Lawsonline™ Legal Topics - Judicial Interpretation of the Second Amendment
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Second Amendment Judicial Interpretations - Supreme Court Cases
The Supreme Court cases often cited by those focused on the interpretation of the Second Amendment are listed below. Not all of these cases directly address the Second Amendment or every aspect discussed by gun rights and gun control advocates. The cases are charted to provide an overall review and summary of popular questions noted in the key below. The final column lists which interpretation the case favors. As with the amendment itself, even these court opinions are read to support multiple points of view. Expanding the case information by clicking on the red tab provides quotes from the case and explains how these cases are applied towards interpretations of the Second Amendment.
KEY — The cases below are charted with short answers for the following questions:
2nd Amendment Limits: Does the Second Amendment limit federal regulation, state regulation or both?
Incorporated by 14th Amendment: Does the court incorporate the Second Amendment under the Fourteenth Amendment?
Militia Clause: What weight does the court place on the militia clause of the Second Amendment? Is the clause amplifying or qualifying the right?
Arms Covered: Does the court limit the types of arms protected under the Second Amendment?
Reasonable Regulation: Can the right to keep and bear arms be regulated?
Self-Defense: Does the court recognize the right of self-defense as protected by the Second Amendment?
Individual, Collective, or Civic: Does the court's ruling favor one or more of these popular interpretations of the Second Amendment? (See the introductory article in this series for more details.)
Clicking on the 'Opinion Summary & Details' tab for each case expands the table and shows a summary, quotes, and other information relevant to the answers listed in the chart. This section also includes a link to the full court opinion online.
| Case and Summary | 2nd Amendment Limits | Incorporated by 14th Amendment | Militia Clause | Arms Covered | Reasonable Regulation |
Self-Defense | Individual, Collective, or Civic |
| U.S. v. Cruikshank, 92 U.S. 542 (1876) | Federal | No | N/A | N/A | Yes | No | Individual and Collective |
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Summary: In April 1873 the black militia was called to hold the Colfax courthouse in Grant parish, Louisiana by the Republican sheriff during an election dispute. White members of the White League (a private militia of the Ku Klux Klan) attacked the courthouse and set it on fire. They shot any who tried to escape and killed 100-280 blacks in what became known as the Colfax massacre.[50] The lower court initially convicted the three defendants. Although the Supreme Court acknowledged that racism was likely involved, the Court found that the case did not explicitly state this in the indictment (p. 556). Additionally, the Court affirmed that the entirety of the case was too vague for a criminal proceeding and ruled to release the defendants (p. 559). Both the Second and Fourteenth Amendments were brought up in the case but the Court dismissed both of these claims ruling the Second Amendment was not infringed by the national government and the Fourteenth was not infringed by state government which the Court recognized as the limits of these protections. Second Amendment Limits: The Second Amendment “has no other effect than to restrict the powers of the national government” (p. 553). When discussing the First Amendment right to assembly, the Court also stated that the Bill of Rights, “was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone” (p. 552). Incorporated by Fourteenth Amendment: Again, the Court declared that the Second Amendment limits the national government only (pp. 552-553). Militia Clause: The militia clause of the Second Amendment was not addressed even though the Colfax massacre was a clash between two "militias": the local Republican sheriff’s black militia and the KKK’s private militia which was called up by the Democratic sheriff. However, more than just the armed militias were involved in the conflict and most of those who were massacred were unarmed. Arms Covered: N/A Reasonable Regulation: The Second Amendment restricts the national government only. It is expected that “bearing arms for a lawful purpose” is regulated by “municipal legislation” or “internal police” which is not “restrained” by the Constitution (p. 553). Self-Defense: The right of “bearing arms for lawful purpose” is not granted by the Constitution or, “dependent upon that instrument for its existence” (p. 553). The Court did agree that the life and liberty of person is a “natural right” and, “The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these ‘unalienable rights with which they are endowed by their Creator’” (p. 553). Therefore, it is recognized that citizens have the natural right to self-preservation but they should look to their state government to ensure this remains protected. Individual, Collective, or Civic: This case has been read by both gun rights and gun control groups as supporting their interpretation of the Second Amendment. The first reads the case as maintaining the protection of individual rights from the federal government’s infringement. Alternatively, the collective argument states the ruling only limits the federal government from infringing on the state’s rights and individual rights, when mentioned in the ruling, are specifically protected by the state government. Read Full Opinion Online |
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| Presser v. Illinois, 116 U.S. 252 (1886) | Federal | No | Qualifying | N/A | Yes | N/A | Individual and Civic |
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Summary: In December 1879, Herman Presser lead the private militia troop Lehr und Wehr Verein through Chicago’s streets. According to the press, the group was made up of “German and Bohemian Socialists, whose object was to train and drill in military fashion and get ready for the great conflict between capital and labor.”[51] This action was in direct defiance of the Military Code of Illinois enacted in May of 1879 that required organizations to obtain the governor’s approval before drilling or parading in public. The Supreme Court upheld the conviction against Presser who paid a $10 fine for violating state law. The Court maintained that the Second Amendment only restricted the federal government and further emphasized the importance of the states’ and national government’s control and regulation of militias. Second Amendment Limits: The Court argued that the Second Amendment “is a limitation only upon the power of Congress and the National government, and not upon that of the States” (p. 265). Incorporated by Fourteenth Amendment: The Second Amendment limits Congress and the national government only. Additionally, the Court denied that individuals can form private militias as part of the “privileges and immunities” under the Fourteenth Amendment. Militias are regulated and controlled by state and federal governments and are not a right of the individual citizen (p. 267). Militia Clause: The Court emphasized the right to arms in its direct relationship with the people, “performing their duty to the general government” (p. 265). Additionally, the Court cited U.S. v. Cruikshank, Id. agreeing that the right to arms “is not granted by the Constitution,” and the right is not, “in any manner dependent upon that instrument for its existence” (p. 265). Arms Covered: N/A Reasonable Regulation: Citing U.S. v. Cruikshank, Id., the Court again stated that the Second Amendment only limits Congress and municipal legislation is not restrained by the Constitution (p. 265). Additionally, the Court maintained that militia associations fall specifically under the purview of both state and federal governments (p. 267). Forming private militias is not a citizen’s right and the State retains the power to enact laws to protect, “the public peace, safety and good order” (p. 268). Self-Defense: The use of arms outside of the militia was not addressed. Individual, Collective, or Civic: Those reading an individual interpretation readily admit this case does not support private militias. However, the statement by the Court that the state cannot, “prohibit the people from keep and bearing arms,” implies access to arms is protected and the states cannot disarm the people (p. 265). The civic reading focuses on the added weight of duty to the government that is stressed in the complete quote: “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the Unites 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 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” (p. 265). Read Full Opinion Online |
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| Miller v. Texas, 153 U.S. 535 (1894) | Federal | No | N/A | N/A | Yes | N/A | Collective |
