U.S.Supreme Court Rulings on the Second Amendment

United States v. Cruikshank (1875)

“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.”

United States v. Miller (1939)

The Second Amendment “protects arms that had a reasonable relationship to the preservation or efficiency of a well-regulated militia.”

“In the absence of any evidence tending to show that possession of a shotgun having a barrel of less than eighteen inches at this time has some reasonable relationship to any preservation 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 it could contribute to the common defense.”

Gun rights advocates cite Miller, because they claim that the Court ruled that the Second Amendment protected the right to keep arms that are part of “ordinary military equipment.” Gun control advocates cite Miller, because they claim the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon’s suitability for the “common defense.”

District of Columbia v. Heller (2008)

The Court ruled that the Second Amendment “codified a pre-existing right” and that it “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.” The Court also ruled, however, that “the right is not unlimited. It is not a right to keep and bear any weapon whatsoever in any manner whatsoever and for whatever purposes.” The Court clarified that many longstanding prohibitions and restrictions on firearms possession listed by the Court are consistent with the Second Amendment.

McDonald v. Chicago (2010)

The Court ruled that the Second Amendment limits state and local governments to the same extent it limits the federal government.

Presser v. Illinois (1886)

Herman Presser organized his own militia and led a parade group of 400 men. The decision on Presser upheld the state’s authority to regulate the militia and found that citizens have no right to create their own militias or to own weapons for semi-military purposes. The Court also said: “A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded to them as a reserve military force.”

Miller v. Texas (1894)

The ruling was that the Second Amendment does not apply to a state law, such as the Texas law on unlicensed guns. Franklin Miller had shot a policeman with an unlicensed handgun.

Robertson v. Baldwin (1897)

The Court ruled that laws regulating concealed arms did not infringe upon the right to keep and bear arms, and thus was not a violation of the Second Amendment.

U.S. Court of Appeals Decisions Following District of Columbia v. Heller

Of the first eleven U.S. Court of Appeals’ decisions on firearms following Heller, eight of them upheld a restriction on firearms ownership and possession. Of the other three, the most significant declared an Illinois’ ban on the concealed carrying of firearms to be unconstitutional. (Moore v. Madigan – 2012) However, in U.S. v. Skoien (2009), the Seventh Circuit Court, by a vote of 10 to 1, reinstated Skoien’s conviction, citing the strong relationship between the law in question and the government’s objective. Skoien was sentenced to two years in prison for the gun violation and likely will be subject to a lifetime ban on gun ownership.

In scissoring “a well-regulated militia” out of the Second Amendment, the Heller decision ended the long history in which the U.S. Supreme Court has never ruled that the Second Amendment is based on a “pre-existing right” and/or is unconnected to preservation of a militia.

 

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Some Distressing Statistics on the Firearms Front

Justifiable homicides by civilians using firearms in US, 2006-10 – FBI (not including Florida).

In states that passed Stand Your Ground in the period; 2006-2010, justifiable homicides went up significantly in every year, starting in 2006. The nearly 160 in 2010 virtually doubled the 80 or so in 2005 (the FBI graph does not give exact numbers). Among the states without Stand Your Ground, the numbers actually went down from what they were in 2001, 2002 and 2003, which were all over 80; in contrast, from 2006 through 2010, the total never reached 80 — the low was about 60 in 2008, in contrast to about 150 in the Stand Your Ground states. [1]

A similar graph done by the Florida Department of Law Enforcement for the years 2000-2011 — Stand Your Ground was passed in April 2006 — found that there were about 12 cases of justifiable homicide in the years 2000, 2001, 2002 and 2006. The numbers were about 15 in 2003 and 2005, with 2004 registering about 8; however, in all years 2007 through 2011, the number never dropped below 36 and spiked to about 46 in 2011. [2] 

Trend Lines of Firearms and Population Growth

In the United States in 1994, there were about 200 million firearms for a population of roughly 260 million. Since the rate of firearms growth  is steeper than the rate of population growth, by about 2016 the growth lines will intersect and by about 2022 there will be many more firearms than people. [3]

The NRA, Stolen Guns and Expanding Gun Rights

In response to calls by New York’s Mayor Bloomberg and other gun control advocates to stop straw buyer sales and close gun show loopholes, the NRA reached deep into its bag of tricky arguments to claim that such actions would make little difference, since most guns used to commit crimes are stolen — in fact, some 500,000 guns are stolen every year. [4] Yet, the NRA has not supported laws requiring gun owners to report when their weapons go missing. The NRA also does not support laws that seek to limit the sheer number of guns to be lost or stolen, as it fights hard to defeat proposed laws to limit gun sales to one customer per month.

The NRA can take some credit for the expansion of gun rights in very recent times. Oklahoma became the twenty-fifth state to allow people to carry guns openly and Virginia overturned its one-gun-a-month rule. USA Today reported in March 2012 that  a dozen states were considering  laws  that would eliminate requirements that residents obtain permits to carry concealed weapons. [5]

Footnotes

[1] “Up in Gunsmoke,” Mother Jones, July/August 2012.

[2] Ibid.

[3] Mark Follman, “One Nation Under the Gun,” Mother Jones, November/December 2012.

[4] Jarrett Murphy, “Fear: The NRA’s Real Firepower,” The Nation, September 10, 2012.

[5] Ibid.