Two years ago, I wrote Of Laws and Sausages, just before the Supreme Court heard oral arguments in District of Columbia v. Heller. It was, one reader said, a “thirteen thousand word wall of text” but “worthwhile.” I’m going to reprint it here, selectively edited, and including both Heller and McDonald. Other people are dissecting the McDonald decision, the concurrences and the dissents, I think it’s important that we review how we got here.
Back in May of 2003 when I started this blog, I had just begun a months-long debate with an Irishman living in London. The topic of that debate, unsurprisingly, was the Second Amendment. During that debate he asked me a question: “(L)et’s say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?“
That’s the question, alright. And it has been for literally the last few decades.
But how did we get to this point?
“Our Revolution commenced on more favorable ground. It presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts. Yet we did not avail ourselves of all the advantages of our position. We had never been permitted to exercise self-government. When forced to assume it, we were novices in its science. Its principles and forms had entered little into our former education. We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.” — Thomas Jefferson pp.46 – 47, The Living Thoughts of Thomas Jefferson, John Dewey, presenter.
On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. –Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322 Paul K. Sadover
It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism…. If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield. – George Washington, Farewell Address, 1796
Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government. – James Madison
The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals…. It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of. —Albert Gallatin of the New York Historical Society, October 7, 1789.
The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now. — South Carolina v. US, 199 U.S. 437, 448 (1905)
A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time. – Justice Sutherland (dissenting), Blaisdell (1934)
I quite agree with the opinion of the court that whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned. – (Ibid.)
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. – West Virginia v Barnette (1943)
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or…the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences. – Judge Alex Kozinski, dissenting, Silveira v Lockyer denial to re-hear en banc, 9th Circuit Court of Appeals, (2003)
I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, and with the Fifth Circuit’s opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.
The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel’s theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that “the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms.” It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel’s protection of what it calls the “people’s right to bear arms” protects that “right” in the same fictional sense as the “people’s” rights are protected in a “people’s democratic republic.”
About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden. – Judge Andrew Jay Kleinfeld, dissenting, also from Silveira v Lockyer denial to re-hear en banc, 9th Circuit Court of Appeals, (2003)
It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.
What ‘we the people’ want most of all is someone who will agree with us as to what the evolving constitution says.
We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.
What in the world is a ‘moderate interpretation’ of the text? Halfway between what it really says and what you want it to say? – Antonin Scalia, excerpts from a speech quoted in the New Orleans Times-Picayune, 3/10/04
Something has gone seriously awry with this Court’s interpretation of the Constitution. – Clarence Thomas (dissenting) Kelo v New London (2005)
Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied. – (Ibid.)
The 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia striking down the District of Columbia’s handgun law is judicial activism at its worst. By disregarding nearly seventy years of U.S. Supreme Court precedent, two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports. – Paul Helmke, President of The Brady Center to Prevent Gun Violence.
The Parker v District of Columbia decision handed down on March 9, 2007 by the D.C. District Court of Appeals was a monumentally significant piece of jurisprudence, but it was most emphatically not “judicial activism” in any way, shape, or form. It was the proper application of Constitutional law, which is the duty and purpose of the federal courts. It is, unfortunately, not something the courts have a stellar record on.
As Judge Kozinski noted in the quote above, “when (judges are) none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.” As I’ve mentioned previously, since I started studying the history of the right to arms I’ve read enough legal decisions to make ones eyes bleed. One of the finest books I can recommend to anyone interested in this topic is Clayton Cramer‘s For Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (1994). This is a dry, college-level textbook of case law, but it quite thoroughly details the judicial history of the right to arms, and illustrates in no uncertain terms where judges have constitutionalized their personal preferences. From the preface:
In 1979 a solicitation from the National Rifle Association arrived in my mailbox. Like many urban Baby Boomers, I had no exposure to hunting, gun ownership, or the rest of what is sometimes disparaged as “redneck culture.” Like many of our peers, influenced by my schooling and the popular press, my perceptions of gun owners and hunters were strongly negative; my answers to the NRA survey could only be considered cheeky and insulting. “Did I hunt? How often? What sort of game?” I responded, “Yes, daily, only people,” and stuffed the survey into the business reply envelope. That’ll show them!
“The only people that need guns are the people that hang out with criminals,” I told myself. Like most of my urban contemporaries, I assumed – based on a steady drumbeat of conventional wisdom – that the Second Amendment was “about the National Guard – the militia.” Why did anyone want to own a gun?
Yet, within two years of my cheeky response to the NRA survey, the critical necessity of self-defense had turned my wife and I into handgun owners. (A number of acquaintances and friends of my wife and I during the period 1975-1980 were murdered, stabbed, raped, beheaded, robbed, or beaten. ) I researched the laws that regulated the ownership and carrying of firearms, to make sure I did not unintentionally become a criminal. In the middle of my research, I found myself face to face with California Military & Veterans Code §120 – and suddenly, all the carefully inculcated notions about the meaning of the Second Amendment collapsed – I was a member of the militia, and nearly everything that I believed on the subject of the Second Amendment was in need of more careful study.
Now, eleven years later, on the 200th anniversary of the ratification of the Bill of Rights, December 15, 1791, I find myself one of those crazy people who actually think the Second Amendment was intended to protect an individual right “to keep and bear arms” – and I encourage all who disagree to examine the evidence of original intent.
