The Supreme Court’s Thirty-five Other Gun Cases: What the Supreme Court Has Said About the Second Amendment

David B. Kopel*

Among legal scholars, it is undisputed that the Supreme Court has said almost nothing about the Second Amendment.[1] This article suggests that the Court has not been so silent as the conventional wisdom suggests. While the meaning of the Supreme Court’s leading Second Amendment case, the 1939 United States v. Miller[2] decision remains hotly disputed, the dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment “right of the people to keep and bear arms” as an individual right, rather than as a right of state governments.

Chief Justice Melville Fuller’s Supreme Court (1888-1910) had the most cases involving the Second Amendment: eight. So far, the Rehnquist Court is in second place, with six. But Supreme Court opinions dealing with the Second Amendment come from almost every period in the Court’s history, and almost all of them assume or are consistent with the proposition that the Second Amendment in an individual right.

Part I of this Article discusses the opinions from the Rehnquist Court. Part II looks at the Burger Court, and Part III at the Warren, Vinson, and Hughes Courts. Part IV groups together the cases from the Taft, Fuller, and Waite Courts, while Part V consolidates the Chase, Taney, and Marshall Courts.

But first, let us quickly summarize what modern legal scholarship says about the Second Amendment, and why the Court’s main Second Amendment decision—United States v. Miller—does not by itself settle the debate.

Dennis Henigan, lead attorney for Handgun Control, Inc., argues that the Supreme Court has said so little about the Second Amendment because the fact that the Second Amendment does not protect the right of ordinary Americans to own a gun is “perhaps the most well-settled point in American law.”[3] Henigan argues that the Second Amendment was meant to restrict the Congressional powers over the militia granted to Congress in Article I of the Constitution—although Henigan does not specify what the restrictions are.[4] One of Henigan’s staff criticizes the large number of American history textbooks which “contradict[] a nearly unanimous line of judicial decisions by suggesting the meaning of the Second Amendment was judicially unsettled.”[5]

Similarly, Carl Bogus argues that the only purpose of the Second Amendment was to protect state’s rights to use their militia to suppress slave insurrections—although Bogus too is vague about exactly how the Second Amendment allegedly restricted Congressional powers.[6] This article refers to the State’s Rights theory of the Second Amendment as the “Henigan/Bogus theory,” in honor of its two major scholarly proponents.[7]

In contrast to the State’s Rights theory is what has become known as the Standard Model.[8] Under the Standard Model, which is the consensus of most modern legal scholarship on the Second Amendment, the Amendment guarantees a right of individual Americans to own and carry guns.[9] This modern Standard Model is similar to the position embraced by every known legal scholar in the nineteenth century who wrote about the Second Amendment: the Amendment guarantees an individual right, but is subject to various reasonable restrictions.[10]

Both the Standard Model and the State’s Right theory claim that Supreme Court precedent, particularly the case of United States v. Miller, supports their position.

Two other scholarly theories about the Second Amendment are interesting, but their theories have little to do with Supreme Court precedent. Garry Wills argues that the Second Amendment has “no real meaning,” and was merely a clever trick that James Madison played on the Anti-Federalists.[11] David Williams argues that the Second Amendment once guaranteed an individual right, but no longer does so because the American people are no longer virtuous and united, and hence are no longer “the people” referred to in the Second Amendment.[12] Neither the Wills Nihilism theory nor the Williams Character Decline theory make claims which depend on the Supreme Court for support, or which could be refuted by Supreme Court decisions.

Like the scholars, the lower federal courts are split on the issue, although their split is the opposite of the scholarly one: most federal courts which have stated a firm position have said that the Second Amendment is not an individual right.[13] The federal courts which follow the academic Standard Model are in the minority, although the ranks of the minority have grown in recent years.[14] The courts on both sides, like the scholars, insist that they are following the Supreme Court.

One approach to untangling the conflict has been to see if the lower federal courts have actually been following Miller. In Can the Simple Cite be Trusted?, Brannon Denning makes a persuasive argument that some lower courts have cited Miller for propositions which cannot reasonably be said to flow from Miller.[15] But part of the problem with deciding whether the courts or the scholars are being faithful to Miller is that Miller is such an opaque opinion.

Miller grew out of a 1938 prosecution of two bootleggers (Jack Miller and Frank Layton) for violating the National Firearms Act by possessing a sawed-off shotgun without having paid the required federal tax. The federal district court dismissed the indictment on the grounds that the National Firearms Act violated the Second Amendment.[16] Freed, Miller and Layton promptly absconded, and thus only the government’s side was heard when the case was argued before the Supreme Court.[17]

Unfortunately, Miller was written by Justice James McReynolds, arguably one of the worst Supreme Court Justices of the twentieth century.[18] The opinion nowhere explicitly says that the Second Amendment does (or does not guarantee) an individual right. The key paragraph of the opinion is this:

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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.[19]

This paragraph can plausibly be read to support either the Standard Model or the State’s Rights theory. By the State’s Right theory, the possession of a gun by any individual has no constitutional protection; the Second Amendment only applies to persons actively on duty in official state militias.

In contrast, the Standard Model reads the case as adopting the “civilized warfare” test of nineteenth century state Supreme Court cases: individuals have a right to own arms, but only the type of arms that are useful for militia service; for example, ownership of rifles is protected, but not ownership of Bowie knives (since Bowie knives were allegedly useful only for fights and brawls).[20] The case cited by the Miller Court, Aymette v. State[21], is plainly in the Standard Model, since it interprets the Tennessee Constitution’s right to arms to protect an individual right to own firearms, but only firearms suitable for militia use; in dicta, Aymette states that the Second Amendment has the same meaning.[22]

While scholars can contend for different meanings, it is true that, as a matter of pure linguistics, the Miller decision does not foreclose either the Standard Model or the State’s Rights theory.

And what is one to make of the opinion’s penultimate paragraph, stating, “In the margin some of the more important opinions and comments by writers are cited.”[23] In the attached footnote, the opinion cites two prior U.S. Supreme Court opinions and six state court opinions, all of which treat the Second Amendment or its state analogue as an individual right, even as the opinions uphold particular gun controls.[24] The footnote likewise cites treatises by Justice Joseph Story and Thomas Cooley explicating the Second Amendment as an individual right.[25] But the same Miller footnote also cites a Kansas Supreme Court decision which is directly contrary; that case holds that the right to arms in Kansas belongs only to the state government, and in dicta makes the same claim about the Second Amendment.[26]

The Miller footnote begins with the phrase “Concerning the militia—” but several of the cases cited have nothing to do with the militia. For example, Robertson v. Baldwin (discussed infra) simply offers dicta that laws which forbid the carrying of concealed weapons by individuals do not violate the Second Amendment.[27]

If Miller were the only source of information about the Second Amendment, the individual right vs. government right argument might be impossible to resolve conclusively. Fortunately, the Supreme Court has addressed the Second Amendment in thirty-four other cases—although most of these cases appear to have escaped the attention of commentators on both sides of the issue. This article ends the bipartisan scholarly neglect of the Supreme Court’s writings on the Second Amendment.[28]

The neglected cases are not, of course, directly about the Second Amendment. Rather, they are about other issues, and the Second Amendment appears as part of an argument intended to make a point about something else.[29] Nevertheless, all the dicta may be revealing. If Henigan and Bogus are correct, then the dicta should treat the Second Amendment as a right which belongs to state governments, not to American citizens. And if the Standard Model is correct, then the Amendment should be treated as an individual right. Moreover, the line between dicta and ratio decendi is rarely firm,[30] and one day’s dicta may become another day’s holding.[31]

C.S. Lewis observed that proofs (or disproofs) of Christianity found in apologetic documents are sometimes less convincing than offhand remarks made in anthropology textbooks, or in other sources where Christianity is only treated incidentally. The Supreme Court cases in which the Supreme Court mentions the Second Amendment only in passing are similarly illuminating.[32]

Before commencing with case-by-case analysis, let me present a chart which summarizes the various cases. The columns in chart are self-explanatory, but I will explain two of them anyway. A “yes” answer in the “Supportive of individual right in 2d Amendment?” column means only that the particular case provides support for the individual rights theory; although the part of the case addressing the Second Amendment might make sense only if the Second Amendment is considered an individual right, the case will not directly state that proposition. If the case is labeled “ambiguous,” then the language of the case is consistent with both the Standard Model and with State’s Rights.

