Amendment II: Right to Bear Arms

Facts of the Case

In 1873, an armed militia of white Southerners attacked a group of freedmen who had gathered in Colfax, Louisiana. Between 100 to 280 were killed and an additional 50 were held captive. The attack became known as the Colfax Massacre. Some of the assailants were charged under the Enforcement Act, which was passed to target white supremacists interfering with the voting rights of freed African Americans in the South during Reconstruction. The case charged that the freedmen's First Amendment right to  assembly and Second Amendment right to bear arms were violated by the state. It became the first case to reach the Supreme Court involving the Second Amendment.

Question

Did the Bill of Rights apply to private actors or state governments?

Opinions

Majority (5): The federal Bill of Rights applies only to actions of the federal government, not the states. "There is in our political system a government of each of the several States, and a Government of the United States. Each is distinct from the others, and has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of those governments will be different from those he has under the other."

Minority (4):  Although vague, the Fourteenth Amendment grants the federal government the power to legislate the actions of individuals who restrict the constitutional rights of others. The First and Second Amendment should be incorporated through the Due Process and Equal Protection clauses of the Fourteenth Amendment.

Case Commentary 

The decision refused to incorporate First and Second Amendment rights to the states. As white Democrats regained power, African Americans in the South found themselves increasingly disenfranchised and unable to exercise the rights endowed to them with the passing of the Reconstruction Amendments (13th, 14th, and 15th). 

Facts of the Case

Herman Presser was a member of a private militia group of German workers associated with the Socialist Labor Party. The militia formed in response to private armies employed by companies in Chicago to end strikes and protect businesses during labor disputes. The state of Illinois judged that Presser and the group unlawfully paraded, drilled, and assembled with arms without license as they were not members of the state's volunteer militia. Presser plead not guilty, refused a trial by jury, and was instead tried by the court. The court found Presser guilty and ordered him to pay a fine of $10. 

Question

Was Presser's Second Amendment right to bear arms violated?

Opinions

Majority (9): The Second Amendment to the United States Constitution limited only the power of Congress and the national government to control firearms, not that of the states, and that the right to peaceably assemble was not protected by the clause referred to except to petition the government for a redress of grievances.

Minority (0):  a

Case Commentary

Presser reaffirmed the Court's earlier ruling in Cruikshank and rejected incorporating the Second Amendment to apply to the states. 

Facts of the Case

After the St. Valentine's Day Massacre, the National Firearms Act of 1934 (NFA) was passed. An Arkansas federal district court charged Jack Miller and Frank Layton with violating the NFA when they transported a sawed-off double-barrel 12-gauge shotgun in interstate commerce. Miller and Layton argued that the NFA violated their Second Amendment right to keep and bear arms. The district court agreed and dismissed the case.

Question

Does the Second Amendment protect an individual's right to keep and bear a sawed-off double-barrel shotgun?

Opinions

Majority (8*): "The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."

Minority (0)

*Justice William O. Douglas did not participate in the case. 

Case Commentary

The decision in United States v. Miller has become contentious in modern debates over gun control legislation. Through its ruling, SCOTUS seemed to reaffirm that the intended purpose of the Second Amendment's right to bear arms exists to preserve a well regulated militia. 

Facts of the Case

In a rather artificially generated lawsuit, Robert Levy at the Cato Institute selected six plaintiffs for a claim that would test the individual right to bear arms under the Second Amendment. The group included a range of age groups, an even balance in genders, and two African-Americans. The named plaintiff, Dick Heller, was a licensed special police officer for the District of Columbia who was not allowed to have a gun at home despite being able to use it at work. Like the other plaintiffs, he lived in an area with high drug use and crime activity. The critical difference between Heller and the other plaintiffs was that he had applied for a handgun permit and been refused. This meant that he had standing to sue, whereas the others did not. They dropped out of the case in the early stages.

The District of Columbia had enacted the Firearms Control Regulations Act in 1975, which prohibited individual ownership of handguns in most cases except those possessed by current or former law enforcement officers. The six plaintiffs sought an injunction against the enforcement of this provision, as well as another provision of the law that required any guns to be kept unloaded and disassembled. While their case was dismissed by the federal district court, the D.C. Circuit Court of Appeals reversed the dismissal, finding that Heller had standing. The court defined handguns as arms within the meaning of the Second Amendment and held that the Amendment extends to rights beyond participating in the militia. Keeping guns unloaded and disassembled also was impermissible because it hindered individuals in exercising the right of self-defense.

Question

Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms kept in the home to be kept nonfunctional violate the Second Amendment?

Opinions

Majority (5): Emphatically ruling that the Second Amendment protects the individual right to possess arms and use them for self-defense inside the home, Scalia found that it extended well beyond the traditional meaning of militias. He analyzed the structure of the document, especially the prefatory clause, as well as its history. Scalia pointed out that state constitutions crafted similar provisions near the same time as the Second Amendment, and the Amendment's drafting history includes several proposals from the states that would have expressly protected the individual right to bear arms. He took readers on a lengthy tour of interpretations of the Second Amendment through the following centuries, finding that both the legal academy and legislators agreed with his perspective. 