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Summary: Franklin Miller was suspected of having a relationship and a child with his black domestic servant Mattie Anderson. These accusations led to an arrest for adultery that encouraged Miller’s opinion that he was being harassed by the police. Later, when two officers came to serve an affidavit for Miller’s "carry of weapons," there was a shoot-out and one of the officers was killed.[52] Miller appealed his conviction for murder claiming that both the Texas state law against concealed weapons and his arrest without a warrant violated his rights under the Constitution. The Court ruled that neither the Second nor Fourth Amendments were denied and noted that these amendments only restrict federal power (p. 538). Miller’s claim under the Fourteenth Amendment was also denied on a technicality but left the Court with the opportunity to note that a concealed weapon law did not violate the "privileges and immunities" of citizens (p. 539). Second Amendment Limits: The Court accepted the established opinion that the Second Amendment only restricts the federal government (p. 538). Incorporated by Fourteenth Amendment: The Second Amendment limits only the federal government. Militia Clause: N/A Arms Covered: N/A Reasonable Regulation: The Court stated that the question of the Fourteenth Amendment cannot be decided since it was not raised in the trial court. Nonetheless, the Court ruled in favor of regulation by stating that the Texas concealed weapon law challenged by Miller did not "abridge the privileges or immunities of citizens of the United States" under the Fourteenth Amendment (p. 539). Self-Defense: N/A Individual, Collective, or Civic: This case is usually cited by those supporting the collective interpretation since the Court did not counter with the state law against concealed weapons and maintained that the Second Amendment only restricts the federal government. Read Full Opinion Online |
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| Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 826 (1897) | N/A | N/A | ?? Inexplicit |
N/A | Yes | N/A | Individual, Collective, and Civic |
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Summary: Sailors who abandoned their post invoked the Thirteenth Amendment as part of their defense stating that they were resisting "involuntary servitude." In its discussion of the Bill of Rights, the Court declared that, "The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (art. 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputations; the right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…." (pp. 281-282). Second Amendment Limits: N/A Incorporated by Fourteenth Amendment: N/A Militia Clause: The role of militia is argued indirectly by its absence in the Court’s opinion. Those who argue for an individual reading of the Second Amendment highlight that the Court did not mention the militia and lists the right to arms between examples of the individual rights protected under the First and Fifth Amendments. Those who favor a collective reading do not believe the paraphrasing here changes the interpretation of "the people" in the Second Amendment from the collective force of the people as a militia. Arms Covered: N/A Reasonable Regulation: The Court argued in favor of some regulation of rights and specifically noted the regulation of concealed weapons (common by this time) is constitutional. Self-Defense: N/A Individual, Collective, or Civic: All three! This opinion has been used to support the individual reading of the Second Amendment since the militia is not mentioned in relation to the right of the people to keep and bear arms. Those who read the amendment collectively still read "the people" as the militia. The civic reading is also viable here as it allows that the right to arms can be regulated as part of the contract between citizens and government. Read Full Opinion Online |
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| Patsone v. Pennsylvania, 232 U.S. 138 (1914) | N/A | N/A | N/A | Yes (implied) |
Yes | Maybe | Individual |
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Summary: An unnaturalized Italian citizen, Patsone, was convicted of owning a shot-gun against Pennsylvania state law that prohibited foreign born residents from hunting and owning long guns. The Court decided the state law did not violate the Fourteenth Amendment since it still allowed Patsone to own pistols for self-defense. Second Amendment Limits: N/A Incorporated by Fourteenth Amendment: N/A Militia Clause: N/A Arms Covered: The Court did not discuss the Second Amendment directly but did follow the precedent common in the state courts at this time — some arms may be prohibited as long as access to other types of arms is allowed. Reasonable Regulation: The Court ruled that, "a State may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out" (p. 144). The state of Pennsylvania was justified in its regulation of the hunting rights of non-citizens if it had a local history that deemed the legislation necessary. Self-Defense: The Court agreed that rifles and shot-guns could be prohibited since, "The prohibition does not extend to weapons such as pistols that may be supposed to be needed occasionally for self-defence" (p. 143-144). The Court clearly recognized the right to use some firearms for protection; however, this right is not specifically tied to the Second Amendment in the opinion. Individual, Collective, or Civic: Those who read the Second Amendment as an individual right often point to the right to self-defense as one of the protections included within the right to bear arms. In the discussion of the Fourteenth Amendment, the Court recognized the right to self-defense, specifically with pistols, as a constitutional right. Read Full Opinion Online |
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| U.S. v. Miller, 307 U.S. 174 (1939) | Federal | N/A | Qualifying | Yes | Yes | N/A | Collective and Civic |
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Summary: Jack Miller and Frank Layton were found guilty of illegally transporting a double barrel sawed-off shotgun between Oklahoma and Arkansas in violation of the National Firearms Act of 1934. The appeal to the district court argued that the federal Firearms Act usurped the police authority of states and violated citizens’ rights under the Second Amendment – the district court agreed with the latter and the case was appealed to the Supreme Court. The Court overturned the district court’s opinion and detailed the history of militia service and laws related to the regulation of arms used by militiamen. According to the Supreme Court, the Second Amendment protected the states' interest in the militia and allowed for reasonable regulation of arms. Second Amendment Limits: The Court cited that the Constitution protected the power of congress to call forth the militia while maintaining the right of the states to ensure the, “effectiveness of such forces” (p. 178). Incorporated by Fourteenth Amendment: N/A Militia Clause: The Court focused on the role of the militia in the common defense and, “The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators” (p. 179). Arms Covered: The Court determined the possession of a sawed-off shotgun was not standard military issue and since the weapon did not have, “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” (p. 178). Arms protected are limited to those relevant for militia duty. Reasonable Regulation: The states and federal government can regulate the ownership and trade of certain arms. Furthermore, arms must be related to militia use to be protected by the Second Amendment. Self-Defense: N/A Individual, Collective, or Civic: This case predominantly supports the collective and civic reading of the Second Amendment to ensure the right to arms as related to service in the militia. However, the Court cited several colonial and state ordinances detailing the types of arms to be maintained by militia members that more aptly supports the civic interpretation. The broad sweep of these laws included "all able-bodied men" and expected them to supply their own weapons which highlight the civic responsibility attached to the ownership of arms rather than an institution focused on only the states' prerogative. Read Full Opinion Online |
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| Maryland ex rel. Levin v. U.S., 381 U.S. 41 (1965) | N/A | N/A | ?? Inexplicit |
N/A | N/A | N/A | Collective |
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Summary: This case does not address the Second Amendment but does rule on the status of the National Guard. After a mid-air collision between an airliner and jet trainer, the descendents filed suit under the Federal Tort Claims Act since Captain McCoy was a member of the National Guard. The Court ruled that Captain McCoy was not a federal employee as he was a civilian employed by the state to serve in the National Guard. The Court clarified that the National Guard replaced the state militias and although the Guard was supplied and funded by the federal government, the citizen appointments and employment remained within the power of the state. Second Amendment Limits: N/A Incorporated by Fourteenth Amendment: N/A Militia Clause: While this opinion does not rule on the relationship between the militia and the Second Amendment, some use this case to argue that the state militias were effectively adsorbed and replaced by the National Guard. The Court noted, "From the days of the Minutemen of Lexington and Concord until just before World War I, the various militias embodied the concept of a citizen army, but lacked the equipment and training necessary for their use as an integral part of the reserve force of the United States Armed Forces. The passage of the National Defense Act of 1916 materially altered the status of the militias by constituting them as the National Guard" (pp. 46-47). Arms Covered: N/A Reasonable Regulation: N/A Self-Defense: N/A Individual, Collective, or Civic: This case is cited by some who argue the entire question of state militias and the Second Amendment is obsolete since the National Defense Act of 1916 made the National Guard, "the modern Militia reserved to the States" (p. 46). For some who support the collective interpretation this case supports the idea that the right to arms, whatever the intended meaning under the Second Amendment, ceases to exist outside the National Guard. Read Full Opinion Online |