The next column asks, “Main clause of 2d A. quoted without introductory clause?” The National Rifle Association and similar groups are frequently criticized for quoting the main clause of the Second Amendment (“the right of the people to keep and bear Arms, shall not be infringed”) without quoting the introductory clause (“A well-regulated Militia, being necessary to the security of a free State”).[33] The critics argue that the introductory, militia, clause controls the meaning of the main, right to arms, clause. They contend that to omit the introductory clause is to distort completely the Second Amendment’s meaning. (And if, as these critics argue, the Second Amendment grants a right to state governments rather than to individuals, then omission of the introductory clause is indeed quite misleading.) On the other hand, if the Second Amendment is about a right of people (the main clause), and the introductory clause is useful only to resolve gray areas (such as what kind of arms people can own), then it is legitimate sometimes to quote the main clause only. As the chart shows, the Supreme Court has quoted the main clause alone much more often than the Supreme Court has quoted both clauses together.

This Supreme Court quoting pattern is consistent with the theory Eugene Volokh’s article, The Commonplace Second Amendment, which argues that the Second Amendment follows a common pattern of constitutional drafting from the Early Republic: there is a “purpose clause,” followed by a main clause.[34] For example, Rhode Island’s freedom of the press provision declared: “The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty.”[35] This provision requires judges to protect every person’s right to “publish sentiments on any subject”—even when the sentiments are not “essential to the security of freedom in a state,” or when they are detrimental to freedom or security.

Similarly, the New Hampshire Constitution declared: “Economy being a most essential virtue in all states, especially in a young one; no pension shall be granted, but in consideration of actual services, and such pensions ought to be granted with great caution, by the legislature, and never for more than one year at a time.”[36] This provision makes all pensions of longer than one year at a time void—even if the state is no longer “a young one” and no longer in need of economy. Volokh supplies dozens of similar examples from state constitutions.[37]

Of the twenty-nine U.S. Supreme Court opinions (including Miller) which have quoted the Second Amendment, twenty-three contain only a partial quote. This quoting pattern suggests that, generally speaking, Supreme Court justices have not considered the “purpose clause” at the beginning of the Second Amendment to be essential to the meaning of the main clause.

Case name and year.	Main issue in case	Opinion by	Type of opinion	Supportive of individual right in 2d Amendment?	Main clause of 2d A. quoted without introductory clause?	Page of this article
Spencer v. Kemna. 1998	Article III case or controversy.	Stevens	Dissent from denial of cert.	Yes, but could possibly be read as referring to rights under state constitutions	No quote.	16
Muscarello v. U.S. 1998	Fed stat. interp.	Ginsburg	Dissent	Yes.	Partial quote.	20
Printz v. U.S. 1997	Federalism	Thomas	Concur	Says that Miller did not decide the issue. Thomas appears to support individual right.	Full quote.	23
Albright v. Oliver. 1994	14^th A. and § 1983	Stevens	Dissent	Yes.	Partial quote.	27
Planned Parenthood v. Casey. 1992.	14^th A.	O’Connor	Majority	Yes.	Partial quote.	29
U.S. v. Verdugo-Urquidez. 1990.	4^th A. applied to foreign national.	Rehnquist	Majority	Yes.	Partial quote.	30
Lewis v. U.S. 1980.	Statutory interp. of Gun Control Act of 1968	Blackmun	Majority	Ambiguous, but probably not. If an individual right, less fundamental than some others.	Full quote.	33
Moore v. East Cleveland. 1976.	14^th A.	Powell	Plurality	Yes. (But contrary opinion expressed by Justice Powell after retirement.)	Partial quote.	37
“ “	“ “	White	Dissent.	Yes.	Partial quote.	38
Adams v. Williams. 1972	4^th A.	Douglas	Dissent	No.	Full quote.	41
Roe v. Wade. 1973	14^th A.	Stewart	Concur	Yes.	Partial quote.	42
Laird v. Tatum. 1972.	Justiciability	Douglas	Dissent	Ambiguous.	Partial quote.	44
Burton v. Sills. 1969.	Challenge to state gun licensing law	Per curiam	Summary affirm.	Ambiguous.	No quote.	45
Duncan v. Louisiana. 1968.	Incorporation of 6^th Amendment.	Black	Concur	Yes.	Partial quote.	47
Malloy v. Hogan. 1964.	Incorporation of 5^th Amend.	Brennan	Majority	Yes.	No quote.	48
Konigsberg v. State Bar. 1961.	1^st Amendment	Harlan	Majority	Yes.	Partial quote.	49
Poe v. Ullman. 1961.	14^th Amendment	Harlan	Dissent	Yes	Partial quote.	50
“ “	“ “	Douglas	Dissent	Yes, but implicitly abandoned in Adams.	No quote.	52
Knapp v. Schweitzer. 1958.	Incorp. of 5^th Amendment	Frankfurter	Majority	Yes	Partial quote.	52
Johnson v. Eisentrager. 1950.	5^th A. applied to trial of enemy soldier.	Jackson	Majority	Yes	Partial quote.	53
Adamson v. Calif. 1947.	Incorp. of 5^th Amendment	Black	Dissent	Yes	Partial quote.	57
Hamilton v. Regents. 1935.	Conscientious objector.	Butler	Majority	No, but not necessarily inconsistent with an individual right.	No quote.	60
U.S. v. Schwimmer. 1929.	Immigration laws	Butler	Majority	Ambiguous	Full quote.	63
Stearns v. Wood. 1915.	Article III case or controversy.	McReynolds	Majority	Ambiguous, since court refuses to hear any of plaintiff’s claims	No quote.	64
Twining v. N.J. 1908.	Incorp. of 5^th A self-incrim.	Moody	Majority	Yes.	Partial quote	65
Trono v. U.S. 1905	5^th A. in the Philippines.	Peckham	Majority	Yes.	Partial quote.	66
Kepner v. U.S. 1904.	“ “	Day	Majority	Yes. Same as Trono.	Partial quote.	66
Maxwell v. Dow. 1899.	Incorp. of 5^th A. jury trial	Peckham	Majority	Yes.	Partial quote.	66
Robertson v. Baldwin. 1897.	13^th Amend.	Brown	Majority	Yes.	Partial quote.	68
Brown v. Walker. 1896.	5^th Amend.	Field.	Dissent	Yes.	Partial quote.	68
Miller v. Texas. 1894.	14^th Amendment	Brown	Majority	Yes.	Partial quote.	70
Logan v. U.S. 1892.	Cong. Power from 14^th A.	Gray	Majority	Yes.	Partial quote.	73
Presser v. Illinois. 1886.	2d A.	Woods	Majority	Yes.	Full quote.	75
U.S. v. Cruikshank 1876.	Cong. Power under 14^th Amendment	Waite	Majority	Yes. A basic human right which pre-exists the Constitution, and is guaranteed by the Constitution, exactly like the 1^st A. right to assembly.	No quote.	78
Scott v. Sandford. 1857.	Citizenship; Cong. powers over territories.	Taney	Majority	Yes.	Partial quote.	80
Houston v. Moore. 1820.	State powers over militia.	Story	Dissent	Yes, but also supportive of a state’s right. (A later treatise written by Story is for individual right only.)	No quote.	83

I. The Rehnquist Court

Since William Rehnquist was appointed Chief Justice in 1986, six different opinions have addressed the Second Amendment. The authors of the opinions include the small left wing of the Court (Justices Stevens and Ginsburg), the Court’s right wing (Justices Thomas and Rehnquist), and the Court’s centrist Justice O’Connor. Every one of the opinions treats the Second Amendment as an individual right. Except for Justice Breyer, every sitting Supreme Court Justice has joined in at least one of these opinions—although this joinder does not prove that the joiner necessarily agreed with what the opinion said about the Second Amendment. Still, five of the current Justices have written an opinion in which the Second Amendment is considered an individual right, and three more Justices have joined such an opinion.

