Rulings make clear
what Second means

By David Kopel


Do the American people have a constitutional right to keep and bear arms? To answer that question we don't need to research obscure documents from the 1790s, since the Supreme Court has answered the question in the 1990s.

In the 1992 case of Planned Parenthood vs. Casey, the Supreme Court discussed the Due Process Clause of the 14th Amendment, the clause that makes the federal constitutional rights of individuals enforceable against the states. Justice Sandra Day O'Connor's majority opinion explained that among the rights potentially (but not necessarily) protected by the Due Process Clause are ''the specific guarantees elsewhere provided in the Constitution . . . (such as) the freedom of speech, press, and religion; the right to keep and bear arms.''

O'Connor wasn't saying anything new; her language was a direct quote from the 1976 Supreme Court decision Moore vs. East Cleveland.

Reading the text of the Constitution is enough to determine if the Second Amendment guarantees a right of people or a right of state government. The Second Amendment guarantees ''the right of the people to keep and bear arms, '' just as the First Amendment guarantees the right of ''the people'' peaceably to assemble, the Fourth Amendment guarantees the right of ''the people'' to be free from unreasonable searches, and the Ninth Amendment notes that ''the people'' retain rights that are not specifically listed.

Thus, in the 1990 case of United States vs. Verdugo-Urquidez, Chief Justice William Rehnquist specifically cited the Second Amendment, and wrote that '' 'The people' seems to have been a term of art employed in select parts of the Constitution,'' having in all cases the same meaning - namely a right of individual members of the American community.

But what about the Second Amendment's introductory, subordinate clause, ''A well-regulated militia, being necessary to the security of a free state''? The Supreme Court's most extensive Second Amendment decision, the 1939 case, United States vs. Miller, explained that the ''the militia comprised all males physically capable of acting in concert for the common defense . . . ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.''

If the Second Amendment only protected the National Guard, then the Supreme Court would have thrown Jack Miller's case out of court for lack of standing, since Miller (an Oklahoma bootlegger) was plainly not a member of the National Guard. Yet the Supreme Court has never ruled that individuals cannot raise Second Amendment claims. Instead, the Supreme Court sent the case back to the trial court for fact-finding about whether Miller's particular firearm (a sawed-off shotgun) was a militia-type weapon.

As the Miller case illustrates, individuals may raise Second Amendment claims, even when they are not in the National Guard, and are not participating in any type of militia activity. But the only firearms that the Second Amendment protects are those that may be suitable for militia purposes.

Before Miller, the court's major Second Amendment case was Presser vs. Illinois (1855), involving an Illinois gun law. It's true that you can find statements from the lower federal courts that the Second Amendment isn't worth the paper it's printed on. But in our judicial system, the Supreme Court, and the not the lower courts, is the final authority.

Legal scholarship virtually unanimously backs the Supreme Court. In the past 15 years, there have been more than 50 law journal articles published that conclude the Second Amendment was intended to guarantee an individual right.

Of course, the fact that there is a constitutional right to bear arms does not mean that the right is absolute, any more than other rights are absolute. The Second Amendment has only been used once (in an 1846 Georgia case) to strike down a gun control law.

Most gun control litigation will probably continue to take place under state constitutional rights to keep and bear arms. Forty-three states, including Colorado, include a right to keep and bear arms in their state constitutions. Although some courts (including the current Colorado Supreme Court), treat the right to arms with contempt, there have been 21 cases over the years in which gun laws have been declared void under state constitution arms rights.

Given the verdict of the courts and the scholars, gun control advocates would do well to stop pretending that there is no right to arms, and instead to focus on devising reasonable gun laws which respect the rights of gun owners.


This article, from the Independence Institute staff, fellows and research network, is offered for your use at no charge. Independence Feature Syndicate articles are published for educational purposes only.


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