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| Lewis v. U.S., 445 U.S. 55, 100 S.Ct. 915 (1980) | N/A | N/A | Qualifying | Yes | Yes | N/A | Collective |
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Summary: George Calvin Lewis, Jr. appealed his conviction under the Omnibus Crime Control and Safe Streets Act of 1968 for possessing a firearm with a felony record. The Court found the legislation had "rational basis" and cites U.S. v. Miller, Id. to support reasonable firearm regulation (p.65 and n.8). Second Amendment Limits: N/A Incorporated by Fourteenth Amendment: N/A Militia Clause: In the footnotes the Court used U.S. v. Miller, Id. to clarify, "the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’" (n.8). Arms Covered: Again, the footnote citing U.S. v. Miller, Id. maintains that only militia arms are protected by the Second Amendment. Reasonable Regulation: The Court found that Congress responded to a legitimate threat and concern over national and public safety, "in response to the precipitous rise in political assassinations, riots, and other violent crimes involving firearms, that occurred in this country in the 1960’s" (p.63). There was a rational basis behind the laws made by Congress to prevent felons from possessing firearms and posing, "a threat to community peace" (pp.65-66). Self-Defense: N/A Individual, Collective, or Civic: This case is utilized by those in favor of a collective interpretation because the citation of U.S. v. Miller, Id. reiterates that the right to keep and bear arms is dictated by the preservation of the militia under the Second Amendment. Read Full Opinion Online |
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| Perpich v. Department of Defense, 496 U.S. 334 (1990) |
N/A | N/A | ?? Inexplicit |
N/A | N/A | N/A | Collective and Civic |
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Summary: In 1985, several state governors challenged the federal deployment of the National Guard troops outside the United States in time of peace. The training in Central America was viewed by many to be unneeded "saber-rattling" toward Nicaragua.[53] In response, the Montgomery Amendment of 1986 allowed the federal government to deploy the National Guard without the governor’s approval. Governor Rudy Perpich of Minnesota filed suit against this new law but the Supreme Court affirmed that the Montgomery Amendment was constitutionally valid. This decision focused on the militia clauses in the Constitution and later legislation rather than the Second Amendment. The Court provided a summary history of the militia and the formation of the National Guard. By 1916 the National Guard became federalized and troops took oaths to both the federal government and their state. When the federal government calls upon them they are "fully federal," otherwise their service belongs to their respective states (p.343). This ruling established that federal authority over the National Guard is plenary over the states. Second Amendment Limits: N/A Incorporated by Fourteenth Amendment: N/A Militia Clause: The Court ruled the National Guard obeys both the state and federal government but must give preference to the federal government when called. However, within this ruling the Court also noted that when the National Guard was created as the “organized militia,” the “reserve/ unorganized militia” remained and states still had the right to train this militia at their own expense (pp. 342 and 352). The ruling does not address how this may or may not influence the Second Amendment. Arms Covered: N/A Reasonable Regulation: N/A Self-Defense: N/A Individual, Collective, or Civic: Those in support of a civic interpretation note that this opinion maintains the existence of the unorganized militia - the National Guard does not replace state militias. The very idea of an "organized" or select militia is contrary to the republican ideals behind the civic interpretation of the Second Amendment. Those who argue the collective interpretation point to the long history of inaction by states to organize their militias (detailed by the Court in this opinion pp. 340-346). Without federal assistance, it is unlikely independent state militias will be maintained while the National Guard remains as an effectual replacement. Read Full Opinion Online |
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| Staples v. U.S., 511 U.S. 600 (1994) |
N/A | N/A | N/A | Yes (implied) | Yes (implied) | N/A | Individual and Collective |
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Summary: Harold E. Staples possessed a semi-automatic AR-15 that had been altered to behave like the M-16 machine gun. Staples denied any knowledge of the modifications which would have required the gun to be registered under the National Firearms Act. The Supreme Court reversed his conviction and argued the Act only intended to prosecute those with knowledge of breaking the law or mens rea. The Second Amendment was not discussed. However, the legality of regulation of certain weapons through National Firearms Act was preserved while the Court also acknowledged the "long tradition of widespread lawful gun ownership by private individuals in this country" (p. 610). Second Amendment Limits: N/A Incorporated by Fourteenth Amendment: N/A Militia Clause: N/A Arms Covered: The Court did not mention the Second Amendment but it did not question the regulation of certain defined weapons under the National Firearms Act. Reasonable Regulation: Again, although the Court did not mention the Second Amendment, it continued its acceptance of reasonable regulation. The Court did not question the legality of the National Firearms Act but instead focused on interpreting its limitations. Self-Defense: N/A Individual, Collective, or Civic: Many individual rights proponents praise this ruling for noting that "gun ownership by private individuals" has a long history (p. 610). Additionally, the recognition that, "despite their potential for harm, guns generally can be owned in perfect innocence" supports arguments to criminalize the deviant behavior of a person rather than gun ownership itself (p. 611). Those in favor of the collective argument point out that the Court did not mention the Second Amendment and instead referred to state regulations protecting gun rights rather than the U.S. Constitution (e.g. n.9). Read Full Opinion Online |
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| Printz v. U.S., 521 U.S. 898 (1997) |
N/A | N/A | N/A | N/A | Yes (implied) | N/A | Individual |
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Summary: Jay Printz and Richard Mack, both chief law enforcement officers, filed suit against the Brady Act of 1993. They argued that the expectation that chief law enforcement officers were required to perform background checks for the federal government was unconstitutional. The Court agreed that state officials could voluntarily or contractually aid the federal government but the federal government cannot, "command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program" (p. 935). Second Amendment Limits: N/A Incorporated by Fourteenth Amendment: N/A Militia Clause: N/A Arms Covered: N/A Reasonable Regulation: The Court did not address the regulatory power of the Brady Act but instead focused on the legality of requiring state officers to administer its policies. Self-Defense: N/A Individual, Collective, or Civic: The Second Amendment was not discussed in the Court’s opinion, however, in a concurring opinion, Justice Thomas did discuss the Second Amendment and question whether the federal government was infringing a personal right (p. 938). Many argue this statement foreshadowed the Court’s interest in revisiting the Second Amendment which happened in District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783 (2008). Read Full Opinion Online |
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| District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008) | Federal | ?? Inexplicit |
Amplifying | Yes | Yes | Yes | Individual |
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Summary: Dick Heller, a special police officer applied for a license to keep a handgun in his home under the D.C. Code. He was refused and filed a lawsuit arguing that the handgun ban and requirement that all guns are to be "unloaded and dissembled" in the home violated his Second Amendment right to self-defense. This is the first time the Supreme Court clearly interpreted the Second Amendment as a personal right. The Court argued that the amendment protects the individual right to keep and bear arms for self-defense and considered self-defense, "the central component of the right itself" (p. 2801). The deciding and dissenting opinions reflect the heated nature of the Second Amendment debate and provide extensive summary of the prevalent arguments. (It is worth the read!) Second Amendment Limits: The Court used U.S. v Cruikshank, Id. that clearly stated only the federal government is limited by the Second Amendment (pp. 2812-2813). The Court also noted that, "For most of our history, the Bill of Rights was not thought applicable to the states" (p. 2816). However, the short discussion of the Fourteenth Amendment (p. 2811) suggests the Court may have favored reading the Second Amendment as incorporated if the case had been issued through a state. Incorporated by Fourteenth Amendment: The Court did not specifically rule on the incorporation of the Second Amendment but in its review of Post-Civil War Legislation the Court noted that the Second Amendment was included in the congressional debate (p. 2811). Militia Clause: The Court stated, "apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause" (p. 2789). After a review of both