A. Spencer v. Kemna

After serving some time in state prison, Spencer was released on parole.[38] While free, he was accused but not convicted of rape, and his parole was revoked.[39] He argued that his parole revocation was unconstitutional.[40] But before his constitutional claim could be judicially resolved, his sentence ended, and he was released.[41] The majority of the Supreme Court held that since Spencer was out of prison, his claim was moot, and he had no right to pursue his constitutional lawsuit.

Justice Stevens, in dissent, argued that being found to have perpetrated a crime (such as the rape finding implicit in the revocation of Spencer’s parole) has consequences besides prison:

An official determination that a person has committed a crime may cause two different kinds of injury. It may result in tangible harms such as imprisonment, loss of the right to vote or to bear arms, and the risk of greater punishment if another crime is committed. It may also severely injure the person’s reputation and good name.[42]

A person can only lose a right upon conviction of a crime if a person had the right before conviction. Hence, if an individual can lose his right “to bear arms,” he must possess such a right. Justice Stevens did not specifically mention the Second Amendment, so it is possible that his reference to the right to bear arms was to a right created by state constitutions, rather than the federal one. (Forty-four states guarantee a right to arms in their state constitution.[43]) When particular gun control laws are before the Supreme Court for either statutory or constitutional interpretation, Justice Stevens is a reliable vote to uphold the law in question, often with language detailing the harm of gun violence.[44] It is notable, then, that Justice Stevens recognizes a right to bear arms as an important constitutional right, whose deprivation should not be shielded from judicial review.[45]

B. Muscarello v. United States

Federal law provides a five year mandatory sentence for anyone who “carries a firearm” during a drug trafficking crime.[46] Does the sentence enhancement apply when the gun is merely contained in an automobile in which a person commits a drug trafficking crime—such as when the gun is in the trunk? The Supreme Court majority said “yes.”[47] In dissent, Justice Ginsburg—joined by Justices Rehnquist, Scalia[48], and Souter—argued that “carries a firearm” means to carry it so that it is ready to use.[49] In support for her view, Justice Ginsburg pointed to the Second Amendment “keep and bear arms” as an example of the ordinary meaning of carrying a firearm:

It is uncontested that §924(c)(1) applies when the defendant bears a firearm, i.e. , carries the weapon on or about his person “for the purpose of being armed and ready for offensive or defensive action in case of a conflict.” Black’s Law Dictionary 214 (6^th ed. 1990) (defining the phrase “carry arms or weapons”); see ante, at 5. The Court holds that, in addition, “carries a firearm,” in the context of §924(c)(1), means personally transporting, possessing, or keeping a firearm in a vehicle, anyplace in a vehicle.

Without doubt, “carries” is a word of many meanings, definable to mean or include carting about in a vehicle. But that encompassing definition is not a ubiquitously necessary one. Nor, in my judgment, is it a proper construction of “carries” as the term appears in §924(c)(1). In line with Bailey and the principle of lenity the Court has long followed, I would confine “carries a firearm,” for §924(c)(1) purposes, to the undoubted meaning of that expression in the relevant context. I would read the words to indicate not merely keeping arms on one’s premises or in one’s vehicle, but bearing them in such manner as to be ready for use as a weapon.

. . .

Unlike the Court, I do not think dictionaries, surveys of press reports, or the Bible tell us, dispositively, what “carries” means embedded in §924(c)(1). On definitions, “carry” in legal formulations could mean, inter alia, transport, possess, have in stock, prolong (carry over), be infectious, or wear or bear on one’s person. At issue here is not “carries” at large but “carries a firearm.” The Court’s computer search of newspapers is revealing in this light. Carrying guns in a car showed up as the meaning “perhaps more than one third” of the time. Ante, at 4. One is left to wonder what meaning showed up some two thirds of the time. Surely a most familiar meaning is, as the Constitution’s Second Amendment (“keep and bear Arms”) (emphasis added) and Black’s Law Dictionary, at 214, indicate: “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.”[50]

Perhaps no word in the Second Amendment is as hotly contested as the word “bear.” The Standard Model scholars, following the usage of Webster’s Dictionary,[51] the 1776 Pennsylvania Constitution,[52] and the 1787 call for a Bill of Rights from the dissenters at the Pennsylvania Ratification Convention read the word “bear” as including ordinary types of carrying.[53] Thus, a person carrying a gun for personal protection could be said to be bearing arms. If individuals can “bear arms,” then the right to “bear arms” must belong to individuals.

In contrast, Garry Wills (who argues that the Second Amendment has “no real meaning”[54]) argues that “bear” has an exclusively military context.[55] It is impossible, he writes, to “bear arms” unless once is engaged in active militia service. Hence, the right to “bear arms” does not refer to a right of individuals to carry guns.[56]

Justice Ginsburg’s opinion plainly takes the former approach. She believes that “to bear arms” is to wear arms in an ordinary way.[57]

C. Printz v. United States

In Printz v. United States, the Supreme Court voted 5 to 4 to declare part of the Brady Act unconstitutional, because the Act ordered state and local law enforcement officials to perform a federal background check on handgun buyers.[58] While the Printz decision was not a Second Amendment case, Printz did result in some Second Amendment language from Justice Clarence Thomas’s concurring opinion.

Justice Thomas joined in Justice Scalia’s five-person majority opinion, but he also wrote a separate concurring opinion—an opinion which shows that all the Second Amendment scholarship in the legal journals is starting to be noticed by the Court.

The Thomas concurrence began by saying that, even if the Brady Act did not intrude on state sovereignty, it would still be unconstitutional.[59] The law was enacted under the congressional power “to regulate commerce. . .among the several states.”[60] But the Brady Act applies to commerce that is purely intrastate—the sale of handgun by a gun store to a customer in the same state.[61] Justice Thomas suggested that although the interstate commerce clause has, in recent decades, been interpreted to extend to purely intrastate transactions, that interpretation is wrong.[62]

Even if the Brady Act were within the Congressional power over interstate commerce, Justice Thomas continued, the Act might violate the Second Amendment:

. . . .Even if we construe Congress’ authority to regulate interstate commerce to encompass those intrastate transactions that “substantially affect” interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress’ regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from “prohibiting the free exercise” of religion or “abridging the freedom of speech.” The Second Amendment similarly appears to contain an express limitation on the government’s authority. That Amendment provides: “[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.” This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. ^[n.1] If, however, the Second Amendment is read to confer[63] a personal right to “keep and bear arms,” a colorable argument exists that the Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment’s protections. ^[n.2] As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” 3 J. Story, Commentaries §1890, p. 746 (1833). In the meantime, I join the Court’s opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.[64]

There are several notable elements in the Thomas concurrence. First, Justice Thomas equates the Second Amendment with the First Amendment. This is consistent with the rule from the Valley Forge case that all parts of the Bill of Rights are on equal footing; none is preferred (or derogated).[65] He implicitly rejected second-class citizenship for the Second Amendment.

Justice Thomas then suggests that the Brady Act could be invalid under the Second Amendment.[66] Regarding right to bear arms provisions in state constitutions, some state courts have upheld various gun restrictions as long as all guns are not banned.[67] Justice Thomas plainly does not take such a weak position in defense of the Second Amendment.[68] His implication is that by requiring government permission and a week-long prior restraint on the right to buy a handgun, the Brady Act infringed the Second Amendment.

