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.