prefatory and operative clauses, the Court stated, "It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting" (p. 2801). Arms Covered: The Court cited U.S. v Miller, Id. that arms were restricted to those, "in common use at the time" and recognized an, "historical tradition of prohibiting the carrying of 'dangerous and unusual weapons'" (p. 2817). Reasonable Regulation: The Court maintained that regulation is allowed, even of an individual right, "Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose" (p. 2799). The Court upheld previous limits to gun ownership and wrote: "[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" (pp. 2816-2817). Additionally, the Court allowed the District's licensing of handguns and stated it, "is permissible so long as it is 'not enforced in an arbitrary and capricious manner'" (p. 2819). Self-Defense: The Court recognized that, "self-defense has been central to the Second Amendment right" and also noted the prevalence of handguns over long guns for such purpose as, "the American people have considered the handgun to be the quintessential self-defense weapon" (pp. 2817-2818). Individual, Collective, or Civic: The Court's opinion interprets the Second Amendment as protecting an individual right which includes the right to self-defense. The dissenting opinion provides a look at the collective right interpretation (p. 2822 ff.) and the second dissenting opinion by Justice Breyer (p. 2847 ff.) shows the difference in interpretation of the amount of regulation allowed under the Second Amendment as well. The civic interpretation appears in aspects of this opinion but the Court noted, "It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large," (p. 2817). This statement is just one example from this opinion that highlights the reality that the civic duty to arm oneself for public service is not the focus in modern society. Read Full Opinion Online |
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| McDonald v. Chicago, 130 S.Ct. 3020 (2010) |
Federal and State |
Yes | Amplifying | Yes | Yes | Yes | Individual |
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Summary: Otis McDonald and other petitioners filed suit against Chicago and Oak Park Municipal Codes and contended the required registration of firearms effectively banned handguns and violated the Second and Fourteenth Amendments. The Court agreed that, "we hold that the Second Amendment right is fully applicable to the States." The Court also detailed the incorporation of the Second Amendment by the Fourteenth Amendment in the opinion (p. 3026). As in D.C. v. Heller, Id., the dissenting opinions highlighted the different interpretations of the Second Amendment and its incorporation (p. 3088 ff). Second Amendment Limits: The Court determined that the Second Amendment protects a fundamental right and, "a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States" (p. 3050). Incorporated by Fourteenth Amendment: The Court noted that earlier cases that did not include the Second Amendment under the Fourteenth Amendment were decided before, "the Court began the process of 'selective incorporation' under the Due Process Clause" which left the question of incorporation of the Second Amendment unaddressed (p. 3031). In it's evaluation, the Court determined, "the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller" (p. 3050). Militia Clause: Again the Court cited D.C. v. Heller, Id. and denied the Municipal respondents' argument that the Second Amendment is qualified by the militia clause (pp. 3047-3048). Arms Covered: The Court did not discuss the prohibition of dangerous or unusual weapons as it did in D.C. v. Heller, Id. but reiterated, "the right to possess a handgun in the home for the purpose of self-defense" (p. 3050). Combined with the continued recognition of reasonable regulation (see below) the Court upheld the idea that some regulation of firearms is possible; however, the handgun cannot be prohibited. Reasonable Regulation: The Court recognized the municipal respondents' concern that needs of communities change by location and both state and local authorities retain the right to enact reasonable regulation. The Bill of Rights, "limits (but by no means eliminates) their [the states'] ability to devise solutions to social problems that suit local needs and values" (p. 3046). The Court additionally cited D.C. v. Heller, Id. maintained reasonable regulation and "longstanding regulatory measures" (p. 3047). Self-Defense: The Court reiterated their stance in D.C. v. Heller, Id. that self-defense is a central component of the Second Amendment (p. 3036). Individual, Collective, or Civic: The Court determined that the Second Amendment protects an individual right to possess a handgun for self-defense in D.C. v. Heller, Id.. The Court built upon the individual right in this case. The incorporation of the Second Amendment under the Due Process Clause of the Fourteenth Amendment guarantees protection of this individual right from infringement by both federal and state governments. Read Full Opinion Online |
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Second Amendment Judicial Interpretations - State Supreme Courts and Federal Circuit Courts
Some of the State Supreme Court and Federal Circuit Court cases often cited by those focused on interpreting the Second Amendment are listed below. This is only a sample as the Second Amendment was discussed more often by state courts than the Supreme Court. Additionally, many state cases focused on their state constitutions and did not always address the national Bill of Rights. However, the interpretations of "right to arms" provisions inform the wider discussion of the place of arms in American society. The cases are charted to provide an overall review and summary of popular questions using the same key as the chart above. The final column lists which interpretation the case favors. As with the amendment itself, even these court opinions can be read to support multiple points of view. Expanding the case information by clicking on the red tab provides quotes from the case and explains how these cases are applied towards interpretations of the Second Amendment or "right to arms" provisions.
| Case and Summary | 2nd Amendment Limits | Incorporated by 14th Amendment | Militia Clause | Arms Covered | Reasonable Regulation |
Self-Defense | Individual, Collective, or Civic |
| Bliss v. Commonwealth, 2 Littell 90 Ky., 13 Am. Dec. 251 (1822) | N/A | N/A | N/A | No (State) |
No (State) |
Yes (State) |
Individual |
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Summary: The Kentucky State Supreme Court ruled the state law that outlawed concealed carry of a, "pocket-pistol, dirk, large knife, or sword in a cane" violated the state constitution which read, "that the right of the citizens to bear arms in defense of themselves and the state shall not be questioned" (p. 251). Although the Court did not address the Second Amendment in the federal constitution, this is one of the earliest State Supreme Court cases to rule on the regulation of arms. Second Amendment Limits: N/A Incorporated by Fourteenth Amendment: N/A Militia Clause: N/A Arms Covered: The Court did not agree to any specific weapons being singled out. Any regulation that limited the right to bear arms was against the state constitution: "But it should not be forgotten that it is not only a part of the right that is secured by the constitution; it is the right entire and complete as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution" (p. 253). Reasonable Regulation: The Court noted that the state constitution specifically protected enumerated rights, "and that all laws contrary thereto, or contrary to the constitution, shall be void" (pp. 251-252). Even laws against "concealed carry" infringed on the right protected by the state constitution since, "whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution" (p. 252). The only limit on the right is, "the moral power of the citizens to exercise it" (p. 252). Self-Defense: This purpose was not the focus of the Court but the Court cited Kentucky's Constitution which specifically protects the right to arms for citizens, "in defense of themselves and the state" (p. 251). Individual, Collective, or Civic: This Court opinion is often cited by those who support the individual interpretation for protecting the right to arms without any regulation. Although the argument is focused on Kentucky's constitutional right to bear arms, some argue that enumerated rights should not be paired down and this principle should be applied to the national constitution as well. Read Full Opinion Online |
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| Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840) | N/A | N/A | Maybe (State) |
Yes (State) |
Yes (State) |
No (State) |
Collective and Civic |