And of course by recognizing that handguns are a Second Amendment issue, Justice Thomas implicitly rejects the argument that the Second Amendment merely protects “sporting weapons” (usually defined as a subset of rifles and shotguns).[69]

Noting that the Second Amendment was not at issue in the case before the Court (the case was brought by sheriffs who did not want to be subject to federal commands, rather by gun buyers or gun dealers), Justice Thomas gently urges the rest of the Court to take up a Second Amendment case in the future. And he leaves no doubt about his personal view of the issue, as he quotes the 19^th century legal scholar and Supreme Court Justice Joseph Story, who saw the right to bear arms “as the palladium of the liberties of a republic.”[70]

There are two footnotes in the Second Amendment portion of the Thomas concurrence. In the first footnote, the Justice states that the Supreme Court has not construed the Second Amendment since the 1939 case United States v. Miller (which upheld the National Firearms Act’s tax and registration requirement for short shotguns[71]). He added that the Supreme Court has never directly ruled on the individual rights issue.

1 Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court’s invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen’s right to possess a sawed off shotgun because that weapon had not been shown to be “ordinary military equipment” that could “contribute to the common defense.” Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.

The second footnote addressed the growing scholarship on the Second Amendment:

2 Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the “right to keep and bear arms” is, as the Amendment’s text suggests, a personal right. See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo American Right 162 (1994); S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right (1984); Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994); Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992); Cottrol & Diamond, The Second Amendment: Toward an Afro Americanist Reconsideration, 80 Geo. L. J. 309 (1991); Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989); Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983). Other scholars, however, argue that the Second Amendment does not secure a personal right to keep or to bear arms. See, e.g., Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L. J. 551 (1991); Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson’s The Embarrassing Second Amendment, 99 Yale L. J. 661 (1989); Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22 (1984). Although somewhat overlooked in our jurisprudence, the Amendment has certainly engendered considerable academic, as well as public, debate.

In the second footnote, Justice Thomas points out that the text of the Second Amendment (which refers to “the right of the people”) suggests that the Second Amendment right belongs to individuals, not the government.

As Justice Thomas notes, a large body of legal scholarship in the last fifteen years has examined the historical evidence, and found very strong proof that the Second Amendment guarantees an individual right.[72]

The Supreme Court does not always follow the viewpoint of the legal academy. But for most of this century, the Court has always been influenced by the academy’s opinion. In the 1940s, for example, legal scholars paid almost no attention to the Second Amendment, and neither did the Supreme Court; in that decade, the Second Amendment was mentioned only once, and that mention was in a lone dissent.[73] But starting in the late 1970s, a Second Amendment revolution began to take place in legal scholarship. That an intellectual revolution was in progress became undeniable after the Yale Law Journal published Sanford Levinson’s widely influential article The Embarrassing Second Amendment in 1989.[74] Since then, scholarly attention to the Second Amendment has grown even more rapidly. And more importantly, for purposes of this article, the Supreme Court Justices have raised the Second Amendment in six different cases in 1990-98. Six mentions in nine years hardly puts the Second Amendment on the same plane as the First Amendment; but six times in one decade is a rate six times higher than in the 1940s.

D. Albright v. Oliver

Albright involved a Section 1983 civil rights lawsuit growing out of a malicious decision to prosecute someone for conduct which was not crime under the relevant state law.[75] The issue before the Supreme Court was whether the prosecutor’s action violated the defendant’s Fourteenth Amendment Due Process rights. The majority said “no,” in part because the claim (growing out of the victim’s unlawful arrest) would be better presented as a Fourth Amendment claim.[76]

Justice Stevens dissented, and was joined by Justice Blackmun; part of the dissent quoted Justice Harlan’s analysis of the meaning of the Fourteenth Amendment, and the Fourteenth Amendment’s protection of the “right to keep and bear arms”:

At bottom, the plurality opinion seems to rest on one fundamental misunderstanding: that the incorporation cases have somehow “substituted” the specific provisions of the Bill of Rights for the “more generalized language contained in the earlier cases construing the Fourteenth Amendment.” Ante, at 7. In fact, the incorporation cases themselves rely on the very “generalized language” the Chief Justice would have them displacing. Those cases add to the liberty protected by the Due Process Clause most of the specific guarantees of the first eight Amendments, but they do not purport to take anything away; that a liberty interest is not the subject of an incorporated provision of the Bill of Rights does not remove it from the ambit of the Due Process Clause. I cannot improve on Justice Harlan’s statement of this settled proposition:

“The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, 367 U.S. 497, 543 (1961) (dissenting opinion).[77]

I have no doubt that an official accusation of an infamous crime constitutes a deprivation of liberty worthy of constitutional protection. The Framers of the Bill of Rights so concluded, and there is no reason to believe that the sponsors of the Fourteenth Amendment held a different view. The Due Process Clause of that Amendment should therefore be construed to require a responsible determination of probable cause before such a deprivation is effected. [78]

In Poe v. Ullman, the second Justice Harlan construed the “liberty” protected by the Fourteenth Amendment.[79] Although Justice Harlan’s words originally were written in dissent, they have been quoted in later cases as the opinion of the Court.[80] Fourteenth Amendment “liberty” of course belongs to individuals, not to state governments. The point of the Fourteenth Amendment was to protect individual liberty from state infringement.

This “liberty” is not limited to “the specific guarantees elsewhere provided in the Constitution” including “the right to keep and bear arms.” These individual rights in the Harlan list, like other individual rights in the Bill of Rights, might be included in the Fourteenth Amendment’s protection of “liberty” against state action. The point made by Justice Harlan (and Justice Stevens, quoting Justice Harlan), is that Fourteenth Amendment “liberty” includes things which are not part of the Bill of Rights, and does not necessarily include every individual right which is in the Bill of Rights.

While the Harlan quote makes no direct claim about whether the individual Bill of Rights items should be incorporated in the Fourteenth Amendment, Justice Harlan was plainly saying that simply because an individual right is protected in the Bill of Rights does not mean that it is protected by the Fourteenth Amendment. (Justice Black’s view was directly opposite.[81]) Therefore, although the Harlan quote is not dispositive, the quote could appropriately be used to argue against incorporating the Second Amendment into the Fourteenth.

At the same time, the quote obviously treats the Second Amendment as an individual right. That is why Justice Harlan used the Second Amendment (along with the religion, speech, press, freedom from unreasonable searches, and property) to make a point about what kind of individual rights are protected by the Fourteenth Amendment.

As we shall see below, Justice Harlan’s words are the words about the Second Amendment which the Supreme Court has quoted most often.

E. Planned Parenthood v. Casey

Planned Parenthood was a challenge to a Pennsylvania law imposing various restrictions on abortion.[82] In discussing the scope of the Fourteenth Amendment, Justice Sandra Day O’Connor’s opinion for the Court approvingly quoted Justice Harlan’s earlier statement that “the right to keep and bear arms” is part of the “full scope of liberty” contained in the Bill of Rights, and made applicable to the state by the Fourteenth Amendment.[83] Although the Planned Parenthood decision was fractured, with various Justices joining only selected portions of each others’ opinions, the portion where Justice O’Connor quoted Justice Harlan about the Fourteenth and Second Amendments was joined by four other Justices, and represented the official opinion of the Court.

Planned Parenthood is the second of the four Supreme Court opinions that quote the Harlan dissent in Poe. (The other two will be discussed infra.) Had the authors of those opinions chosen to delete the “right to keep and bear arms” words, by using ellipses, they certainly could have done so. As we shall see when we come to the original Harlan opinion in Poe v. Ullman, the full Harlan analysis of the scope of Fourteenth Amendment liberty includes important material which later Justices carefully avoided quoting.[84]

F. United States v. Verdugo-Urquidez

United States v. Verdugo-Urquidez[85] involved American drug agents’ warrantless search of a Mexican’s homes in Mexicali and San Felipe, Mexico. When Verdugo-Urquidez was prosecuted in a United States court for distribution of marijuana, his attorney argued that the evidence seized from his homes could not be used against him.[86] If the homes in question had been located in the United States and owned by an American, the exclusionary rule clearly would have forbade the introduction of the evidence. But did the U.S. Fourth Amendment protect Mexican citizens in Mexico?