I didn’t start out with Clayton’s bias against guns. I was raised in the “redneck culture.” Though I have never been a hunter, gun ownership has always been a part of my Southern, Jacksonian, Scots-Irish heritage. It was not until I was exposed personally to the urban mindset, influenced by public schooling and the constant drumbeat of the popular media, that I came to realize that so many people are as Clayton Cramer had started off. His epiphany came from discovering that he was a member of the militia. Mine came when I met the woman who would become my wife – and who had been steeped in the anti-gun media culture for most of her life. That was in July, 1993. By 1995 I was well on the way to becoming a real gun-nut, thoroughly angered by the blatantly unconstitutional actions of the legislatures and courts, aided and abetted by the useful idiots who supported futile, counterproductive policies in open opposition to our enumerated individual rights on the feel-good basis that they were doing so for “public safety” reasons.
I think perhaps the most blatant example of this comes from ACLU President Nadine Strossen in an interview she gave to Reason magazine. Ms. Strossen had the intestinal fortitude to opine:
On the gun issue, I instituted a reexamination a few years ago in response to a number of things, but the most important one was an article by Sanford Levinson at University of Texas Law School that summarized a wave of new historical scholarship. Levinson’s argument was that in the 18th century context, a well-regulated militia meant nothing other than people in the privacy of their homes.
So we looked into the historical scholarship there and ended up not being persuaded. The plain language of the Second Amendment in no way, shape, or form, can be construed, I think, as giving an absolute right to unregulated gun ownership. It says, “A well-regulated militia being necessary to the security of a free state, the right to bear arms shall not be infringed.” Certainly, when you have the notion of “well-regulated” right in the constitutional language itself, it seems to defy any argument that regulation is inconsistent with the amendment.
Putting all that aside, I don’t want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn’t necessarily mean that it is a fundamental civil liberty.
(My emphasis.) Mentioned in the Constitution. Yes, the Second Amendment of the BILL OF RIGHTS merely mentions “the right of the people to keep and bear arms.” That can’t possibly mean “that it is their right and duty to be at all times armed.”
As law professor Mike O’Shea put it:
“So the Constitution says Roe, but it doesn’t say I have the right to keep a gun to defend my home, huh?”
I guess you have to be a high-level intellectual to convince yourself that an enumerated right somehow isn’t a fundamental civil liberty.
I believe I have few illusions on this topic. I’m quite aware that this is a battle of philosophies, but I am secure in the conviction that the Founders – whatever their individual faults – very carefully established a form of government best suited to the advancement of all humanity, that each and every part of the Bill of Rights was included to put off-limits the rights that no majority should ever have the power to usurp, and that by maintaining these rights inviolate our government could never become despotic. The United States has become the single super-power in the world, what Professor Amy Chua labels a “hyperpower,” due in no small measure to our insistence on and respect for government by rule of law, but that respect has been diminished by a history of our legislatures violating the prohibitions of the Constitution, often at the urging of and almost always with the complicity of the executive, and the courts backing those violations for perceived, promised, or imagined transient benefits.
“Judicial activism”? If judicial activism is defined as “negat(ing) the democratically-expressed will of the people” when said will is in opposition to the meaning of Constitution, then we haven’t had nearly enough of it, for that is the duty of the courts. There is an amendment process spelled out in Article V of that document for situations in which changes are deemed necessary.
In 2005 George Will wrote:
When (Senator Harry) Reid endorsed Scalia for chief justice, he said: “I disagree with many of the results that he arrives at, but his reason for arriving at those results are (sic) very hard to dispute.” There you have, starkly and ingenuously confessed, the judicial philosophy — if it can be dignified as such — of Reid and like-minded Democrats: Regardless of constitutional reasoning that can be annoyingly hard to refute, we care only about results. How many thoughtful Democrats will wish to take their stand where Reid has planted that flag?
This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes — “results” — they, like the result-oriented senators who confirm them, consider desirable? If so, in what sense does the Constitution still constitute the nation?
Indeed. I would argue that in large part it no longer does. I would also note that each member of Congress swears an oath upon taking office:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
It would appear that Senator Reid (and the overwhelming majority of his colleagues in Congress) need an extensive remedial course in the meaning of that document. But this is not to say that it cannot be restored, however difficult and unlikely that may be. The decision in Parker v D.C. is a bold step in that direction.
To illustrate the corruption of the Rule of Law, it is necessary to review the history of the right to arms in the courts. Bear in mind, the right to arms is hardly the only enumerated right to be eviscerated by statute and precedent, but it is the one most easily illustrated, as the vivisection has been long, blatant, and unapologetic. Cramer’s book does this in exhaustive depth. Since this is a blog post, albeit of exceptional length for the style, I’ll keep the list as short as I feel necessary to emphatically make the point. I will, of course, be repeating much of what I’ve written in other posts on this blog over the last four-plus years.
There have been two main components in the legal assault on the right to arms. The first has to do with the carrying of concealed weapons, the second having to do with the disarming of non-whites. In both cases, the actions of our courts have very often been, when viewed from modern times, egregious. Together, after 1939, the resulting legal precedents were combined into efforts to disarm the general public.
The earliest legal commentary on the intent of the Second Amendment comes from St. George Tucker’s Blackstone’s Commentaries, first published in 1803. St. George Tucker was a lawyer, a professor at the William and Mary college of law, and a district court judge. His text was the primary source used in early Constitutional Law classes in 19th century America. Tucker wrote:
8. A well regulated militia being necessary to the security of a free state, the right of the people to keep,(sic) and bear arms, shall not be infringed. Amendments to C. U. S. Art. 4.
