Supreme Court & the Right to Keep and Bear Arms

Some who don't respect the clear words of the Constitution claim that the Supreme Court has never spoken about the individual right to keep and bear arms — and never endorsed the concept of an individual right to keep and bear arms. This is untrue. The Supreme Court has directly supported this right on several occasions.

This decision concerned whether or not African-Americans could be considered United States citizens and capable of bringing suit in federal courts. The Court relied upon historic discrimination that denied black Americans (slaves) rights of citizens. The Court's most conclusive example (their terms) was New Hampshire's 1815 laws that denied militia participation to black Americans. About this denial, the court said:

“Nothing could more strongly mark the entire repudiation of the African race.” (P. 415)

Were blacks to be considered citizens — with all the rights a citizen should expect — the Court enumerated what those right would include:

“It would give to persons of the Negro race, ... the right to enter every other State whenever they pleased, ... 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.” (P. 417) [emphasis added]

The Court maintained that the federal government had no power to enact Territorial laws infringing upon individual rights:

“... 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.... The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them.” [emphasis added]

This decision concerns fourteenth amendment enforcement of individual rights in the “pre-incorporation era” of the late 19th Century. The Court refers to First Amendment right of assembly (Pp. 551-52) and Second Amendment right to arms (P. 553) as pre-existing rights which pre-dated and do not rely on the Constitution for its existence.

Cruikshank was a Louisiana KKK member who busied himself by denying blacks their rights to assemble, bear arms, and life, having killed one or more of them. This was during the time that the court was attempting to limit the scope of the 14th amendment. The Court ruled that the federal government had no role in protecting the rights (second amendment or otherwise) of individuals from abuse by other individuals, and that those individuals should look to the State to make them whole. This, despite the fact that the Freedmans Bureau Act and the14th Amendment were written in part to protect the rights of newly freed slaves to keep and bear arms to defend themselves from attacks by racist whites. (See Senator Jacob Howard of Michigan, Congressional Globe, 1866.)

“The government of the United States, although it is, within the scope of its powers, supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States.”

“The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.” [emphasis added]

Presser was a man who wanted to parade in the City of Chicago with other armed men. (Presser carried a sword.) This case, again, occurred during a time when the U.S. Supreme Court was attempting to limit the scope of the 14th Amendment.

“The provision in the Second Amendment to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ is a limitation only on the power of Congress and the national government, and not of the States. But in 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.” [emphasis added]

The Second Amendment was — and is — a bar against federal infringement of the right to keep and bear arms. The Second Amendment is also a shield that protects our inalienable rights from abuses by the States.

Miller was a bootlegger who in was found to be in possession of a shotgun whose barrel length was less than 18 inches in length. The National Firearms Act of 1934 required that both newly transferred machine guns and short-barreled shotguns be taxed at the rate of $200, with which Miller did not comply. Miller won his case in lower federal court — on Second Amendment grounds — and the government appealed to the Supreme Court. Too poor to hire an attorney, Miller was unrepresented before the Supreme Court, and the court heard arguments only from government prosecuting attorneys.

Federal attorneys neglected to inform the Court that short-barreled shotguns were used in World War 1. (They were also used in WW2, Korea, Vietnam, and operations in Central America and could very well be considered a protected "Militia weapon.”) A misinformed bench ruled thusly:

“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.”

Despite the lack of candor by the government attorneys in not giving the court notice that the weapons were indeed used by American forces, the Court then went on to paint a respectable picture of the traditional armed American Citizen:

“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that 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.”

It appears from this statement that the Second amendment is just as technology-neutral as is the First Amendment. Printing presses and quill pens are just as protected as fax machines and modems. Likewise, the Framers were well aware that arms technology would improve as it had before and during the Revolutionary war. From spears, to swords, to arrows, to muskets, to rifles — to cartridge guns, which were on the drawing boards at the time awaiting technology to catch up. The Framers wanted an armed citizenry to both assist in the protection of the country, and to defend against some future tyrannical government. (See Federalist #28, 29, 46.) A state-of-the-art Kentucky rifle in the 18th Century — an M16, M1A, or FN-FAL today.