Chief Justice Rehnquist’s majority opinion said “no.” Part of the Court’s analysis investigated who are “the people” protected by the Fourth Amendment:

“[T]he people” seems to have been a term of art employed in select parts of the Constitution. 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 Amendment provide that certain rights and power 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 Amendment, and to whom rights 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.[87]

By implication therefore, if “the people” whose right to arms is protected by the Second Amendment are American people, then “the right of the people” in the Second Amendment does not mean “the right of the states.”[88] To adopt the Henigan/Bogus theory, and find that the Second Amendment “right of the people” belongs to state governments would require a rejection of Verdugo’s explication of who are “the people” of the Second Amendment and the rest of the Constitution.

The dissent by Justice Brennan would have given “the people” a broader reading: “‘The People’ are ‘the governed.’”[89] The dissent’s reading is likewise consistent only with the Standard Model, and not with the State’s Rights view. If “the people” of the Second Amendment are “the governed,” then the “right of the people” must belong to people who are governed, and not to governments.[90]

Interestingly, the majority opinion’s analysis of “the people” protected by the Bill of Rights was an elaboration of a point made by the dissenting opinion from the Ninth Circuit Court of Appeals, when the majority had held that Mr. Verdugo was entitled to Fourth Amendment protections.[91] When the Verdugo case went to the Supreme Court, the Solicitor General’s office quoted from Ninth Circuit’s dissent, but used ellipses to remove the dissent’s reference to the Second Amendment.[92] The Supreme Court majority, of course, put the Second Amendment back in.

II. The Burger Court

The Second Amendment record of the Burger Court is more complex than that of the Rehnquist Court. The Rehnquist Court dicta about the Second Amendment points exclusively to the Second Amendment as an individual right. Indeed, except for Justice Thomas’s observation that Miller did not resolve the individual rights issue, nothing in the Rehnquist Court’s record contains even a hint that the Second Amendment might not be an individual right. In contrast, the Burger Court’s dicta are not so consistent.

A. Lewis v. United States

The one Supreme Court majority opinion which is fully consistent with the Henigan/Bogus state’s rights theory is Lewis v. United States.[93] Interestingly, the same advocates who dismiss Verdugo because it was not a Second Amendment case rely heavily on Lewis even though it too is not a Second Amendment case. The issue in Lewis was primarily statutory interpretation, and secondarily the Sixth Amendment. A federal statute imposes severe penalties on persons who possess a firearm after conviction for a felony.[94] In 1961, Lewis had been convicted of burglary in Florida[95]; since Lewis was not provided with counsel, his conviction was invalid under the rule of Gideon v. Wainright.[96] The question for the Court was whether Congress, in enacting the 1968 law barring gun possession by a person who “has been convicted by a court of the United States or of a State. . .of a felony,” meant to include persons whose convictions had been rendered invalid by the 1963 Gideon case. Writing for a six-justice majority, Justice Blackmun held that the statutory language did apply to person with convictions invalid under Gideon.[97]

Given the non-existent legislative history on the point, Justice Blackmun was forced to be rather aggressive in his reading of Congressional intent. For example, Senator Russell Long, the chief sponsor of the Gun Control Act of 1968, had explained that “every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny. . .the right to possess a firearm. . . .”[98] This supposedly showed Congressional intent to disarm people like Lewis, since the Senator had “stressed conviction, not a ‘valid’ conviction.”[99] By this reasoning, the Gun Control Act of 1968 would likewise apply to Scottsboro Boys; they had been tortured into confessing a crime which they did not commit, but they did indeed have a “conviction” for murder, even if not “a valid conviction.”[100] Justice Brennan’s dissent pointed out that the majority’s reasoning would impose the Gun Control Act even on people whose convictions had been overturned by an appellate court.[101]

Did the Gun Control Act (as interpreted by the Court) violate equal protection?

Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit possession of a firearm. See, e.g., United States v. Ransom, 515 F.2d 885, 891-892 (CA5 1975), cert. Denied, 424 U.S. 944 (1976). This Court has repeatedly recognized that a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm. See Richardson v. Ramirez, 418 U.S. 24 (1974)(disenfranchisement); De Veau v. Braisted, 363 U.S. 144, 363 U.S. 144 (1960)(proscription against holding office in a waterfront labor organization); Hawker v. New York, 170 U.S. 189 (1898)(prohibition against the practice of medicine).[102]

From this, it is reasonable to infer that possession of a firearm is a “right,” but a right which is far less “fundamental” than voting, serving as an officer in a union, or practicing medicine. As to whether possessing a firearm is a constitutional right, the opinion does not say. But the opinion could certainly be cited for support that arms possession is not “fundamental” enough to be protected by the Fourteenth Amendment’s due process clause.

In a footnote of the section supporting the rationality of a statute disarming convicted felons, Justice Blackmun wrote:

These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (the Second Amendment guarantees no right to keep and bear a firearm that does not have “some reasonable relationship to the preservation or efficiency of a well-regulated militia”); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F. 2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972)(the latter three cases holding, respectively, that 1202(a)(1), 922(g), and 922(a)(6) do not violate the Second Amendment).[103]

Attorney Stephen Halbrook (the successful plaintiffs’ attorney in the Supreme Court gun cases of Printz v. United States[104], and United States v. Thompson/Center[105]) reads Lewis as reflecting the principle that since a legislature may deprive a felon “of other civil liberties, and may even deprive a felon of life itself—felons have no fundamental right to keep and bear arms.”[106]

As a matter of formal linguistics, Halbrook’s reading of Lewis is not impermissible. But it is also possible to read the Lewis opinion as saying, in effect, “since no-one has a right to have a gun, a law against felons owning guns does not infringe on Constitutional rights.”

What of the three Court of Appeals cases cited by Justice Blackmun?

The Three Winchester 30-30 Caliber Lever Action Carbines case upholds the forfeiture of guns possessed by a convicted felon. The footnote cited by the Supreme Court states:

Apparently at the district court level the defendant argued that 18 U.S.C. App. § 1202 was invalid as an “infringement of the second amendment’s protection of the right to bear arms, the first amendment’s prohibition of bills of attainder and ex post facto laws, and the fourteenth amendment’s due process clause.” These arguments were appropriately rejected. [citations omitted][107]

The Cody[108] case upheld the conviction of a felon who falsified a federal gun registration form and falsely claimed that he had no felony conviction. Regarding Cody’s Second Amendment claim, the Eighth Circuit stated:

It has been settled that the Second Amendment is not an absolute bar to congressional regulation of the use or possession of firearms. The Second Amendment’s guarantee extends only to use or possession which “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id [Miller]. At 178, 59 S. Ct. at 818. See United States v. Synnes, 438 F.2d 764, 772 (8^th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S. Ct. 687, 30 L. Ed. 2d 657 (1972); Cases v. United States, 131 F.2d 916, 922 (1^st Cir. 1942), cert. denied sub nom., Velazquez v. United States, 319 U.S. 770, 63 S. Ct. 1431, 87 L. Ed. 1718 (1943).[109] We find no evidence that the prohibition of § 922(a) (6) obstructs the maintenance of a well regulated militia.[110]

In Johnson, the Fourth Circuit upheld the Gun Control Act as applied to a convicted felon who transported a firearm in interstate commerce.[111] Regarding Johnson’s Second Amendment claim, the Circuit wrote that “The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a ‘reasonable relationship to the preservation or efficiency of a well regulated militia.’”[112]

Now a “collective right” can be read two ways: it can be like “collective property” in a Communist property; since it belongs to all the people collectively, it belongs only to the government. Alternatively, a “collective right” to arms can be a right of all the people to have a militia, and for this purpose, each person has a right to possess arms for militia purposes (but not to possess arms for other purposes, such as self-defense).[113] Indeed, this is the approach taken by Aymette, the Tennessee Supreme Court case which is the sole citation for the rule of decision in Miller; Aymette states that the Second Amendment protects individual possession of militia-type arms, so that those individuals may collectively exercise their rights in a militia.[114]

Neither Lewis nor its three cited Court of Appeals cases claim that the Second Amendment right belongs to state governments. And none of them goes so far as to claim that law-abiding American citizens have no Second Amendment right to possess arms. But Lewis and its cited cases, especially Johnson, certainly come close to that proposition. Although Halbrook’s reading of Lewis is not formally wrong, the spirit of Lewis has little in common with the Standard Model of the Second Amendment.