This may be considered as the true palladium of liberty …. The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
He also wrote:
Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under colour of an unconstitutional act of the legislature, or executive. In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game-laws, as was before observed, have been converted into the means of disarming the body of the people: the statute de donis conditionalibus has been the rock, on which the existence and influence of a most powerful aristocracy, has been founded, and erected: the acts directing the mode of petitioning parliament, &c. and those for prohibiting riots: and for suppressing assemblies of free-masons, &c. are so many ways for preventing public meetings of the people to deliberate upon their public, or national concerns. The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.
(My emphasis). So, as of 1803 the legal understanding of the Second Amendment was that it was a prohibition on Congress to prevent the disarmament of “the people” – that is, the free, white citizens of the United States. (Slavery got addressed with the Civil War.)
In 1833 Supreme Court Justice Joseph Story published his Commentaries on the Constitution of the United States. On the topic of the Second Amendment, he echoed St. George Tucker:
§ 1889. The next amendment is: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
But Story was prescient, concluding:
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
(My emphasis.) Regardless, both Tucker and Story, contemporaries of the Founders, understood that the right protected by the Second Amendment was an individual one, not some ill-defined “collective right” on the part of the states. And further, even should Story’s prescient vision come true and the militia system fall into disrepair, the right protected by the Second Amendment would still exist. It was precisely this indifference, disgust, and contempt that has led to Britain’s
general victim disarmament. It is this goal that gun “control” groups here have been trying to achieve for decades through efforts to make it increasingly more difficult and expensive to acquire, retain, and use firearms, and to engender in the general public a distaste for a culture that has traditionally held a place of honor in America.
The first legal challenge to the right to arms to reach a state supreme court occurred in 1822 in Kentucky’s Bliss v Commonwealth. Kentucky had outlawed the concealed carry of weapons “unless when traveling on a journey.” Defendant Bliss had been convicted of carrying a sword-cane, and had filed an appeal on the grounds that the Kentucky constitution stated “the right of the citizen to bear arms in defense of themselves and the state shall not be questioned.” The Kentucky Supreme Court said:
That the provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons concealed in the manner described in the act, they may, nevertheless, bear arms in any other admissible form. But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restraint the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.
If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious.
And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.
In 1822 that Kentucky Supreme Court understood that words have meaning, and words in a Constitution have specific meanings. Bliss won.
The state of Kentucky, taking Washington’s advice to heart, amended its Constitution in 1891 to: “…(T)he right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.”
Kentucky passed a “shall-issue” concealed-carry law in 1996.
But in 1833’s State v. Mitchell, Indiana’s Supreme Court felt differently. Their Constitution still reads today “The people shall have a right to bear arms, for the defense of themselves and the State,” wording not too far different from Kentucky’s. But in 1831 the state legislature passed a similar statute: “That every person, not being a traveller, who shall wear or carry any dirk, pistol, sword in a sword-cane, or other dangerous weapon concealed shall upon conviction thereof, be fined in any sum not exceeding one hundred dollars.” Clayton Cramer notes in his book:
From the frequency with which this decision is cited one might assume that it is a powerful opinion, containing a clear and unambiguous elucidation of why concealed carry laws are constitutional.
You know, like Bliss was. However:
In fact, the entire decision of the Indiana Supreme Court in this case is a single sentence: “It was held in this case, that the statute of 1831, prohibiting all persons, except travellers, from wearing or carrying concealed weapons, is not unconstitutional.”
The Indiana Supreme Court had upheld a lower court’s decision, and found the question sufficiently uninteresting – or sufficiently difficult to justify – that they offered no explanation of the apparent conflict between Article I, §20 of the Indiana Constitution…and a law prohibiting the carrying of concealed weapons. In light of the clear-cut contrary position taken in the only extant precedent, Bliss v. Commonwealth (1822), the position taken in St. George Tucker’s 1803 edition of Blackstone, William Rawle’s 1829 A View of the Constitution, and the clear language of the Indiana Constitution itself, the Indiana Supreme Court’s apparent lack of need to explain its ruling is all the more puzzling.
Why then, is this slip of a decision so often cited? Probably because it was the only precedent to which later state courts could point, in order to uphold statutes that prohibited concealed carry of weapons.
At least Kentucky had the decency to amend its Constitution after its Supreme Court practiced “judicial activism at its worst.”
Indiana passed “shall issue” concealed carry in 1980.
The earliest federal case I am aware of that even mentions the right to arms is also one of the most reviled. I have cited it on numerous occasion on this blog, and have been rebuked for it more than once. It is Dred Scott v Sandford (1857). In this case the U.S. Supreme Court found that blacks, free or slave, could not be citizens. The reasoning of the seven-justice majority:
For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
(My emphasis.) Note that the right to “keep and carry arms wherever they went” is a right not predicated on membership in a militia, but merely on ones citizenship. This is in agreement with St. George Tucker, Joseph Story, Thomas Jefferson, and the Kentucky Supreme Court.
The Federal Court of Appeals Parker decision also comments on this case, but its excerpt is different:
For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.
Although Dred Scott is as infamous as it was erroneous in holding that African-Americans are not citizens, this passage expresses the view, albeit in passing, that the Second Amendment contains a personal right. It is included among other individual rights, such as the right to trial by jury and the privilege against self-incrimination. The other Second Amendment cases of the mid-nineteenth century did not touch upon the individual versus collective nature of the Amendment’s guarantee.
