.
By the time the case went before the Supreme Court, Miller had disappeared.40 He was unable to present arguments in his defense.
By taking a section of the Miller opinion instead of considering the decision in its entirety, district courts have arguably misinterpreted the decision in Miller. Brennan Denning explains:
The most common approach to disposing of Second Amendment claims in the lower courts has been to apply what the courts have decided is the Miller "test." Of course, the courts are not in agreement as to what the Miller test is. Reading the cases, one gets the feeling that the lower courts simply invent new obstacles as soon as the old ones are surmounted by sharp litigants with carefully crafted claims.41
There are three primary interpretations of Miller.42 The first interpretation infers the Second Amendment guarantees protection to bear arms only when there is a substantial relationship between the weapon and the organization of a militia.43 When it became clear that any weapon could be found to have a relationship with the organization of the militia, the focus of the courts shifted to the intent of the possessor.44 When citizens have succeeded in overcoming the first two tests, the courts employ the collective-right interpretation of the Second Amendment.45
One of the first lower Federal Court decisions on the Second Amendment after Miller came in Cases v. United States.46 The defendant was convicted of violating the Federal Firearms Act that outlawed convicted felons from possessing firearms. The defendant argued the Federal Firearms Act47 infringed upon his right to carry firearms and was therefore unconstitutional under the Second Amendment.48 The Court held that the Federal Firearms Act was a constitutional curtailment of the rights of an individual to keep and bear arms.49 In support for its decision, the Court cited Miller.50 The Court in Cases held that the Second Amendment is a collective right, not an individual right. The Court failed to recognize the Supreme Court in Miller held that it was the gun, not the citizen, which must have a relationship to military use.51 Federal courts have subsequently used Cases to find that the Second Amendment guarantees a collective and not an individual right to keep and bear arms.52 Yet, this de facto moratorium on Second Amendment jurisprudence leaves the validity of this conclusion in question.
Viewed as the defender of our liberties guaranteed in the Constitution, the Supreme Court's refusal to settle the controversy between individual and collective-rights interpretations of the Second Amendment is elusive. Since existing laws regulating arms are based upon the collective rights supposition one must ask what would happen if the rights guaranteed in the Second Amendment were interpreted to hold an individual right to bear arms? Could this lead to the holding that current laws regulating guns are unconstitutional?53 Additionally, how far could this individual interpretation be extended? For example, could an individual seek Second Amendment protection for transportation or possession of a nuclear warhead? Levinson states:
I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning" interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.54
Now it is unlikely that individual-rights interpretation would deem all gun regulations unconstitutional. Constitutional protections are often far from absolute. For example, there have been restrictions placed upon speech under the First Amendment.55
The NRA and other gun rights activists do not disagree with laws prohibiting criminals or the mentally incompetent from owning guns. The concern that such a decision would render all gun laws unconstitutional is potentially unfounded. The "clear and present danger" test applied to the First Amendment by Schenck could be applied to the Second Amendment as well. One could argue in the totality of the circumstances that greater security risks would be posed to the people by allowing persons to possess nuclear weapons than otherwise.
Pro-gun control arguments are often shrouded in emotion. Supporters of gun control cite examples of heinous crimes as justification for their ideology. The justices of the Supreme Court recognize that a ruling on either side of the Second Amendment issue would be unpopular and therefore many argue that the moratorium will continue indefinitely.
Protection from tyranny is the root cause behind the implementation of the Second Amendment. The founders believed key to a democratic system where the sovereignty rests with the people, as it does with our system of government, is the right to keep and bear arms. The Supreme Court's deference on this issue jeopardizes the sovereignty of the citizenry. The rights guaranteed by the Second Amendment allow for the maintenance of all other enumerated freedoms. As one doctrine is compromised it becomes easier for all to fall from favor.
Footnotes
1. United States Constitution, Amendment II
2. Joseph Gates, 1 Annals of Congress 749, ed., 1789.
3. Robert J. Cottrol, "Introduction to Gun Control and the Constitution: Sources and Explanations of the Second Amendment," xxvi-xxvii ed., 1994
4. 26 U.S.C. § 1132 (1934) Current Version at 26 U.S.C. § § 5801-5872 (1995)
5. 307 U.S. 174 (1939)
6. 92 U.S. 542 (1875)
7. Id. at 417
8. Sanford Levinson, "The Embarrassing SEcond Amendment," 99 Yale Law Journal, 687 (1989).
9. U.S. Constitution, Amendment I.
10. U.S. Constitution, Amendment IV.
11. U.S. Constitution, Amendment IX.
12. U.S. Constitution, Amendment X
13. 116 U.S. 252 (1886)
14. Id. at 253.
15. Id. at 252-53.
16. Id. at 257.
17. Id. at 264-65 Citing U.S. v. Cruickshank, 92 U.S. 542, 553 (1875).
18. Id. at 265
19. Id.
20. Id. at 265-66
21. Id.
22. 521 U.S. 898 (1987)
23. 18 U.S.C. § 922
24. Presser v. Illinois, 116 U.S. 252 (1886).
25. 494 U.S. 259 (1990)
26. 194 U.S. 279 (1904)
27. Id.
28. 505 U.S. 833 (1992)
29. 367 U.S. 487, 453 (1961)
30. 514 U.S. 779 (1995)
31. 395 U.S. 486 (1969)
32. Id. at 806
33. Id.
34. Presser, 116 U.S. 252 (1886)
35. U.S. Term Limits, Inc. 519 U.S. 779 (1995)
36. Id. at 838
37. John Locke, Two Treatises of Civil Government Bk. 2, Chap. 1,3 (W.S. Carpenter ed., 1924)
38. Brannon P. Denning, "Can the Simple Cite be Trusted?" Lower Court Interpretations of United States v. Miller and the Second Amendment," 26 Cumberland Law Review 962, 1995.
39. 307 U.S. 174 (1939)
40. Id.
41. See Supra note 38 and accompanying text.
42. Id.
43. Id.
44. Id.
45. Id.
46. 131 F.2d 916 (1st Cir. 1942)
47. 15 U.S.C. § 901 (1938) (repealed 1968).
48. Cases v. U.S., 131 F.2nd 916 (1st Cir. 1942)
49. Id. at 921
50. Id. at 922
51. See Supra Note 38
52. See United States v. Hale, 978 F.2d 1016 (8th Cir. 1992); Fresno Rifel & Pistol Club, Inc. v. Van De Kamp, 965 F. 2d 723 (9th Cir. 1992); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982); United States v. Oakes, 564 F.2d 384 (1oth Cir. 1977)
53. 18 U.S.C. § 922; 26 U.S.C. § § 5801-5872
54. See Supra Note 9 and accompanying text
55. Schenck v. United States, 249 U.S. 47, 52 (1919) Justice Holmes states "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic." This is the now infamous "Clear and Present Danger" doctrine.