If Lewis were the Supreme Court’s last word on the Second Amendment, the Standard Model, no matter how accurate in its assessment of original intent, would seem on shaky ground as a description of contemporary Supreme Court doctrine. But Lewis, while not ancient, is no longer contemporary. As discussed above, six subsequent Supreme Court cases have addressed the Second Amendment as an individual right. Only two justices from the Lewis majority remain on the Court, and both of those justices (Rehnquist and Stevens) have written 1990s opinions which regard the Second Amendment as an individual right.

The Rehnquist cases suggest that it is unlikely that the current Court would read Lewis’s hostile but ambiguous language as negating an individual right.

B. Moore v. East Cleveland

Not only do the Rehnquist cases impede any effort to read Lewis as the definitive state’s right case, so does a case decided four years before Lewis. The Moore v. East Cleveland litigation arose out of a zoning regulation which made it illegal for extended families to live together.[115] The plurality opinion by Justice Powell found in the Fourteenth Amendment a general protection for families to make their own living arrangements.[116] Thus, the East Cleveland law, which, for example, forbade two minor cousins to live with their grandmother, [117] was unconstitutional.

In discussing the boundaries of the Fourteenth Amendment, the Powell plurality opinion for the Court quoted from Justice Harlan’s dissent in Poe v. Ullman. This was the same language that was later quoted by Justice O’Connor’s majority opinion in Planned Parenthood v. Casey,[118] and by Justice Stevens’ dissent in Albright v. Oliver[119]:

But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment’s Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case.

Understanding those reasons requires careful attention to this Court’s function under the Due Process clause. Mr. Justice Harlan described it eloquently:

Due process cannot be reduced to any formula; its content cannot be determined by reference to any code. . .The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. . . .

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which broadly speaking, includes freedom from all substantial arbitrary impositions and purposeless restraints” Poe v. Ullman, supra, at 542-543 (dissenting opinion).[120]

In dissent, Justice White also quoted from Justice Harlan’s words in Poe. While Justice White included the language about the Second Amendment, he did not include the preceding paragraph about tradition.[121]

Since the Fourteenth Amendment belongs exclusively to individuals, and not to state governments, the only possible reading of Moore v. East Cleveland is that the Second Amendment protects an individual right.

The “tradition” paragraph from Justice Harlan, quoted by Justice Powell, strengthens an argument for incorporating the Second Amendment. The right to arms had roots as one of the “rights of Englishmen” recognized by the English 1689 Bill of Rights,[122] and was adopted in nine of the first fifteen states’ constitutions.[123] When the Constitution was proposed, five state ratifying conventions called for a right to arms—more than for any other single right that became part of the Bill of Rights.[124] With the exception of a single concurring opinion by an Arkansas judge in 1842,[125] every known judicial opinion and scholarly commentary from the nineteenth century treated the Second Amendment as an individual right.[126]

Justice Harlan’s “tradition is a living thing” analysis also looks at whether the right in question is supported by modern “tradition.” The right to arms fares well under this analysis too. Between a third and a half of all American households choose to own firearms,[127] and many others own other types of “arms” (such as edged weapons) which might fall within the scope of protected “arms.”[128] Today, forty-four state constitutions guarantee a right to arms[129]; in 15 states in the last three decades, voters have added or strengthened an arms right to their state constitution, always by a very large majority.[130] Twenty years ago, only a few states allowed ordinary citizens to obtain a permit carry a concealed handgun for protection; now twenty-nine states have “shall issue” laws, and two states require no permit at all.[131]

Contrast all the “traditional” support for the right to arms with the absence of such support for the Fifth Amendment’s guarantee against the taking of property without due process and just compensation. No state ratifying convention had demanded such a clause, and no such right was recognized in the English Bill of Rights.[132] If the just compensation is “traditional” enough to have been incorporated, as it has been,[133] the argument for incorporating the Second Amendment is all the stronger.

But while the Harlan language quoted in East Cleveland has favorable implications for Second Amendment incorporation, East Cleveland does not itself perform the incorporation.[134]

And while East Cleveland’s implication for the Second Amendment as an individual right seems clear enough under its own terms, Justice Powell’s personal views appear to have changed after 1976. After retiring from the Court, in 1988 he gave a speech to the American Bar Association in which he said that the Constitution should not be construed to guarantee a right to own handguns[135]; this speech was not necessarily inconsistent with East Cleveland, since a Second Amendment right to arms might exclude some types of arms. But in 1993, Justice Powell went even further, suggesting in a television interview that the Constitution should not be read to as guaranteeing a right to own even sporting guns.[136]

Whatever the evolution of Justice Powell’s thoughts about gun rights, the only words he ever put in the United States Reports treat the Second Amendment as an individual right.

C. Adams v. Williams

The only written opinion from a Supreme Court Justice which plainly rejects an individual right came from Justice Douglas, dissenting in the 1972 case of Adams v. Williams.[137] Acting on a tip, a police officer stopped a motorist for questioning, and then grabbed a revolver hidden in the driver’s waistband.[138] The Supreme Court majority upheld the officer’s actions as a reasonable effort to protect his safety.[139]

Justice Douglas, a strong defender of the Fourth Amendment right to be free from unreasonable searches, dissented.[140] After discussing Fourth Amendment issues, Justice Douglas then editorialized in favor of handgun control and prohibition, and asserted that the Second Amendment posed no barrier to severe gun laws:

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “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.”

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”

“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia - civilians primarily, soldiers on occasion.” Id., at 178-179.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U.S. 1, to “possessory offenses” is a serious intrusion on Fourth Amendment safeguards. “If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows ‘that criminal activity may be afoot.’” 436 F.2d, at 39, quoting Terry v. Ohio, supra, at 30.[141]

Justice Douglas’s statement is a clear affirmation of the anti-individual interpretation of the Second Amendment which is espoused by the anti-gun lobbies. Since Justice Douglas was writing in dissent, his opinion creates no legal precedent. Nevertheless, the opinion is emblematic of the belief of some civil libertarians that the move to “water down” the Fourth Amendment can be forestalled by watering down the Second Amendment.

Justice Brennan did not join the Douglas dissent, but instead wrote his own. Justice Brennan presciently noted that the Court’s loose standard for “stop and frisk” would become a tool for police officers to search people at will, with officer safety often serving as a mere pretext.[142] (Adams v. Williams is one of the key cases opening the door to the broad variety of warrantless searches which are now allowed.) Justice Brennan also noted the illogic of allowing stop-and-frisk for guns in a state which allows citizens to carry concealed handguns.[143] (Connecticut was one of the first states to adopt “shall issue” laws for concealed handgun permits; now, thirty-one states have such laws.[144])

Justice Marshall’s dissent made a similar point, noting that after the officer discovered the gun, he immediately arrested Williams, without asking if Williams had a permit.[145]

D. Roe v. Wade

The year after Justice Douglas took a clear stand against individual Second Amendment rights in Adams, Justice Stewart authored an opinion in the opposite direction.

The majority opinion in Roe v. Wade,[146] written by Justice Harry Blackmun, has been justly criticized for having no connection with the text of the Constitution, and only a tenuous connection with the prior precedents of the Supreme Court.[147] Justice Potter Stewart, perhaps recognizing the weakness of the Blackmun opinion, authored a concurring opinion coming to the same result as Justice Blackmun, but attempting to ground the result more firmly in precedent.[148] As part of the analysis arguing that the right to abortion was part of the “liberty” protected by the Fourteenth Amendment, Justice Stewart quoted Justice Harlan’s dissenting opinion in Poe v. Ullman[149], which had listed the right to keep and bear arms as among the liberties guaranteed by the Fourteenth Amendment:

As Mr. Justice Harlan once wrote: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, “Great concepts like . . . ‘liberty’ . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).[150]

Thus, the Harlan dissenting language about the Second Amendment, from Poe v. Ullman, has been quoted in one majority opinion (Planned Parenthood v. Casey[151]), one plurality opinion (Moore v. East Cleveland[152]), two dissents (Albright v. Oliver and Moore v. East[153]), and one concurrence (Roe v. Wade[154]). In contrast, the Douglas dissenting language about the Second Amendment, from Adams v. Williams,[155] has never been quoted in an opinion by any Justice.