As I have noted elsewhere, Chief Justice Taney and six other Justices were wrong to deny citizenship to blacks, but they knew exactly what rights they were denying them – as individuals – by doing so.
So, as late as 1857 the Supreme Court of the U.S. understood that the right to arms was individual, and not directly associated with militia service. In fact, the Court held that Congress had no power to “deny the people the right to keep and bear arms,” or inhibit their ability to “keep and carry arms wherever they went.”
Once over the lip of the slippery slope, things go rapidly downhill from there.
Prior to the Civil War it was legally recognized that the Bill of Rights served as a check upon the Federal government only. The Second Amendment to the Constitution of the United States was not even brought up in Bliss v. Commonwealth, only the State constitutional protection mattered there. However, following the Civil War many Southern states enacted “Black Codes” – laws which were designed to keep blacks if not in slavery then in a state not far removed. And the courts went along happily, upholding law after law, creating precedent after precedent, always with the eye on the immediate result and never considering the damage being done to the Rule of Law. Chief Justice Taney recognized what the rights of citizens were, and the Civil War was very much about just who was and who wasn’t a citizen. Following the war the Thirteenth Amendment was passed defining who was a citizen, and the Fourteenth Amendment was passed with the intent to ensure the rights of those new citizens were protected against infringement by the states. The Fourteenth Amendment even uses the “privileges and immunities” language of the Dred Scott decision in its “equal protection” clause:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(My emphasis.) The Fourteenth Amendment was ratified in 1868.
With regard to the Second Amendment, the damage began with U.S. v Cruikshank (1875), a case in which a mob had killed over 100 blacks in an 1873 massacre in Colfax, Louisiana. After the slaughter only nine men were arrested, and they were charged with the murder of only one man. The Cruikshank case was an appeal over a conviction for violation of Louisiana’s Enforcement Acts of 1870, laws designed to protect the rights of the newly freed.
The complaint also uses the language of the Dred Scott decision and the 14th Amendment:
The second (count) avers an intent to hinder and prevent the exercise by the same persons of the ‘right to keep and bear arms for a lawful purpose.’ (Second Amendment)
The third avers an intent to deprive the same persons ‘of their respective several lives and liberty of person, without due process of law.’ (Fifth Amendment)
The fourth avers an intent to deprive the same persons of the ‘free exercise and enjoyment of the right and privilege to the full and equal benefit of all laws and proceedings for the security of persons and property’ enjoyed by white citizens. (Fourteenth Amendment)
The fifth avers an intent to hinder and prevent the same persons ‘in the exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the said United States, and as citizens of the said State of Louisiana, by reason of and for and on account of the race and color’ of the said persons. (Fourteenth Amendment)
The appellant lost. On the part of the Second Amendment the Court said:
The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.
(My emphasis.) Note that this language matches that of the Kentucky Supreme Court in Bliss v Commonwealth. But here’s the difference:
The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes….
(My emphasis.) Thus a precedent was established allowing the myriad patchwork of conflicting gun laws we have across the nation that today can turn a law-abiding citizen into a felon for crossing a city, county, or state line with a firearm in their vehicle, for possessing a .22 caliber tube-fed rifle in New Jersey, for missing a flight at JFK when traveling with a firearm, or at least get them arrested and incarcerated without legal cause. The federal government can’t (legally) infringe on the right to arms, but state and local governments could! The expressed intent of the 14th Amendment to bring “equal protection” of the “privileges and immunities” of citizenship to all was kicked to the curb, discarded “like a crumpled gum wrapper,” in its first test. Cruikshank was the primary reason that Washington, D.C. was the ideal place to bring suit against a gun ban. Not being a “state,” its laws are Federal in nature, and the Second Amendment directly applies.
Cruikshank was used as precedent in a follow-on case, Presser v Illinois (1886) wherein it was decided – with reference to Cruikshank – that private militias could be prohibited by state law – however:
(I)n view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.
For some reason this portion of the decision never gets mentioned by gun
ban control safety advocates, even though the decision states it not once, but twice:
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 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.
(My emphasis.) Presser supports the idea that some gun control is valid, but outright disarmament is verboten.
Not that that ever stopped anybody….
Following Cruikshank and Presser, it was A-OK to pass laws with the intent to disarm people “not like us” through either state or local efforts, laws “never intended to be applied to the white population,” that later were expanded to include other minorities, and then, as in the case of D.C. (and Chicago), everyone not on the government payroll.
But the bad precedents don’t stop at Presser, not by a long-shot.
By the turn of the 20th Century, the executive and legislative branches of government had become more “progressive.” Marx had published his Communist Manifesto in 1848, and his flawed but seductive philosophy had made major inroads in Europe and America. One of those inroads here (IMHO) was the “Progressive movement.” Although I don’t think “Progressives” of the period had embraced Marxism in whole, their movement had gained much popular support and resulted in significant alteration to the Federal government – much of it bad. The Progressives were responsible for establishment of the income tax (Amendment XVI, and one of the planks of the Manifesto), the popular election of senators (Amendment XVII), and Prohibition (Amendment XVIII).