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Summary: In June 1839, William Aymette made threats against Mr. Hamilton while brandishing a bowie knife he had kept concealed under this vest. Aymette was charged for the concealed carry of a bowie knife which violated Tennessee state law. He appealed his conviction and argued the legislation banning the concealed carry of a bowie knife was unconstitutional. This case invoked Tennessee’s Declaration of Rights, "that the free white men of this State have a right to keep and bear arms for their common defence" (p. 156). However, the Court did address the U.S. Constitution as influential on Tennessee's Constitution and tracked the history of the right to arms since the reign of King Charles II in England. Second Amendment Limits: N/A Incorporated by Fourteenth Amendment: N/A Militia Clause: The Court is directly ruling on the Tennessee Constitution. However, in its discussion of the history of the right to bear arms, the Court clarified that the words "bear arms" were used for "military use, and were not employed to mean wearing them about the person as part of the dress" (p. 158). The Court favored that the right was collective and only worked when used collectively. Arms Covered: The Court interpreted the right to bear arms to cover military weapons useful to citizens protecting their common rights. They did not need, "those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin" (p. 158). Therefore, non-military weapons were not protected by the constitution. Reasonable Regulation: The Court ruled that the legislature has the right to regulate and prohibit non-military weapons "dangerous to the peace and safety of the citizens" (p. 159). Indeed, "the right to bear arms is not of that unqualified character" and, "as the manner in which they are worn and circumstances under which they are carried indicate to every man the purpose of the wearer, the Legislature may prohibit such manner of wearing as would never be resorted to by persons engaged in the common defence" (p. 160). Self-Defense: The Court's interpretation held that during the English Glorious Revolution, "No private defence was contemplated, or would have availed anything" but "they may as a body rise up to defend their just rights, and compel their rulers to respect the laws" (p. 157). The Court determined that although the right had changed in Tennessee to include all free white men, it remained a collective right for the common or public defense (p. 158). Individual, Collective, or Civic: The opinion reads "collective" in the language that stresses the right to arms is for the common defense and not the individual. The Court even discussed the Bliss v. Commonwealth, Id. ruling and disagreed in its' interpretation of the right to arms despite the difference in wording between the two constitutions (see case summary above). The Court argued the right to arms was historically a collective right and interpreted Kentucky's Constitution to mean the same (pp. 160-1). The case also supports the civic interpretation since although the state may regulate arms, the protection is a political right that ensures citizens, "are prepared in the best possible manner to repel any encroachments upon their rights by those in authority" (p. 158). Read Full Opinion Online |
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| State v. Buzzard, 4 Ark. (2 Pike) 18 (1842) | Federal and State |
N/A | Qualifying | Yes | Yes | No | Collective and Civic |
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Summary: Buzzard argued that the Arkansas state law against the concealed carry of, "any pistol, dirk, butcher or large knife, or a sword in a cane" unless traveling violated the Second Amendment of the U.S. Constitution. The Court reasoned that no right is absolute in civilized society and government has the duty to balance private rights with "well regulated liberty" (p. 21). The Court ruled that both the federal and state constitutional amendments protecting the right to bear arms was collective and allowed for the regulation by the state legislature (p. 27). Second Amendment Limits: The Court ruled that the regulation of arms was allowed as long as it did not, "impair or render inefficient the means provided by the constitution for the defence of the State" (p. 27). The Court considered the U.S. Constitution as consequential to state law. The Court ruled that the law was valid and, "in no wise repugnant either to the constitution of the United State or the constitution of this State" (p. 28). Incorporated by Fourteenth Amendment: N/A Militia Clause: The Court noted, "that the militia, without arms, however well disposed, might be unable to resist, successfully, the efforts of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties; and therefore, to guard most effectually against such consequences, and enable the militia to discharge this most important trust, so reposed in them, and for this purpose only, it is conceived the right to keep and bear arms was retained" (pp. 24-25). Arms Covered: The Court upheld the fact that the legislature could identify arms to be regulated (p. 27-28). In contrast to other state courts, the Arkansas Supreme Court did not limit "arms" to militia weapons but noted arms, "in its most comprehensive signification, probably includes every description of weapon or thing which may be used offensively or defensively" (p. 21). The type of arms available did not impact the regulation of arms as the legislature could regulate arms as long as it did not infringe on the collective defense of the state. Reasonable Regulation: The Court argued that the "unrestrained exercise" of rights, "would surely defeat every object for which the government was formed. And if the right to keep and bear arms be subject to no legal control or regulation whatever, it might, and in time to come doubtless will, be so exercised as to produce in the community disorder and anarchy" (p. 21). Self-Defense: The Court stressed repeatedly the importance of citizens relying on the law for private redress (p. 26). Individual, Collective, or Civic: This opinion stressed the political right to arms that supported regulation as long as the people were able to defend the state. The Court did address the possible inconsistency between state constitutions and the federal constitution in protecting individual rights which would have to be resolved by the Supreme Court (p. 28). However, the concurring opinion by Justice Dickinson argued that the individual possession and carry of arms falls under the police power of the states (p. 33). The dissenting opinion by Justice Lacy outlines an individual interpretation of the right to arms and argues for stronger punishments for crimes that abused the right rather than stricter regulations on the right itself (p. 40-41). Read Full Opinion Online |
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| Nunn v. State, 1 Ga. (1 Kel.) 243 (1846) | Federal and State |
N/A | Amplifying | No | Yes | Maybe | Individual and Civic |
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Summary: Hawkins Nunn appealed his conviction under a Georgia State law enacted in 1837 which outlawed the sale or possession of, "Bowie or any other kinds of knives, manufactured and sold for the purpose of wearing or carrying the same as arms of offence or defence; pistols, dirks, sword-canes, spears, &c., shall also be contemplated in this act, save such pistols as are known and used as horseman's pistols." But the law protected those, "who shall openly wear, externally, bowie-knives, dirks, tooth-picks, spears, and which shall be exposed plainly to view" (p. 246). Nunn argued the law violated the right to bear arms in both the federal and state constitutions. The Court noted that the law was poorly written and appeared to allow the "open carry" of regulated weapons but failed to list pistols in this section of the statute which effectively banned the possession of pistols entirely. The Court ruled that laws against concealed carry were constitutional as long as they did not completely prohibit the possession of arms. Second Amendment Limits: The Court stated that, "The language of the second amendment is broad enough to embrace both Federal and State governments--nor is there anything in its terms which restricts its meaning" (p. 250). Furthermore, the Court stated that some rights "were never intended to be thus restricted, but were designed for the benefit of every citizen of the Union in all courts and in all places; and the people of the several States, in ratifying them in their respective State conventions, have virtually adopted them" (p. 250). Incorporated by Fourteenth Amendment: N/A Militia Clause: The Court argued that an armed populace is necessary to form the militia, therefore: "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State" (p. 251). Arms Covered: As seen in the passage above, the people have the right, "to keep and bear arms of every description, not such merely as are used by the militia" (p. 251). Reasonable Regulation: The Court ruled that legislation against concealed weapons is constitutional, "inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms" (p. 251). Self-Defense: The Court ruled the entire population had the right to arms for the purpose under the Constitution, "that the free enjoyment of it will prepare and qualify a well-regulated militia, which are necessary to the security of a free State" (p. 250). The "free enjoyment" of the right likely includes self-defense which the Court recognized as a "natural right" (p.251). Individual, Collective, or Civic: The individual interpretation notes the Court stressed the right to arms practiced by "the whole people" and this right cannot be diminished by federal or state laws. Those who favor the civic interpretation note the ultimate purpose behind arming citizens is to create a militia force in defense of the state. Read Full Opinion Online |
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| English v. State, 35 Tex. 473, 14 Am. Rep. 374 (1872) | Federal and State |
N/A | Maybe | Yes | Yes | Maybe | Individual and Collective |