E. Laird v. Tatum

During the Cold War and the Vietnam War, the United States Army illegally spied on American anti-war critics.[156] When the Army’s conduct was to discovered, a group of individuals who had been spied upon brought suit in federal court.[157] In a sharply divided five-four decision, the Supreme Court majority held that the suit was not justiciable.[158] The plaintiffs could not show that they had been harmed by the Army, or that there was a realistic prospect of future harm, and hence there was no genuine controversy for a federal court to hear.[159] Justice Douglas (joined by Justice Marshal) penned a fiery dissent, invoking the long struggle to free civil life from military domination.[160]

Justice Douglas began by examining the power which the Constitution grants Congress over the standing army and over the militia.[161] Since Congress is not granted any power to use the army or militia for domestic surveillance, it necessarily follows that the army has no power on its own to begin a program of domestic surveillance.[162]

Moving onto a broader discussion of the dangers of military dictatorship, Justice Douglas quoted an article which Chief Justice Earl Warren had written in the New York University Law Review, which mentioned the Second Amendment as one of the safeguards intended to protect America from rule by a standing army.[163]

As Chief Justice Warren has observed, the safeguards in the main body of the Constitution did not satisfy the people on their fear and concern of military dominance:

“They were reluctant to ratify the Constitution without further assurances, and thus we find in the Bill of Rights Amendments 2 and 3, specifically authorizing a decentralized militia, guaranteeing the right of the people to keep and bear arms, and prohibiting the quartering of troops in any house in time of peace without the consent of the owner. Other Amendments guarantee the right of the people to assemble, to be secure in their homes against unreasonable searches and seizures, and in criminal cases to be accorded a speedy and public trial by an impartial jury after indictment in the district and state wherein the crime was committed. The only exceptions made to these civilian trial procedures are for cases arising in the land and naval forces. Although there is undoubtedly room for argument based on the frequently conflicting sources of history, it is not unreasonable to believe that our Founders’ determination to guarantee the preeminence of civil over military power was an important element that prompted adoption of the Constitutional Amendments we call the Bill of Rights.”[164]

The Earl Warren law review language is, on its face, consistent with individual rights. He listed the right to arms among other individual rights, and he treated the Second Amendment’s subordinate clause (about the importance of well-regulated militia) as protecting something distinct from the Second Amendment’s main clause (the right of the people to keep and bear arms).[165]

But based on Justice Douglas’s dissent the same year in Adams, we cannot ascribe to Justice Douglas the full implication of what Chief Justice Warren wrote in the N.Y.U. Law Review. And while Chief Justice Warren’s N.Y.U. article is interesting, Chief Justice Warren never wrote anything about the Second Amendment in a Supreme Court opinion.

III. The Warren, Vinson, and Hughes Courts

During the tenure of Chief Justices Earl Warren (1953-69) and Fred Vinson (1946-53), opinions in nine cases addressed the Second Amendment. Seven of those opinions (majority opinions by Justices Brennan, Frankfurter, Harlan, and Jackson; a concurrence by Justice Black; and dissents by Justices Black and Harlan) recognized an individual right in the Second Amendment. The eighth case, an “appeal dismissed” contained no explanation, and thus was consistent with both the Standard Model individual right and the Henigan/Bogus state’s right. The earliest case in this period was a 1934 decision that used the Second Amendment to support a state’s right to control its militia.[166]

A. Burton v. Sills

Burton v. Sills involved a challenge to the then-new gun licensing law in New Jersey.[167] The law did not ban any guns, but established a licensing system intended to screen out people with serious criminal convictions, substance abusers, and the like. After the New Jersey Supreme Court rejected a Second Amendment challenge to the law[168], the plaintiffs asked the Supreme Court to review the case; the request came in the form of an “appeal,” rather than a petition for a writ of certiorari.[169]

The United States Supreme Court declined to hear the case.[170] Since the case had come by appeal, rather than petition for a writ, the Court wrote the standard phrase used at the time in denying an appeal: “The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.”[171]

The Supreme Court has explained that dismissals such as the one in Burton have some value in guiding lower courts:

Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions. After Salera, for example, other courts were not free to conclude that the Pennsylvania provision invalidated was nevertheless constitutional. Summary actions, however, including Salera, should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved.[172]

Thus, following the appeal dismissal in Burton v. Sills, a lower federal court could not conclude that the New Jersey gun licensing law violated the Second Amendment.

The appeal dismissal does not necessarily endorse the reasoning of the state court against which the appeal was taken. (The New Jersey Supreme Court had said that the Second Amendment is not an individual right.[173])

The plaintiffs in Burton had conceded that prior Supreme Court cases (particularly the 1886 Presser case) had said that the Second Amendment limits only the federal government, and not state governments.[174] The plaintiffs invited the courts to use the Burton case as an opportunity to reverse prior precedent.[175] The appeal dismissal in Burton may be read as the Court’s declining the invitation to re-open the issue decided by Presser.

Justice Thomas’s concurrence in Printz,[176] suggesting that the Brady Act waiting period may violate the Second Amendment, implies he would not read Burton as asserting that a New Jersey-style gun licensing system would be constitutional if enacted by the Congress. Reading Burton as an authorization for sweeping federal gun licensing would be inconsistent with the Supreme Court’s teaching that appeal dismissals “should not be understood as breaking new ground.”[177]

Given the plaintiffs’ requested grounds for Supreme Court review (to overturn Presser) it is logical to view Burton as a re-affirmance of Presser.[178]

On the other hand, since Burton contains no explicit reasoning, the case is not directly contradictory to the Henigan/Bogus theory.

B. Duncan v. Louisiana

In this case, the Supreme Court incorporated the Sixth Amendment right to jury trial, as part of the Fourteenth Amendment’s “due process” guarantee.[179] Justice Black, joined by Justice Douglas, concurred, and restated his argument from Adamson v. California[180] (infra) that the Fourteenth Amendment’s “privileges and immunities” clause should be read to include everything in the first eight Amendments.[181] He quoted a statement made on the Senate floor by Senator Jacob Howard, one of the lead sponsors of the Fourteenth Amendment:

Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. . .To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and bear arms; the right to be exempted from the quartering of soldiers in a house without consent of the owner. . . .[182]

Justice Black’s use in Duncan of the quote describing “the right to keep and bear arms” as one of “the personal rights guaranteed and secured by the first eight amendments” is fully consistent with his writing on the bench and in legal scholarship that the Second Amendment right to arms was one of the individual rights which the Fourteenth Amendment (properly interpreted) makes into a limit on state action.[183]

C. Malloy v. Hogan

This 1964 case used the Fourteenth Amendment’s due process clause to incorporate the Fifth Amendment’s privilege against self-incrimination.[184] Discussing the history of Fourteenth Amendment jurisprudence, Justice Brennan listed various “Decisions that particular guarantees were not safeguarded against state action by the Privileges and Immunities Clause or other provision of the Fourteenth Amendment.”[185] Among these were “Presser v. Illinois, 116 U.S. 252, 265 (Second Amendment),”[186] along with various other cases, almost of which had been, or would be, repudiated by later decisions on incorporation.[187]

As discussed above, any discussion of the Second Amendment as something which could be incorporated, even if no incorporation has been performed, necessarily presumes that the Second Amendment is an individual right. Justice Brennan’s explication of Presser as a case which rejects privileges and immunities incorporation is of some significance as a modern interpretation of Presser, since, as we shall discuss infra, the years after the 1886 Presser decision generated a variety of opinions about whether Presser actually had rejected incorporation.