Pushing Constitutional Amendments through to ratification is an intentionally difficult process. The fact that two of these amendments passed in a single year, (1913) and the third six years later (followed by women’s suffrage in 1920) indicates a significant popular political movement. There has never again been so short a period in which so many amendments have been passed. That movement was responsible, I believe, for the election of Franklin Roosevelt in 1933. One of the planks Roosevelt ran on was the ending of Prohibition, and he was successful in that, but it left a lot of Treasury agents without much to do, and there had been a huge (but finally declining) amount of violence involved in the illegal traffic in alcohol, most vividly with fully-automatic weapons as romanticized by Hollywood during and after the period.
In 1934 the Roosevelt administration pushed through the National Firearms Act as a part of its “war on crime.” (Sound familiar?) The 1934 NFA was passed as a “revenue measure” since the federal legislature understood that it did not have the power (per Cruikshank) to infringe on the right to arms. It did, however, have the power to tax – thus the weapons of movie criminals (machine guns, sawed-off shotguns, “silencers”) could be “regulated” through taxation. And in order to make sure the taxes got paid, registration. Handguns – then as now the most popular “crime guns” going – were excluded, as Clayton Cramer explains:
Because of concerns expressed by some Congressmen that including handguns under this regulatory scheme would become burdensome to law-abiding people, and “cause an awful revolt all over the United States amongst private citizens,” handguns were removed from the law.
It was another example of “divide and conquer.” Few people owned full-auto weapons or suppressors. Sawed-off shotguns were dirt cheap. Nobody cared much about them. Everybody “knew” these were the weapons of criminals, but handguns? Lots of good people owned handguns. They wouldn’t stand for being lumped in with the criminals.
Today we have this same condition with “assault weapons” and rifles chambered for the .50BMG cartridge. When the “assault weapons ban” of 1994 was passed, not that many people owned them, but the law (thankfully) was badly written, and firearms with all of the appearance and functionality could still be manufactured and sold. Judging by the Great Zumbo Incident of 2007, I’d say that there are a lot of “terrorist rifle” owners out there today.
But not so many people own a .50BMG “sniper rifle,” or a .338 Lapua “intermediate sniper rifle” so they’re still fair game for the banners. After all, public indifference, disgust, and contempt (not to mention abject fear) have been the goals of the opponents of the right to arms from the beginning. The .50 BMG rifle’s exclusivity makes it a juicy target, so to speak. The smaller calibers hide behind in the fine print of the proposed legislation.
The ’34 NFA established a registry and tax system. It put a $200 tax ($3,256 in 2010 dollars according to this inflation calculator) on any machine gun, short barreled rifle, short-barreled shotgun, or suppressor each time it was “transferred” – sold to another party. That was about the purchase price of a 1928 model Thompson submachinegun. It was about twenty times the price of a twelve-gauge double-barreled shotgun with the barrels hacked off.
In 1938 a pair of moonshiners were arrested. No moonshine was found, but there was an unregistered, untaxed sawed-off shotgun in their truck. The men were charged with violation of the ’34 NFA. Their defense in District court was that the National Firearms Act “was an attempt to usurp the police powers of the states” and a violation of the Second Amendment of the Constitution. This was not the first time such a defense had been made. In U.S. v Adams (1935) the same argument had been made in a Florida district court. The judge in Adams found that the 1934 NFA was structurally equivalent to the 1914 Harrison Narcotics Tax Act. Wherein specific drugs were taxed and regulated and dispensed only through doctors, specific firearms were taxed and regulated and sold only through licensed gun dealers. The Constitutionality of the Harrison Act had been validated in U.S. v Doremus (1919), a case of heroin distribution.
But here are the differences between Adams and Doremus: First, the right to arms is one of the rights enumerated in the Bill of Rights. No such enumerated protection exists for a right to possess, distribute, or consume a mind-altering substance. Second, the tax in Doremus is described:
Section 1 of the act (section 6287g) requires persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or cocoa leaves or any compound, manufacture, salt, derivative or preparation thereof, to register with the collector of internal revenue of the district his name or style, place of business, and place or places where such business is to be carried on. At the time of such registry every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away any of the said drugs is required to pay to the collector a special tax of $1 per annum.
One dollar. Even in 1919 dollars that’s only $12 today. And that’s an annual tax, not a “per pill” price. The District Court found the Harrison Act to be unconstitutional. The Supreme Court overturned.
The Florida district court found the NFA to be constitutionally acceptable. The Arkansas district court judge did not.
Now, normally the procedure is for the District Attorney to appeal to the Circuit Court of Appeals for his state when he loses, unless he believes the case to be a lost cause. Then, no matter who loses, an appeal usually is made for an en banc rehearing by the entire panel of Appeals court judges in that circuit. Then, if no one is willing to give up, the case is appealed to the Supreme Court. SCOTUS doesn’t hear a lot of cases. They quite often “deny cert” – certiorari, or decline to hear. This does not necessarily mean the Court agrees with the decision, it means they aren’t going to hear for one or more of any number of reasons – statute of limitations, standing of the appellant or appellee, etc. For whatever reason the case does not get four out of nine votes from the Justices, but it’s fairly rare for a case to proceed from the District court to the Supreme Court without passing through the Appellate court first. Honestly, I don’t know of a single other incident where this has occurred.
Miller did. And in record time. The Miller indictment was quashed by the District court on January 3, 1939. It was appealed – directly to the Supreme Court – on January 30. Miller’s lawyer received notification that day that the case had been appealed, but Miller couldn’t be found, the lawyer wasn’t going to get paid, and he did not file either an objection or a brief on behalf of his defendants. Cert was granted on March 13. Oral argument was made on March 30 – with no defense presented whatsoever. The U.S. Attorney’s brief for the case went some 21 pages and ran the gamut.