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Summary: A series of concealed weapon charges against English, Carter, and Daniel were tried together. They challenged that the law violated their rights under the Second Amendment of the U.S. Constitution. The Court denied that the weapons cited were related to militia use and therefore could be regulated. Additionally, the Court noted that citizens should look to the law to resolve grievances and their liberties could be regulated by government as part of the social compact of society. Second Amendment Limits: The Court cited Joel Prentiss Bishop’s commentary on Criminal Law that states, "though most of the amendments are restrictions on the general government alone, not on the states, this one [the Second Amendment] seems to be of a nature to bind both the state and national legislatures, and doubtless it does" (p. 475). Incorporated by Fourteenth Amendment: N/A Militia Clause: The Court reasoned that arms protected under the Second Amendment are only those appropriate for militia use. However, the Court specifically noted that the law in question made exceptions to allow for self-defense with other "deadly weapons" under specific circumstance and "(t)here is no abridgement of the personal rights, such as may be regarded as inherent and inalienable to man, nor do we think his political rights are in the least infringed by any part of this law" (p. 477). This suggests that the Court interpreted the right to arms beyond militia use only. Arms Covered: The Court ruled that arms in the U.S. Constitution, "refers to the arms of a militiaman or soldier, and the word is used in its military sense" (p. 476). Other weapons, especially "deadly weapons" deemed a menace to society can be regulated (pp. 476-477). Reasonable Regulation: The Court declared that the legislature can regulate a right without taking it away and stated: "No kind of travesty, however subtle or ingenious, could so misconstrue this provision of the constitution of the United States, as to make it cover and protect that pernicious vice, from which so many murders, assassinations, and deadly assaults have sprung, and which it was doubtless the intention of the legislature to punish and prohibit" (p. 476). Additionally, the Court noted, "natural and personal liberty are exchanged, under the social compact of states, for civil liberty"(p. 477). Self-Defense: The Court recognized self-defense as an inherent personal right but separated this from a political right. Additionally, the Court stressed that citizens must look to the law and courts for redress in civilized society (p. 477). To the charge that the law, "deprived the people of the necessary means of self-defense," the Court responded that the state is allowed to adapt for, "the promotion and advancement of the happiness and well being of the people" — laws that regulated the peace until the state became more civilized was justified (p. 480). Individual, Collective, or Civic: Those who favor the individual interpretation cite this case for recognizing the right to arms as a personal right. Those who argue the collective interpretation point to the differentiation between inherent rights and political rights by the Court and argue the Second Amendment is still the latter and enjoyed collectively. Read Full Opinion Online |
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| U.S. v. Tot, 131 F.2d 261 (4th Cir. 1942) | Federal | N/A | Qualifying | Yes | Yes | No (implied) | Collective |
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Summary: Frank Tot was convicted under the Federal Firearms Act for his possession of a handgun. Tot had been previously convicted for a violent crime which made his possession of the firearm illegal. The defendant claimed the federal law violated the Second Amendment in his appeal. The Court interpreted the Second Amendment collectively and argued it protected the states' organized militias from federal encroachment only. Second Amendment Limits: The Court stated that the Second Amendment was meant to protect the states' militias from overreach by the federal government (p. 266). Incorporated by Fourteenth Amendment: N/A Militia Clause: The Court argued that the Second Amendment protects the preservation of state militias (p. 266). Arms Covered: The Court cited U.S. v. Miller, Id. and held that the Second Amendment only applies to weapons that have, "some reasonable relationship to the preservation or efficiency of a well regulated militia" (p. 266). Reasonable Regulation: The Court did not recognize the Second Amendment as protecting an individual right to arms and further noted that common law never treated "weapon bearing" as "an absolute right" (p. 266). The Court then pointed to the common law regulations against the carry of concealed weapons and the restriction of arms in "certain public places" as constitutional within the several states and concluded similar federal laws are likewise constitutional (p. 266). The Court concluded, "The social end sought to be achieved by this legislation [the Federal Firearms Act], the protection of society against violent men armed with dangerous weapons, all would concede to be fundamental in organized government" (p. 271). Self-Defense: The Court made it clear the right to arms protected in the Second Amendment applied to states and not individuals. The Court said, "this amendment [the Second Amendment], unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power" (p. 266). Although the Court did not address self-defense directly it made it clear that the individual's use of arms was regulated by common law and not the Second Amendment. Individual, Collective, or Civic: This opinion clearly supports the collective interpretation. The individual interpretation is not considered applicable by the Court and the civic interpretation was ignored when the Court focused on the states' right to maintain militias rather than the civic duty of citizens to be part of the militia. Read Full Opinion Online |
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| Cases v. U.S., 131 F.2d 916 (1st Cir. 1942) | Federal | N/A | Qualifying | Yes | Yes | No (implied) | Collective |
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Summary: Jose Cases Velazquez was charged under the Federal Firearms Act in Puerto Rico. His appeal included an argument that the federal law violated the Second Amendment. The Court interpreted the Second Amendment collectively as a state's right, not an individual one. However, the Court cited U.S. v. Miller, Id. and noted that military arms were not exempt from regulation, even if they could be used in support of a well-regulated militia. Second Amendment Limits: The Second Amendment is supposed to protect militias and, "prevent the federal government and the federal government only from infringing that right" (p. 922). Incorporated by Fourteenth Amendment: N/A Militia Clause: The Court noted that the appellant used the gun to shoot another person at Annadale's Beach Club and there was, "no evidence…that his use of the weapon under the circumstances disclosed was in preparation for a military career" (p. 923). Instead, the appellant was, "using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of a well regulated militia which the Second Amendment was designed to foster as necessary to the security of a free state" (p. 923). Arms Covered: The Court disagreed with the holding in U.S. v. Miller, Id. that militia weapons were protected but instead insisted that each case, "must be decided on its own facts" (p. 922). The possession of military weapons, "such as machine guns, trench mortars, anti-tank or anti-aircraft guns" could be regulated and, "it would be inconceivable that a private person could have any legitimate reason for having such a weapon" (p. 922). Reasonable Regulation: The Second Amendment does not limit the regulation of arms by the federal government as the Court did not find the Second Amendment limitation as absolute (p. 922). Additionally, the Court recognized the right of Congress to regulate persons who were convicted of violent crime as a, "particular class" legally through the Federal Firearms Act (p. 924). Self-Defense: The Court did not discuss self-defense directly but noted that the only protected use by the appellant under the Second Amendment was for militia service or militia practice (p. 923). Individual, Collective, or Civic: The Court interpreted the Second Amendment to mean that it protects well-regulated state militias from federal overreach. It additionally upheld the right of the federal government to prohibit the ownership of military arms by individuals which counters both the individual and civic interpretations of the amendment. Read Full Opinion Online |
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| U.S. v. Warin, 530 F.2d 103 (6th Cir. 1976) | Federal | N/A | Qualifying | Yes | Yes | No (implied) | Collective |
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Summary: Francis J. Warin was convicted under the National Firearms Act, amended by the Gun Control Act of 1968, for possessing an unregistered submachine gun. Among other points, the defendant claimed that his status as a member of the "sedentary militia" protected his right to arms under the Second Amendment as ruled in U.S. v. Miller, Id. (p. 105). The Court ruled that the Second Amendment did not apply to individuals and ruled that the amendment allows for the regulation of arms, including military arms. Second Amendment Limits: The Court maintained that the States' well-regulated militias are protected, not individuals (p. 106). Incorporated by Fourteenth Amendment: N/A Militia Clause: The Second Amendment protects a well-regulated militia, however, the Court also noted: "The fact that the defendant Warin, in common with all adult residents and citizens of Ohio, is subject to enrollment in the militia of the State confers upon him no right to possess the submachine gun in question" (p. 106). Only the "organized" militia enjoys any exception, not the unorganized or "sedentary" militia (p. 106). Arms Covered: The Court upheld federal regulation and argued that "There can be no question that an organized society which fails to regulate the importation, manufacture and transfer of the highly sophisticated lethal weapons in existence today does so at its peril" (p. 108). Reasonable Regulation: The Court maintained that the Second Amendment does not restrict regulation and Congress is allowed to make laws to uphold "public order." In the opinion, the Court stated: "The requirement that no one may possess a submachine gun which is not registered to him in the National Firearms Registration and Transfer Record is a reasonable regulation for the maintenance of public order" (p. 108). Self-Defense: The Court stated that the Second Amendment does not apply to individuals and cited U.S. v. Tot, Id. to reiterate that arms are not an absolute right even under common law (p. 107). This implies a continued interpretation that an individual’s use of arms are covered by common law and not the Constitution. Individual, Collective, or Civic: The Court stated, "It is clear that the Second Amendment guarantees a collective rather than an individual right" (p. 106). Additionally, the Court countered the civic interpretation when it recognized the right to bear and keep arms for the "organized" militia but not the "unorganized" militia. Read Full Opinion Online |