D. Konigsberg v. State Bar of California

In Konigsberg, the Court majority upheld the state of California’s refusal to admit to the practice of law an applicant who refused answer questions about his beliefs regarding communism.[188] In dissent, Justice Black argued that First Amendment rights were absolute and that the inquiry into the prospective lawyer’s political beliefs was therefore a violation of the First Amendment.[189]

Justice Harlan’s majority opinion rejected Justice Black’s standard of constitutional absolutism.[190] The Harlan majority opinion is one of the classic examples of the “balancing” methodology of jurisprudence.[191] Justice Harlan pointed to libel laws as laws which restrict speech, but which do not infringe the First Amendment.[192] Similarly, he pointed to the Supreme Court’s ruling in United States v. Miller as an example of a law which restricted the absolute exercise of rights, but which had been held not to be unconstitutional.[193] Justice Harlan thereby treated the First and Second Amendment as constitutionally identical: guaranteeing an individual right, but not an absolute right.

n. 10. That view, which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: “Congress shall make no law . . . abridging the freedom speech, or of the press; or the right of the people peaceably to assemble . . . .” But as Mr. Justice Holmes once said: “[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” Gompers v. United States, 233 U.S. 604, 610. In this connection also compare the equally unqualified command of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” And see United States v. Miller, 307 U.S. 174.[194]

The year before Justice Black’s absolutist interpretative model was rejected by the majority of the Court, Justice Black had detailed the absolutist theory in the first annual James Madison lecture at the New York University School of Law.[195] Discussing each part of the Bill of Rights, Justice Black explained how each guarantee was unequivocal and absolute. For example, under the Sixth Amendment, a defendant had a “definite and absolute” right to confront the witnesses against him.[196] Regarding the Second Amendment, Justice Black explained:

Amendment Two provides that:

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.

Although the Supreme Court has held this Amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute.[197]

Did Justice Black mean that individuals have an absolute right to possess militia-type arms, or did Justice Black mean that state governments have an absolute right to arm the state militias as the state governments see fit? His view is particularly important, because he served on the Court that decided Miller, and he joined in the Court’s unanimous opinion.

Throughout the New York University speech, Justice Black referred exclusively to individual rights, and never to state’s rights. For example, he began his speech by explaining “I prefer to think of our Bill of Rights as including all provisions of the original Constitution and Amendments that protect individual liberty. . .”[198] If Justice Black thought that the Second Amendment protected state power, rather than individual liberty, he would not have included the Second Amendment in his litany of “absolute” guarantees in the Bill of Rights. In the discussion of Adamson v. California, infra, we will see “definite and absolute” proof that Justice Black considered the Second Amendment an individual right.

E. Poe v. Ullman

In the 1961 case Poe v. Ullman, the Court considered whether married persons had a right to use contraceptives.[199] The majority said “no,” but the second Justice Harlan, in a dissent (which gained ascendancy a few years later in Griswold v. Connecticut), wrote that the Fourteenth Amendment did guarantee a right of privacy. In developing a theory of exactly what the Fourteenth Amendment due process clause did protect, Justice Harlan wrote that the clause was not limited exclusively to “the precise terms of the specific guarantees elsewhere provided in the Constitution,” such as “the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures.”[200]

It is impossible to read Justice Harlan’s words as anything other than a recognition that the Second Amendment protects the right of individual Americans to possess firearms. The due process clause of the Fourteenth Amendment, obviously, protects a right of individuals against governments; it does not protect governments, nor is it some kind of “collective” right. It is also notable that Justice Harlan felt no need to defend or elaborate his position that the Second Amendment guaranteed an individual right. Despite the Henigan claim that the non-individual nature of the Second Amendment is “well-settled,” it was unremarkable to Justice Harlan that the Second Amendment guaranteed the right of individual people to keep and bear arms.

Like the Brandeis and Holmes dissents in the early free speech cases, the Harlan dissent in Poe today seems to be a correct statement of the law.

Some parts of the Harlan dissent, however, have not been quoted by future courts. For example, even though later opinions have quoted approvingly the Harlan language that the Fourteenth Amendment forbids “all substantial arbitrary impositions,”[201] those quotations omit the list of cases that Justice Harlan cited for the proposition. That list included Allgeyer v. Louisiana[202] and Nebbia v. New York,[203] both of which used the Fourteenth Amendment in defense of economic liberty. But Justice Harlan was certainly right that modern use of the Fourteenth Amendment to protect non-enumerated rights has its roots in the liberty of contract due process cases from the turn of the century. Although it is not currently respectable to say so in a Supreme Court opinion, cases such as Allgeyer and its progeny have as much a logical claim to be part of the Fourteenth Amendment as do Griswold[204] and its progeny; both lines of cases protect personal freedom from “substantial arbitrary impositions.”

But the fact that Allgeyer and Nebbia end up trimmed in later quotations of Justice Harlan’s words shows that the Justices who used the quote later (Stevens, O’Connor, Powell, and Stewart) were not just quoting without thought; they knew how to excise parts of Harlan’s language that they did not agree with, such as the references to economic liberty. That economic liberty was excised, while the Second Amendment stayed in, may, therefore, be plausibly considered as the writer’s decision.

Also unquoted by later Courts has been Justice Harlan’s statement, “Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights.”[205] In support of this proposition, he cited, inter alia, Presser v. Illinois, a nineteenth century case which will be discussed infra.

Interestingly, Justice Douglas wrote his own dissent, in which he stated that the Fourteenth Amendment must protect “all” the Bill of Rights.[206] This implies that the Second Amendment is an individual right, if it can be protected by the Fourteenth Amendment. But Justice Douglas later rejected this view, in his Adams v. Williams dissent.[207]

F. Knapp v. Schweitzer

Knapp involved the applicability of the Fifth Amendment’s self-incrimination clause to the states.[208] Justice Frankfurter’s majority opinion refused to enforce the clause against the states. In support of his position, the Justice reeled off a list of nineteenth century cases, including Cruikshank (discussed infra) which he cited for the proposition that it was well-settled almost all of the individual rights guarantees in the Bill of Rights were not applicable to the states:

n. 5. By 1900 the applicability of the Bill of Rights to the States had been rejected in cases involving claims based on virtually every provision in the first eight Articles of Amendment. See, e. g., Article I: Permoli v. Municipality No. 1, 3 How. 589, 609 (free exercise of religion); United States v. Cruikshank, 92 U.S. 542, 552 (right to assemble and petition the Government); Article II: United States v. Cruikshank, supra, at 553 (right to keep and bear arms); Article IV: Smith v. Maryland, 18 How. 71, 76 (no warrant except on probable cause); Spies v. Illinois, 123 U.S. 131, 166 (security against unreasonable searches and seizures); Article V: Barron v. Baltimore, note 2, supra, at 247 (taking without just compensation); Fox v. Ohio, 5 How. 410, 434 (former jeopardy); Twitchell v. Pennsylvania, 7 Wall. 321, 325-327 (deprivation of life without due process of law); Spies v. Illinois, supra, at 166 (compulsory self-incrimination); Eilenbecker v. Plymouth County, 134 U.S. 31, 34-35 (presentment or indictment by grand jury); Article VI: Twitchell v. Pennsylvania, supra, at 325-327 (right to be informed of nature and cause of accusation); Spies v. Illinois, supra, at 166 (speedy and public trial by impartial jury); In re Sawyer, 124 U.S. 200, 219 (compulsory process); Eilenbecker v. Plymouth County, supra, at 34-35 (confrontation of witnesses); Article VII: Livingston’s Lessee v. Moore, 7 Pet. 469, 551-552 (right of jury trial in civil cases); Justices v. Murray, 9 Wall. 274, 278 (re-examination of facts tried by jury); Article VIII: Pervear v. Massachusetts, 5 Wall. 475, 479-480 (excessive fines, cruel and unusual punishments).[209]

Here again, the Court majority treated the Second Amendment right to arms as simply one of the many individual rights guarantees contained in the Bill of Rights.