One of the arguments made by the prosecutor was that neither Miller nor Layton were members of a militia, “well regulated” or otherwise, thus they had no right under the Second Amendment to possess a firearm. The court spent considerable time discussing militias, but they did not reach any conclusion on that question. They could have, easily, but they did not.
Instead, the court ruled very narrowly on the firearm in question – Miller’s sawed-off shotgun. The key excerpt:
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
“In the absence of any evidence…”
No defense was presented. No evidence that short-barreled shotguns have been used in a military capacity since the inception of the firearm was presented to the Court – so they could (quite honestly!) claim judicial ignorance. On the basis of this ignorance the Supreme Court of the United States overturned the District Court’s decision and remanded the case back to that court for “finding.”
Miller was dead, or at least no one could find him. Layton pleaded guilty.
And the slide down the slippery slope accelerated.
In 1942 the first Appeals Court decision on the Second Amendment post-Miller reached the First Circuit: Cases v. U.S. In this case a resident of Puerto Rico, Jose Cases Velazquez, was charged and convicted of violation of the Federal Firearms Act for receiving a firearm and ammunition “in interstate commerce.” (The “commerce clause” raises its ugly head again.) One of Mr. Velazquez’s defenses was that the law under which he was convicted violated his Second Amendment rights. Here’s the pertinent excerpt from the First Circuit’s decision:
The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615.
As irritating as it is, this is actually “good” – i.e. correct – law. Lower courts cannot overturn Supreme Court precedent, and as pointed out above, those two cases do say that.
But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S. Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.
In the case last cited the Supreme Court, after discussing the history of militia organizations in the United States, upheld the validity under the Second Amendment of the National Firearms Act of June 26, 1934, 48 Stat. 1236, in so far as it imposed limitations upon the use of a shotgun having a barrel less than eighteen inches long. It stated the reason for its result on page 178 of the opinion in 307 U.S., on page 818 of 59 S.Ct., 83 L.Ed. 1206, as follows: “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 guarantee’s(sic) the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”
Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.
(My emphasis.) So far, so good. But this is where the ski slope steepens:
However, we do not feet that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called “Commando Units” some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus.
But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities, – almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day, – is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.
Conveniently ignoring the fact that private individuals did indeed own artillery at the time of the Founding. Conveniently ignoring Founder Tench Cox’s quote “Their swords, and every other terrible instrument of the soldier, are the birth right of an American. … The unlimited power of the sword is not in the hands of either the federal or the state governments, but, where I trust in God it will ever remain, in the hands of the people.” The lower court might have decided to make some ruling on what could or couldn’t be a “terrible instrument of the soldier,” but instead, they punted:
Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.
They decided in this case that Mr. Velazquez failed the smell test. But this case was the precedent that essentially rendered the Second Amendment meaningless. Cases was followed by the Third Circuit’s U.S. v Tot, also in 1942. More recently, the Sixth Circuit decided U.S. v. Warin, a 1976 submachinegun case essentially identical to the one that put Hollis Wayne Fincher in prison.
And in 1996 the Ninth Circuit Court of Appeals gave us its Hickman v. Block decision. At least the First Circuit acknowledged that “each case… must be decided on its own facts and the line between what is and what is not a valid federal restriction….” Not so, said the Ninth Circuit.
Douglas Ray Hickman sued the City of Los Angeles, the chief of police, and numerous other entities because he was denied a concealed weapons permit. He began seeking a permit in 1988, and finally filed suit in 1991. It took five years to reach the Ninth Circuit. He claimed that denial of the permit violated his right to arms under the Second Amendment. He lost. The Ninth Circuit Court of Appeals rejected his suit. Here is their deeply researched, exhaustively annotated, well-argued decision in all its jurisprudential glory:
This case turns on the first constitutional standing element: whether Hickman has shown injury to an interest protected by the Second Amendment. We note at the outset that no individual has ever succeeded in demonstrating such injury in federal court. The seminal authority in this area continues to be United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court upheld a conviction under the National Firearms Act, 26 U.S.C. S 1132 (1934), for transporting a sawed-off shotgun in interstate commerce. The Court rejected the appellant’s hypothesis that the Second Amendment protected his possession of that weapon.
First error. The Court did no such thing. No one was convicted in Miller until after the case was remanded to the lower court for “finding.” The Court didn’t reject anything. It told the lower court to determine if the weapon was suitable for militia use (which it didn’t bother to do, since Miller was dead and Layton pleaded guilty.)
Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia. In a famous passage, the Court held that [i]n the absence of any evidence tending to show that the 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. 307 U.S. at 178.
The Ninth Circuit judges hereby illustrate that their reading comprehension is faulty, since that passage contradicts their position, or it illustrates that they have deliberately misinterpreted the decision. Strike one.
The Court’s understanding follows a plain reading of the Amendment’s text. The Amendment’s second clause declares that the goal is to preserve the security of “a free state;” its first clause establishes the premise that well-regulated militia are necessary to this end. Thus it is only in furtherance of state security that “the right of the people to keep and bear arms” is finally proclaimed.
Yet a fair reading of Miller does NOT lead to that conclusion. That position was argued before the Court by the U.S. Attorney, yet the Court based its decision not on whether Miller was a member of a militia, but on whether his weapon was suitable for use in one.