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| Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982) | Federal | No | Qualifying | Yes | Yes | No (implied) | Collective and Civic |
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Summary: Victor D. Quilici and seven other plaintiffs challenged the handgun ban within the Village of Morton Grove as a violation of the right to arms provision in the Illinois state constitution and the second, ninth, and fourteenth amendments of the U.S. Constitution. The Seventh Circuit Court of Appeals affirmed the district court's opinion that the handgun ban was constitutional. The Illinois Constitution states, "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed" (p. 265). The Court determined that since other weapons were allowed the handgun ban was an acceptable exercise of "police power" (p. 268). Second Amendment Limits: The Court cited Presser v. Illinois, Id. to argue that the Second Amendment does not apply to the states but only the federal government (p. 269). Incorporated by Fourteenth Amendment: The Court disagreed with the appellants' argument that the Fourteenth Amendment included the, "entire Bill of Rights," and noted the Supreme Court's selective incorporation did not include the Second Amendment (p. 270). Militia Clause: The Court stated that the, "right to bear arms is inextricably connected to the preservation of a militia" (p. 270). Arms Covered: The Court ruled the Second Amendment was not applicable to Morton Grove but added that even then the, "possession of handguns by individuals is not part of the right to keep and bear arms," and therefore the regulation of certain arms did not violate the amendment (p. 271). Reasonable Regulation: Both under the state constitution and the U.S. Constitution (even though it considered the latter inapplicable) the Court opined that handguns could be regulated as a reasonable exercise of police power and they are not protected as militia arms (pp. 267 and 270-271). Self-Defense: The Court cited the purpose of the Second Amendment was to protect the militia not the individual's use of arms. Additionally, the right to self-defense was argued by the appellants under the Ninth Amendment as, "an unwritten, fundamental, individual right" (p. 271). The Court ruled that the Supreme Court has never embraced this interpretation and, although written about a different amendment, the Court's opinion clearly did not recognize the individual use of firearms for self-defense as a constitutional right. Individual, Collective, or Civic: The Court denied arguments for an individual right to bear arms under the Second Amendment and instead embraced the collective and civic interpretations linking the right to the militia. However, the opinion reads more collective than civic since there is not a reiteration of the civic duty tied to the possession of arms. Read Full Opinion Online |
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| U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001) | Federal | N/A | Amplifying | Yes | Yes | Yes (implied) | Individual |
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Summary: Joe Emerson was charged for violating a federal law prohibiting the possession of firearms by persons subject to a restraining order for domestic violence. Emerson argued that the federal law violated his rights under the second and fifth amendments and violated the state's rights under the tenth amendment. The Court did not agree that Emerson's rights were infringed as it still allowed for "reasonable regulation" under limited circumstances. However, the Court agreed that the Second Amendment was meant to protect an individual right. The Court incorporated arguments about the Second Amendment from recent scholarship which informed the history presented in the opinion that "none of our sister circuits" accepted (p. 220). Many consider this case as a precursor to the D.C. v. Heller, Id. decision. Second Amendment Limits: The Court's decision is focused on the U.S. Code and the history supplied focuses on the Founders' intent to limit the federal government (see Section D). Incorporated by Fourteenth Amendment: N/A Militia Clause: The Court challenged the "sophisticated" collective interpretation of the U.S. v. Miller, Id. by the Supreme Court that only allowed arms to those actually enlisted in military service or the National Guard. It regarded the Court's description of the militia to be more inclusive of all able-bodies males (p. 226-227). The Court also stated that reference to "the people" in the Second Amendment is not restricted to the militia but that the rights associated with "the people" are, "individual or personal, and not collective or quasi-collective" (pp. 228-229). The militia clause cannot be qualifying as that would counter the guaranteed right (p. 233-235). Arms Covered: Although the Court made it clear that the possession of arms was not limited to those persons in militia or military service, it upheld the limitations on certain types of arms as discussed in U.S. v. Miller, Id. under the National Firearms Act (p. 224 and 264). Reasonable Regulation: The Court held that, "Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country" (p. 261). Self-Defense: The question was not directly addressed by the Court. However, in its historical review of the Second Amendment the Court made note of state ratification conventions for the U.S. Constitution and 19th century legal commentaries that tie the right to bear arms to self-defense (p. 241 and 256). Individual, Collective, or Civic: The Court promoted the individual interpretation using contemporaneous scholarship. In particular the Court addressed the militia clause of the Second Amendment and noted: "The militia consisted of the people bearing their own arms when called to active service, arms which they kept and hence knew how to use. If the people were disarmed there could be no militia (well-regulated or otherwise) as it was then understood. That expresses the proper understanding of the relationship between the Second Amendment's preamble and its substantive guarantee" (p. 235). The civic interpretation also holds to the history supplied by the Court and is partially addressed in passages from Justice Joseph Story and Justice Thomas Cooley (pp. 258-259). However, this interpretation was not favored by the Court which focused on the debate between collective and individual interpretations. Read Full Opinion Online |
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| Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) | Federal | No | Qualifying | Yes | Yes | No (implied) | Collective |
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Summary: Sean Silveira and eight other plaintiffs challenged that California's Assault Weapons Control Act violated the Second Amendment. The Act restricted the possession, use, and transfer of semi-automatic assault weapons in California after the Stockton schoolyard shooting. Forty guns were covered by the original Act which was amended in 1999 to include a process for adding weapons in order to match the change in technology (p. 1056-1058). The Court favored the collective right interpretation and denied that the Act was arbitrary but instead found it to be reasonable legislation. This case is sometimes considered a rebuttal against the Fifth Circuit Court's opinion in U.S. v. Emerson, Id.. Second Amendment Limits: The Court supported the collective interpretation and the history discussed focused on the protection of state militias from federal intervention (p. 1086-1087). Incorporated by Fourteenth Amendment: The Court denied that the Second Amendment was applicable under the Fourteenth Amendment (p. 1088). Militia Clause: The Court defined the militia clause as qualifying the purpose of the Second Amendment since, "the first clause explains the purpose of the more substantive clause that follows, or, to put it differently, it explains the reason necessitating or warranting the enactment of the substantive provision" (p. 1075). Arms Covered: The collective interpretation used by the Court allowed for the regulation of guns owned by individuals. The Court stated, "we hold that the Second Amendment imposes no limitation on California's ability to enact legislation regulating or prohibiting the possession or use of firearms, including dangerous weapons such as assault weapons" (p. 1087). Additionally, the Court noted that the police should possess, "firearms more potent than those available to the rest of the populace in order to maintain public safety" (p. 1089). Reasonable Regulation: The collective interpretation of the Second Amendment used by the Court allowed for unlimited regulation. Again, the Court stated, "we hold that the Second Amendment imposes no limitation on California's ability to enact legislation regulating or prohibiting the possession or use of firearms" (p. 1087). Self-Defense: The Court refused the individual interpretation of the Second Amendment and noted that when self-defense was protected by the amendment it was the collective self-defense of the people against encroachments by the federal government (p. 1084). Individual, Collective, or Civic: The Court stated that the Second Amendment, "protects the people's right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use" (p. 1066). The Court also dismissed the civic interpretation which it referred to as the "limited individual rights" model (p. 1060). Read Full Opinion Online |