Scalia acknowledged that there might be some limitations on the type of weapon that could fit within this right, referring to U.S. v. Miller as a proper restriction to weapons that are in common use for lawful purposes. (Only these types of weapons could have been used by the militia.) States also can prevent convicted criminals from carrying weapons, limit their use in school zones or government buildings, and forbid the carrying of concealed weapons. Thus, his opinion was not an unqualified endorsement of the right to bear arms for any reason in any manner at any location. Dangerous and unusual weapons are not constitutionally protected.

Scalia declined to identify the standard of review that he applied, or guide courts on what standard to apply for future Second Amendment decisions. This was in part because he felt that the District of Columbia law failed any standard of review for measures curtailing individual rights, especially since the right of self-defense in one's home is central to national tradition. Scalia's decision thus rested on two different grounds for finding the law unconstitutional: interfering with the right to bear commonly used weapons and interfering with the right of self-defense and defense of one's family and property. The licensing requirement was not unconstitutional, but individuals must be allowed to register guns and receive licenses for home use.

Minority (4):  Reviewing some of the same historical evidence as Scalia, Stevens felt that the Second Amendment would have expressly protected the individual right to bear arms if such was the drafters' intention. By contrast, he placed great weight on the prefatory clause in finding that its protections extended only to the militia. Stevens also pointed out that the state constitutions mentioned the right of self-defense as a justification of the right to bear arms, which suggested that this rationale was not present in the Second Amendment, since it did not mention self-defense. He criticized the majority for departing from settled Court jurisprudence on this issue and noted that many decisions in the lower courts would need to be repudiated or overturned.

Even if the majority was correct in finding that the Second Amendment protected an individual right to bear arms, according to Breyer, the challenged laws still would be constitutional. Gun control laws serve a compelling government interest in public safety, and historically cities and states were able to regulate the use of weapons by civilians. Citing national statistics on gun-related violence, Breyer felt that the majority went too far in finding that residents of blighted neighborhoods had a constitutional right to keep loaded guns in their homes. He argued that the individual interest in the right of self-defense was outweighed by the state interest in preventing crime. Also, Breyer pointed out that classifying weapons as common or unconventional risked creating a slippery slope if broader types of dangerous weapons were legalized by legislatures.

Case Commentary

This decision may have less dramatic an impact than some observers initially expected. It did lead to a surge of litigation in lower federal courts regarding gun control laws. Most of these lawsuits have failed, however, and states still have the right to prevent criminals, illegal immigrants, drug addicts, and other high-risk groups from gaining access to weapons. Contrary to Breyer's fears, the group of weapons that is deemed constitutional for individual use has not expanded to machine guns or other types of unconventional weapons. School zones and areas around federal buildings still can be subject to restrictions, and concealed carry laws as well as laws against straw purchases generally were left intact. 

The heavily historical nature of the opinion does make it a useful window onto the reasoning of the current Justices, which can help others in crafting constitutional challenges.

Facts of the Case

Four Chicago residents, including Otis McDonald, challenged a Chicago ordinance that required the registration of firearms while accepting no registrations that post-dated the implementation of a handgun ban in 1982. The law also required the re-registration of handguns with the payment of an annual fee and prevented any individual from registering a gun again once its registration had lapsed. McDonald, who was 76 years old and a former maintenance engineer, pointed out that his neighborhood in Morgan Park was prone to gang-related violence as a result of drug trafficking. He had been the victim of five burglaries, so he felt that he needed a handgun for the purposes of self-defense. (He owned shotguns for hunting but did not want to use those.)

Building on the Supreme Court decision in District of Columbia v. Heller (2008), McDonald sought to expand the Second Amendment's application to state and local governments through selective incorporation. (Since Heller had unfolded in the District of Columbia, the Bill of Rights was directly applicable to this federally controlled area.) This meant that the right to bear arms must be deemed fundamental because of its deeply rooted presence in national history and traditions or its inherent role in protecting liberty. McDonald also offered the novel argument that the Fourteenth Amendment's Privileges or Immunities Clause should be allowed to apply the Bill of Rights to state and local governments, overturning the Court's 1873 decision in the Slaughter-House Case. This doctrinal shift would have allowed the Bill of Rights to be applied directly to non-federal governments without the need for incorporation. It could have had an impact on other parts of the Bill of Rights to which incorporation had not yet been applied.

Question

Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges and Immunities or Due Process clauses and thereby made applicable to the states?

Opinions

Majority (5): Declining to address the Privileges or Immunities Clause component of McDonald's argument, Alito applied the incorporation doctrine to find that state and local governments are subject to the Second Amendment through the Due Process Clause of the Fourteenth Amendment. He reminded readers that the right to bear arms is not unqualified and that the restrictions recognized in the Heller decision remain intact, such as bans on straw purchases, restrictions on use in school zone and federal buildings, and bans on use by convicted criminals or the mentally ill.

Minority (4):  These dissenters felt that there was no fundamental right to individual self-defense guaranteed by the Second Amendment. (Breyer had written a similar dissent in Heller.)

Case Commentary

Despite the holding that the Second Amendment applies to state and local governments, this decision emphasizes that provisions of the Bill of Rights should be incorporated only if they are part of the national tradition or fundamental to historical visions of liberty. Whether this language will serve as a practical limit on incorporation is not certain.

As with Heller, the Court did not state the standard of review that was appropriate for Second Amendment cases. Like that earlier decision, it spawned a plethora of cases challenging various gun laws, since the highly case-specific nature of the jurisprudence in this area means that each type of law must be analyzed separately.