Following Miller, “[i]t is clear that the Second Amendment guarantees a collective rather than an individual right.” United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied 96 S.Ct. 3168 (1976); see also Thomas v. Members of City Council of Portland, 730 F.2d 41, 42 (1st Cir. 1984) (same, citing Warin); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (cited with approval in Lewis, 445 U.S. at 65 n.8) (same). Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.
Nevertheless, Hickman argues that under the Second Amendment, individuals have the right to complain about the manner in which a state arms its citizens. We fail to see the logic in this argument. The Second Amendment creates a right, not a duty.
Not according to Dred Scott v. Sandford. Not according to U.S. v Cruikshank. Not according to Presser v Illinois. The Second Amendment protects a pre-existing right of “bearing arms for a lawful purpose,” to “keep and carry arms” wherever a citizen may go. Strike Two.
It does not oblige the states to keep an armed militia, or to arm their citizens generally, although some states do preserve, nominally at least, a broad individual right to bear arms as a foundation for their state militia. See, e.g., People v. Blue, 54 P.2d 385 (Colo. 1975) (en banc) (citing Colo. Const. art. II, section 13) (recognizing individual right to bear arms under state constitution); State v. Amos, 343 So.2d 166, 168 (La. 1977) (citing La. Const. art I, section 11) (same proposition); State v. Krantz, 164 P.2d 453 (Wash. 1945) (citing Wash. Const. art I, section 24) (same proposition); Akron v. Williams, 177 N.E.2d 802 (Ohio Ct. App. 1966) (citing Ohio Const. art. I, section 4) (same proposition). Even in states which profess to maintain a citizen militia, an individual may not rely on this fact to manipulate the Constitution’s legal injury requirement by arguing that a particular weapon of his admits some military use, or that he himself is a member of the armed citizenry from which the state draws its militia. United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978) (technical membership in state militia insufficient to show legal injury under Second Amendment); Warin, 530 F.2d at 106 (same with respect to individual “subject to enrollment” in state militia); United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1982) (same, citing Warin); United States v. Graves, 554 F.2d 65, 66 n.2 (3rd. Cir. 1977) (en banc) (narrowly construing the Second Amendment “to guarantee the right to bear arms as a member of a militia”).
Hickman’s claim amounts to a “generalized grievance” regarding the organization and training of a state militia. See Lujan, 112 S.Ct. at 2144. We do not involve ourselves in such matters. As the Supreme Court has observed, “decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments,” and as such are nonjusticiable. Gilligan, 413 U.S. at 10. “[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence.” Id. For this reason, among others, we leave military matters to the elected branches of government.
Because Hickman has not sued to defend the state’s right to keep an armed militia, he has failed to show “injury” as required by constitutional standing doctrine. Accordingly we have no jurisdiction to hear his appeal.
So from the founding of a nation in which, according to Thomas Jefferson, it is a citizen’s “right and duty to be at all times armed,” a nation in which St. George Tucker understood that the constitution could not be used to “permit any prohibition of arms to the people,” a nation where in 1857 the Supreme Court declared that the Second Amendment protected a right of citizens “to keep and carry arms wherever they went,” where in 1939 the Supreme Court ruled – not on a defendant’s membership in a militia, but on the suitability of his weapon for militia use, we reached the point where the right of individuals somehow became a right of the States – the famous shift from an “individual rights” understanding to a “collective rights” interpretation. Moreover, “no individual even has standing to challenge any law restricting firearm possession or use.” At least not in the Ninth Circuit (where I happen to live.)
The extinction of the right to arms was almost complete. The meaning of the Second Amendment of the Constitution was altered without the use of the Amendment process – merely by the repeated death-by-a-thousand-cuts judicial re-interpretation, and the power of stare decisis.
But the job was not quite complete.
Beginning about the mid-1970’s there was some pushback. Georgia passed a “may issue” concealed-carry law in 1976. As noted above, Indiana passed “shall-issue” concealed carry in 1980. Indiana was followed by Maine and North Dakota in 1985 and South Dakota in 1986.
In 1987 the opposition woke up when Florida passed its “shall issue” concealed carry law. In the mean time, legal scholars were studying the Second Amendment and the current jurisprudence. In 1989 University of Texas, Austin law professor Sanford Levinson published his seminal paper The Embarrassing Second Amendment in the Yale Law Review, which ignited a firestorm of controversy, and inspired a great deal of research. In 2000, Harvard Law professor Laurence Tribe – a vocal advocate for gun control – revised his textbook American Constitutional Law with regard to the Second Amendment with this passage:
Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.
From the time of Florida’s passage of “shall issue” concealed carry, the total number of states with such laws has increased from nine (with one state, Vermont, not requiring a permit at all) to 36, with three states (Alaska, Vermont, and shortly, Arizona) not requiring permits. On January 1, 2011, Iowa’s “shall issue” law goes into effect, bringing the total number of “shall issue” states to 39 (Alaska and Arizona offer “shall issue” permits which offer their holders some reciprocity with other states, but do not require them for in-state concealed-carry.) The number of “no issue” states has dropped from fifteen to two.
