Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

The Second Amendment & The U.S. Supreme Court

Thursday, May 4, 2000

By by Stefan B. Tahmassebi

A well regulated Militia,
being necessary to the security of a free State,
the right of the people to keep and bear Arms,
shall not be infringed.


By Stefan B. Tahmassebi

Despite anti-gunners' claims that the Second Amendment is a "collective right," the U.S. Supreme Court has recognized it as an individual right in several landmark cases.

Gun prohibitionists often claim that the United States Supreme Court has held that the Second Amendment does not guarantee an individual right to keep and bear arms, but offers only a "collective right" for the organized military forces of the states to have governmentally owned arms. This "Collective Rights" approach is a newcomer to theories of constitutional law and made its first appearance only in the Twentieth Century. Not only does the "Collective Rights" approach run counter to overwhelming textual and historical evidence, but the Supreme Court has never held such a theory applicable to the Second Amendment.

Dred Scott v. Sandford was the first case in which the Supreme Court mentioned the right to keep and bear arms. The issue before this pre-Civil War and pre-emancipation court was whether blacks were "citizens." The court stated that if blacks were citizens, they would have the same constitutional protections afforded to white citizens, which included the right to keep and bear arms.

"It would give to persons of the negro race . . . the right to enter every other State whenever they pleased, . . . and it would give them the full liberty of speech . . . ; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." The court specifically placed the right to keep and bear arms in the same category as the other fundamental individual rights that are protected from governmental infringement by the Bill of Rights: "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."

Nowhere in the opinion does the court suggest that the right to keep and bear arms differs from other fundamental rights and protects only the state government's organized military. Clearly, the court considered the right to keep and bear arms as a fundamental individual right of every "citizen."

United States v. Cruikshank, a post-Civil War and post-emancipation case, arose out of the disarmament and murder of freed blacks in Louisiana (the "Colfax Massacre"). Klansmen were subsequently charged by the federal prosecutor with a conspiracy to prevent blacks from exercising their civil rights, including the right of peaceful assembly and the right to keep and bear arms. The court recognized that the right to peacefully assemble and the right of the people to keep and bear arms were natural rights which even preexisted the Constitution.

The court stated, however, that the First and Second Amendment rights were protections against the federal government only, and did not restrict state government action. The court held that because these fundamental rights existed independently of the Constitution, and because the First and Second Amendments guaranteed only that these rights shall not be infringed by the federal Congress, the federal government had no power to punish a violation of these rights by the Klansmen, who were private individuals. Although the Second Amendment protected a citizen from having his right to keep and bear arms violated by the federal government, the Second Amendment did not protect a citizen from the acts of other private persons.

Clearly, the court considered the right to keep and bear arms (and the right to peaceably assemble) as a fundamental individual civil right of each citizen, which the federal government could not infringe. The court never even suggested that the Second Amendment guaranteed only a state's right to maintain militias rather than an individual citizen's right to keep and bear arms.

Presser v. Illinois involved an Illinois statute which did not prohibit the possession of arms, but merely prohibited "bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law . . . ." Presser was indicted for parading a private military unit of 400 armed men through the streets of Chicago without a license. The court concluded that the Illinois statute did not infringe the Second Amendment since the statute did not prohibit the keeping and bearing of arms but rather prohibited the forming of private military organizations and the performance of military exercises in town by groups of armed men without a license to do so. The court found that such prohibitions simply "do not infringe the right of the people to keep and bear arms."

The Supreme Court seemed to affirm the holding in Cruikshank that the Second Amendment protected individuals only against action by the federal government. However, in the very next paragraph, the court suggests that state governments cannot forbid individuals to keep and bear arms. After stating that "all citizens capable of bearing arms" constitute the "militia," the Court held that the "States cannot . . . prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government."

In Miller v. Texas, the defendant challenged a Texas statute on the bearing of pistols as violative of the Second, Fourth, and Fourteenth Amendments. The problem for Miller was that he failed to timely raise these defenses in the state trial and appellate courts, raising these issues for the first time in the U.S. Supreme Court. While the court held that the Second and Fourth Amendment (prohibiting warrantless searches), of themselves, did not limit state action (as opposed to federal action), the court did not address the defendant's claim that these constitutional protections were made effective against state government action by the Fourteenth Amendment, because Miller did not raise these issues in a timely manner. The Court, thus, left open the possibility that these constitutional rights were made effective against state governments by the Fourteenth Amendment. Lastly, it should be noted that in this case, as in the other Supreme Court cases, the defendant was not a member of the Armed Forces, and yet the Supreme Court did not dismiss Miller's claim on that ground; thus, Miller, as a private citizen, did enjoy individual Second Amendment protection, even if he was not enrolled in the National Guard or Armed Forces.