“The Preamble declares that the Constitution is ordained and established by 'the People of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law ... abridging ... the right of the people peaceably to assemble') (emphasis added); Art. I, § 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the People of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

Though not directly referencing the Second Amendment, Staples can prove helpful for writers and other gun rights activists:

“In contrast to the selling of dangerous drugs...or the possession of hand grenades..., private ownership of guns in this country has enjoyed a long tradition of being entirely lawful conduct. Here, the Government essentially suggests that we should interpret the section under the altogether different assumption that ‘one would hardly be surprised to learn that owning a gun is not an innocent act.’ That proposition is simply not supported by common experience. Guns in general are not ‘deleterious devices or products or obnoxious waste materials.’ As suggested above, despite their potential for harm, guns generally can be owned in perfect innocence…[and] traditionally have been widely accepted as lawful possessions.”

UNITED STATES of America v. Timothy Joe EMERSON United States District Court, N.D. Texas, San Angelo Division. April 7, 1999.

“A textual analysis of the Second Amendment, if the amendment truly meant what collective rights advocates propose, then the text would read '[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed.' However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. Id. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized. Id. at 201. supports an individual right to bear arms. In Patton v US (1930) the Court's construction of ‘the people’ as used in the Second Amendment supports a holding that the right to keep and bear arms is a personal right retained by the people, as opposed to a collective right held by the States. Thus, a textual analysis of the Second Amendment clearly declares a substantive right to bear arms recognized in the people of the United States.”

For further information about U.S. v. Emerson, including more detailed excerpts, full text and many articles and links, go here: http://www.KeepAndBearArms.com/Emerson/.

“The Act exceeds Congress’ Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce.”

Saying that the Second Amendment doesn’t apply to modern small arms is like saying the First Amendment doesn’t apply to laser printers, email and fax machines. Shall we say that you’re not allowed to say whatever you please through any medium of modern technology? Shall we allow the government to censor your letters that are printed on the latest computer printer? Shall we register reporters — and require a license to print a newsletter?

The Founding Fathers of this nation were very clear about the meaning of the Second Amendment. And the Supreme Court has backed them up — repeatedly.

Does Lopez mean that one may manufacture one's own machine gun, as long as one doesn't take it out of state? Does one have to register it and pay $200?

U.S. v. Rock Island Armory.

"Since its passage in 1934, the registration, taxation, and other requirements of the National Firearms Act ("NFA") have been upheld by the courts under the power of Congress to raise revenue. (Footnote 5) However, 18 U.S.C. sec. 922(o), which became effective on May 19, 1986, prohibits possession of machineguns, and thereby repealed or rendered unconstitutional the portions of the National Firearms Act which provided for the raising of revenue from the making, possession, and transfer of machineguns made after such date. As the government conceded at oral argument, the United States refuses to register or accept tax payments for the making or transfer of machineguns made after 1986. (Footnote 6) Thus, sec. 922(o), as applied to machineguns made after May 19, 1986, left the registration and other requirements of the National Firearms Act without any constitutional basis."

Note: The SCOTUS did not take up the Appeal, so it is law only in the District Court where it was heard.

I think of the 20 justices that sit on the 5th Circuit, 11 are Reagan-Bush Sr. and 9 are Carter-Clinton. The Emerson case was heard by a three-judge panel with two being 'conservative' and one being 'liberal'. The court's opinion in Emerson was written mostly by Garwood, a gun-owner and keen historian of the 2nd. I'd like to see Garwood nominated to the SC.

The quote from Cruikshank is better word for word:

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. 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.

Examine this reasoning and note the following:

1 - The Cruikshank Court believed that 'bearing arms for a lawful purpose' was a right.

2 - The Cruikshank Court links that Right to the Second Amendment.

3 - The Cruikshank Court elevates the Right to 'bear arms for a lawful purpose' to that of a Fundamental Right by virture of the statements that "[T]his is not a right granted by the Constitution" and "[N]either is it in any manner dependent upon that instrument for its existence." [This is classic fundamental right language that was used by the SCOTUS years later in Griswold. This is SCOTUS recognizing a natural right that exists with or without the Bill of Rights. That's huge.]