And we got some pushback in the courts. In 2001 the Fifth Circuit Court of Appeals proclaimed in its U.S. v. Emerson decision that the right protected by the Second Amendment was an individual, not a “states” right – in direct opposition to the Ninth Circuit’s declaration in Hickman. Now we had a “circuit split” in which two Appeals courts had ruled on opposite sides of a Constitutional question. Normally this is the point at which the Supreme Court will step in to “fix” the split, but the Court denied cert. on Emerson. The Ninth Circuit, however, responded with not one, but two decisions upholding its Hickman precedent: Nordyke v. King and Silveira v. Lockyer. Neither of those cases were granted cert. either.
Which put the question of whether the Second Amendment protects an individual right in a quandary, and again put the meaning of the Miller decision in a bright spotlight.
Chief Justice John Roberts from his confirmation testimony before Congress when asked about U.S. v Miller:
The 5th Circuit — I think it was in the Emerson case, if I’m remembering it correctly — agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.
The 9th Circuit has taken a different view. I don’t remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.
In other words, it’s only the right of a militia to possess arms and not an individual right.
Particularly since you have this conflict — cert was denied in the Emerson case — I’m not sure it’s been sought in the other one or will be. That’s sort of the issue that’s likely to come before the Supreme Court when you have conflicting views.
I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn’t address that. They said, instead, that the firearm at issue there — I think it was a sawed-off shotgun — is not the type of weapon protected under the militia aspect of the Second Amendment.
So people try to read the tea leaves about Miller and what would come out on this issue. But that’s still very much an open issue.
Not so much. For an off-the-cuff answer, “the Miller case side-stepped the issue” is exactly right, but the Chief Justice erred or mis-stated a few things. In U.S. v Emerson the 5th Circuit three-judge panel did an “original understanding” analysis of the Second Amendment with particular attention paid to U.S. v Miller. At question in that case was whether a law recently passed by Congress violated the Second Amendment by prohibiting anyone under a restraining order from possessing or purchasing a firearm. The District Court judge said, after doing his own “original understanding” analysis said “yes, it does.” However, the appeals court stated in their well-researched decision that, while the right was indeed an individual one, it was not exempt from “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.” It also concluded that the requirement of due process had been met in the case “albeit likely minimally so.” All three judges found the defendant in violation of the statute, but one judge wrote a scathing “special concurrence,” protesting the research and conclusions reached by the other two judges, claiming that their finding that the Second Amendment protected an individual right was mere obiter dicta – and not legally binding – because it was unnecessary to the decision. The majority judges responded:
We reject the special concurrence’s impassioned criticism of our reaching the issue of whether the Second Amendment’s right to keep and bear arms is an individual right. That precise issue was decided by the district court and was briefed and argued by both parties in this court and in the district court. Moreover, in reaching that issue we have only done what the vast majority of other courts faced with similar contentions have done (albeit our resolution of that question is different).
The vast majority have not, as the special concurrence would have us do, simply said it makes no difference whether or not the Second Amendment right to keep and bear arms is an individual right because even if it were an individual right the conviction (or the challenged statute) would be valid. In this case, unless we were to determine the issue of the proper construction of section 922(g)(8) in Emerson’s favor (which the special concurrence does not suggest), resolution of this appeal requires us to determine the constitutionality of section 922(g)(8), facially and as applied, under the Second Amendment (as well as under the due process clause and the commerce clause). We have done so on a straightforward basis.
In other words, “It ain’t dicta,” as Chief Justice Roberts recognized.
The second case the Chief Justice mentioned was California’s Silveira v. Lockyer, which came out shortly after Emerson and that also did an “original understanding” analysis, but one that backed up their flawed Hickman decision. It had to – no three-judge panel can overturn a previous decision of its circuit. Only an en banc rehearing by the full Court can do so, and the Ninth Circuit denied such a rehearing. That denial is where two of the quotes in the opening of this exceedingly long essay come from.
Now we reach D.C. v. Heller. The city of Washington D.C., a Federal District under control of Congress and most emphatically not a “state,” passed what is essentially a complete ban on the possession of functional firearms by its (law-abiding) residents in 1975. Because Washington D.C. is not a state, the Cruikshank and Presser Supreme Court decisions do not have any influence – the Second Amendment applies directly to the city government. A lawsuit was brought against the city under the auspice that the gun ban violated the Second Amendment rights of the citizens of Washington, and the case proceeded all the way to the D.C. Circuit Court of Appeals, considered one of the most important circuits in the Appeals Court system for its precedent setting.
A three-judge panel voted 2-1 that the right to arms IS an individual one (agreeing with the Fifth Circuit) and that the laws in question DID violate the Second Amendment.
The City appealed to the Supreme Court. Cert. was granted. Oral arguments were heard in March, and the Court handed down its decision (PDF file) June 26, 2008 voting 5-4 in favor of the appellant and finding that the right protected by the Second Amendment was, indeed, a right of the individual citizen:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Fifteen minutes after that decision became public, the Second Amendment Foundation (the organization behind Heller) filed suit against the city of Chicago’s handgun ban in Federal court. That suit was McDonald v. City of Chicago.
Heller set the precedent that the Second Amendment protected an individual right. McDonald was filed to overturn Cruikshank and incorporate that right against infringement by not only the Federal government, but state and local governments.
That decision was handed down today, two years and two days after Heller, 134 years after Cruikshank, seventy-one years after Miller, fourteen years after the Ninth Circuit’s Hickman v. Block that declared:
We follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.
Today’s Supreme Court decision declares:
In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, 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. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.
And we finally get an answer to the question: “(L)et’s say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?“
They might try, but it will be much more difficult than it would have been a mere fourteen years ago.