Robertson v. Baldwin did not involve a Second Amendment claim, but in discussing the 13th Amendment, the Court again recognized the Second Amendment as a "fundamental" individual right of citizens; which, like the other fundamental rights, is not absolute. "The law is perfectly well settled that the first 10 amendments to the Constitution, commonly known as the 'Bill of Rights', were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. . ." . Thus, the freedom of speech and of the press (Article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Article 2) is not infringed by laws prohibiting the carrying of concealed weapons . . . .

The reference to state laws that prohibited the carrying of concealed weapons by individuals suggests that the Supreme Court

TRENDING NOW
H.R. 8 Markup: Liberal Democrats Markup Gun Control Legislation

News  

Friday, February 15, 2019

H.R. 8 Markup: Liberal Democrats Markup Gun Control Legislation

The Nancy Pelosi Speaker Era 2.0 continued on Wednesday, Feb. 13, with a markup of H.R 8, the “universal” background checks bill, in the House Judiciary Committee. Following on the heels of last week’s Judiciary Committee hearing, the same committee held a markup on ...

Turning a Right into a Privilege: HR 1112 Gives Feds Unfettered Power to Block Gun Sales

News  

Friday, February 15, 2019

Turning a Right into a Privilege: HR 1112 Gives Feds Unfettered Power to Block Gun Sales

H.R. 8, which would criminalize the private transfer of firearms, has received significant attention from the gun rights community. However, H.R. 1112, which purportedly targets the inappropriately-named “Charleston loophole,” is just as insidious an attack ...

Another Study Blames Guns, Excludes Reality

News  

Friday, February 15, 2019

Another Study Blames Guns, Excludes Reality

A study published in Preventative Medicine by Yu Lu and Jeff R. Temple concludes that “the majority of mental health symptoms examined were not related to gun violence. Instead, access to firearms was the primary culprit.”

Polls: No Lasting Support for Gun Control One Year After Parkland

News  

Friday, February 15, 2019

Polls: No Lasting Support for Gun Control One Year After Parkland

Thursday marked the one year anniversary of the terrible crimes at Marjory Stoneman Douglas High School in Parkland, FL. It was a somber occasion, but some media outlets couldn’t contain their glee this week that ...

Indiana: Self-Defense Bill Passes House, On To Senate

Tuesday, February 12, 2019

Indiana: Self-Defense Bill Passes House, On To Senate

On February 11th, the Indiana state House of Representatives voted 80-13 to pass House Bill 1284 to enhance protections afforded to law-abiding citizens acting in defense of themselves and others.  HB 1284 will now go to the ...

Washington: Magazine Ban & Firearm Seizure Bills Pass Committee

Friday, February 1, 2019

Washington: Magazine Ban & Firearm Seizure Bills Pass Committee

During the executive session on February 1st, the Washington state House Committee on Civil Rights & Judiciary voted to pass House Bill 1068 to ban many standard capacity ammunition magazines and House Bill 1225 for firearm ...

Illinois: Gun Tax Legislation Introduced

Tuesday, February 12, 2019

Illinois: Gun Tax Legislation Introduced

On February 11th, legislation was introduced (HB 2331) in the Illinois House that would impose a new gun tax on all firearms and firearm components sold in Illinois. 

House to Move Forward with Ineffective Gun Control Proposals

News  

Friday, February 8, 2019

House to Move Forward with Ineffective Gun Control Proposals

On Wednesday, gun owners got to see what a Nancy Pelosi controlled Congress looks like as the House Judiciary Committee held its first gun control hearing in nearly a decade. Things went as one would ...

Congress to Take Up Gun Control Next Week

News  

Friday, February 1, 2019

Congress to Take Up Gun Control Next Week

On January 8, two bills were introduced in Congress to impose so-called "universal" background checks. The bills, H.R. 8 and S. 42, are being misleadingly described as simply requiring background checks on all sales of firearms, but this is ...

Arizona state flag

Friday, February 15, 2019

Arizona: Committee to Hear School Pick-up/Drop-off Bill

On Wednesday, February 20th at 9:00AM, the Arizona state House Committee on Public Safety will be hearing House Bill 2693 to improve the ability of law-abiding citizens to defend themselves and their families by reducing arbitrary ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.