Cruikshank is very, very important case for our side...

If you are talking about Miller, the defendant's/appellants skipped town - their side of the case was never briefed. If you actually read the Gov's comments in Miller, it conceeded that a weapon with military usefulness was covered by the Second Amendment - something you never hear the anti's say.

Had their side been briefed, the Court would have had trouble, since sawed-off shotguns were used to clear trenches in WWI and used in WWII as well.

If you actually read the Gov's comments in Miller, it conceeded that a weapon with military usefulness was covered by the Second Amendment - something you never hear the anti's say.

Exactly. But that didn't stop the nazi's in the California legislature from passing not one but two AW bans that ban the sale of the AR15 both by Model name and by generic appearence. Miller would suggest strongly that the 1994 Federal AW ban is unconstitutional. I don't think the federal ban has been challenged yet.

I'm not optimistic that the courts will protect our RKBA. The Supreme Court didn't repeal the NFA in Miller. Despite all the lip service paid to RKBA as an individual right, the 5th Circuit didn't repeal 18 USC 922(g)(8) in Emerson. Actually, under the Emerson court's socialist definition of a right (i.e., government may infringe upon a right provided it has a "compelling reason"), we have no rights at all. The nanny state's reasons to infringe our rights are always compelling. Very few of our federal judges have ever seen a "gun control" law that they didn't like.

Very few of our federal judges have ever seen a "gun control" law that they didn't like.

That's very true, unfortunately. As good as the Emerson decision was in light of the court's dicta about the RKBA, even that court left open the door for more, not less, gun control since it left intact the restraining order provision, something that is clearly unconstitutional. Many other Federal District Appellate Courts, like the infamous 9th Circuit, have never rendered a decision that was postive for the RKBA. In fact, the 9th Circuit has consistently found against the RKBA and it searches high and low for obscure, mostly unrelated case law, in order to justify complete government control of who gets guns. In blatant cases, like the 1992 Fresno Rod and Gun Club v. Van de Kamp (then AG for California) they purposefully misused Cruikshank to uphold the unconstitutional Roberti-Roos AW ban. The 9th Circuit is composed of neo-nazis.

RE:post 11

One of the members of the USSC in the Miller case, years later, acknowledged that he had in fact used a "trench sweeper" (a sawed off shotgun) in Europe in WWI. During the Miller trial he was very much aware of the utility of short shotguns, yet never disclosed this to the other members of the court. Go figure.

I still don't know why the length of any "arm" makes one whit of difference, since the Constitution makes no such distinction at all. Arms are Arms are Arms.

"The Supreme court didn't repeal the NFA in Miller."

IMHO, there was no repeal because the NFA is a revenue raising measure, and as such in and of it'self Constitutional.

There have been other USSC decisons to the effect that revenue laws cannot be promolgated in order to effect social modification.

A $200. tax in order to posses and to even transfer ownership of a 50 dollar weapon could not be seen any other way.

Machine guns could be bought at the time as surplus arms for a mere few dollars, or brought into the country as war souveniers without any cost.

Once Bush gets 2-3 more conservatives on the bench, the NRA should look for and take cases before them to settle this issue once and for all.

Bush isn't going to get a conservative on the bench before 2003, and then only if he gets 60 conservative Republican senators. But, even if Bush could appoint whom he wished, you might be disappointed by the result. Even Robert Bork, in his book Slouching Toward Gomorrah, says that he's bought the collective right interpretation of the Second Amendment, though he believes that people should be armed as a matter of policy. Nearly all of our appellate courts have issued collective right opinions (see the cases cited in the Government's First Brief in the Emerson Case).You might just find that the legal elite, on either side of the aisle, intends to disarm us peasants by any means possible.

I'm confused as to whether you agree or disagree with me. Certainly the "revenue raising" nature of the NFA was the legal excuse not to declare it unconstitutional. I submit that the Supreme Court upheld NFA because it intended to curtail our Second Amendment rights in 1939. We might find that the Supreme Court intends to curtail our rights by any means possible in future cases.

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