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| U.S. v. Skoien, 614 F.3d 638 (2010) | N/A | N/A | N/A | N/A | Yes | Yes | Individual |
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Summary: This appeal of Steven Skoien was heard en banc by the Seventh Circuit Court which had originally vacated and remanded his conviction back to the district court (U.S. v. Skoien, 587 F.3d 803 (2009)). The Court affirmed Skoien’s conviction who was found in possession of a pistol, rifle, and shotgun while on probation from his second domestic-violence conviction. Skoien appealed that the law violated his Second Amendment right but the Court ruled that certain classes of citizens, such as felons, can be disqualified. Second Amendment Limits: The case focuses on a federal law and the Court does not discuss an application to the states under the Second Amendment. But the citation of McDonald v. Chicago, Id. makes it apparent that the Court is aware of that ruling and precedent. Incorporated by Fourteenth Amendment: Although the decision refers to McDonald v. Chicago, Id., the Fourteenth Amendment is not discussed. Militia Clause: N/A Arms Covered: N/A Reasonable Regulation: The Court stated that the D.C. v. Heller, Id. decision left open regulation to legislators and, "some categorical limits are proper is part of the original meaning, leaving to the people's elected representative the filling in of details" (p. 640). The Court stated that: "Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court....Categorical limits on the possession of firearms would not be a constitutional anomaly" (p. 641). The Court then noted that even the First Amendment is limited and constitutional rights are not absolute. Self-Defense: The Court quoted the D.C. v. Heller, Id. decision that the Second Amendment protects the right to self-defense. Individual, Collective, or Civic: This ruling acknowledges the individual interpretation by D.C. v. Heller, Id. and uses that opinion to bolster their argument that the Second Amendment right can be regulated. In its discussion of determining a "standard of review" the Court uses "intermediate scrutiny" that allows a law to be valid, "if substantially related to an important governmental objective" the Court found that, "preventing armed mayhem, is an important governmental objective" and allows for the regulation of the right to bear arms (pp. 641-642). Not all who support the individual interpretation of the Second Amendment agree with this ruling as it allows more government regulation than they deem appropriate. Read Full Opinion Online |
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| Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012) | Federal and State |
Yes | N/A | Yes (implied) | Yes | Yes | Individual |
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Summary: The Second Circuit Court ruled that New York's law that required citizens to demonstrate "proper cause" to get a concealed handgun license survived constitutional scrutiny under the Second Amendment. The Court in citing D.C. v. Heller, Id. ruled that the Second Amendment applied to self-defense; however, the ruling guaranteed the right for use in the home but did not determine the scope of use in public. Since public carry was open to interpretation, the Court reviewed the history of state gun control measures and found New York's law to be constitutional under intermediate scrutiny (p. 96). Second Amendment Limits: In detailing the history of New York's gun laws, the Court noted that the concept that the Second Amendment does not apply to the states is incorrect (p. 85). Incorporated by Fourteenth Amendment: The Court cited McDonald v. Chicago, Id. when reiterating that the Second Amendment is applicable to the states (p. 89). Militia Clause: N/A Arms Covered: The Court focused on the licensing of handguns and suggested that the public use of certain arms can be regulated by the states. Reasonable Regulation: The Court reasoned: "The state's ability to regulate firearms and, for that matter, conduct, is qualitatively different in public than in home" (p. 94). The Court noted that D.C. v. Heller, Id. established that public firearms possession is open to regulation. The Federal Court then determined that: "The historical prevalence of the regulation of firearms in public demonstrates that while the Second Amendment's core concerns are strongest inside hearth and home, states have long recognized a countervailing and competing set of concerns with regard to handgun ownership and use in public" (p. 96). Self-Defense: The Court maintained that the individual's right to use arms for self-defense. However, the use of arms for self-defense in public can be regulated by the government that can, as in New York, require "proper cause" to issue a license (p. 98). Individual, Collective, or Civic: This case upholds the individual's right to self-defense citing D.C. v. Heller, Id. but limits the right to carry arms in public for self-defense. Gun control advocates praise this ruling while gun rights activists consider "may issue" licenses, like those in New York, to be an infringement on the Second Amendment since the citizen must prove a need. Many expected differences between this opinion and the following Moore v. Madigan would force the Supreme Court to clarify the limitations on public carry; but the Supreme Court denied the petition to review this decision in April 2013.[54] Read Full Opinion Online |
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| Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) | Federal and State |
Yes | Amplifying | Yes | Yes | Yes | Individual |
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Summary: Appellants challenged the Illinois state law that did not allow public carry of ready-to-use arms outside a home or place of business with a few exceptions for police, hunters, and shooting clubs. The appellants argued that this restriction violated their Second Amendment right for self-defense. The Court stated that the, "right of armed self-defense is broader than the right to have a gun in one's home" (p. 935). The Court reviewed empirical literature on public carry and determined the evidence failed, "to establish a pragmatic defense of the Illinois law" (p. 939). Second Amendment Limits: The Court followed the precedent set under McDonald v. Chicago, Id. that established that the Second Amendment applies to both federal and state governments. Incorporated by Fourteenth Amendment: The Court noted that the decision by McDonald v. Chicago, Id. broadened the reach of the Second Amendment (p. 939). Militia Clause: The Court noted that supporters of Illinois's law argued the collective interpretation and associated the right to arms with the militia which the Court denied under the holding in the Supreme Court decision of D.C. v. Heller, Id. (p. 935). Arms Covered: The Court stated that the D.C. v. Heller, Id. decision allowed that some "dangerous or unusual weapons" can be prohibited and are not protected by the Second Amendment (p. 936). Reasonable Regulation: The Court stated that a "blanket prohibition" was not justified when, "the public might benefit." However, the "lesser burden" of a ban of guns from particular places, such as schools, can be allowed. Additionally, gun prohibitions can be enacted against certain classes of persons, such as felons, who pose a danger to the public (p. 940). The Court supported some regulation in its decision which allowed 180 days for the state legislature, "to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion" (p. 942). Self-Defense: The Court stated that the D.C. v. Heller, Id. opinion did not address public carry but the Court also did not limit the right to self-defense to inside the home and the very language of the right to "bear" arms, "implies a right to carry a loaded gun outside the home" (p. 936). The Court noted that: "To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald" (p. 937). Individual, Collective, or Civic: This case is praised by gun rights proponents who argue that law abiding citizens should not be prevented from carrying arms. Some have interpreted this case to be distinguished from Kachalsky v. County of Westchester, Id. with its different interpretation of D.C. v. Heller, Id. and the right to self-defense outside the home (see the Court's discussion of the Kachalsky opinion on p. 941). Read Full Opinion Online |
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© enlighten technologies™ and Heather Pundt 2015
This article is a continuation of a series of research articles on the Second Amendment and gun culture in the United States. To contact the author, Heather Pundt, please use hpundt (at) lawchek.net or visit her Google+ Profile.