COURT CASES
BARRON v. CITY OF BALTIMORE, 32 U.S. 243 (1833)
Barron established that the first eight amendments were only a restriction on the federal government. This decision upset a good many people and ultimately led to the passage of the Fourteenth Amendment in 1868. Though it was a Fifth Amendment case, Barron recognized that various levels of government existed. Since the Constitution is considered the supreme law of the land, it was asserted that it applied limitations on lower levels of government.
"The plaintiff in error contends, that it comes within that clause in the fifth amendment to the constitution, which inhibits the taking of private property for public use, without just compensation. He insists, that this amendment being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States."
The court replied that such was not the case.
"The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.
If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective [32 U.S. 243, 248] governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest."
In a sweeping precedent, the court went on to say that the amendments to the Constitution were no more than restrictions on the federal level of government.
"In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them."
U S v. CRUIKSHANK, 92 U.S. 542 (1875)
This case was about a band of people who had the goal of intimidating and controlling Blacks. The court found that in holding with Barron, these people could not be found in violation of any of the Bill of Rights, since these protected rights from federal violation, but not from violations by individuals. A total of 32 counts were involved, but only 16 were considered by the Supreme Court. Of these 16, there were 8 for various counts of "band[ing] together" and 8 identical counts except the "combine, conspire, and confederate together" were used. Of these 16 counts, 2 and 10 concern the Second Amendment, the rest deal with other amendments.
In addressing counts 1 and 9, the court cited Barron and held the same way.
"The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone."
The court also made an important statement regarding the First Amendment.
"The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States."
The right to assemble was not created by the amendment! This right pre-dates the Constitution of the US. This is important as we will see something similar later.
In addressing counts 2 and 10, the court again holds with Barron that the Second Amendment is a limitation only on the federal government.
"The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States.
So the Second only restricts the federal government from infringing the right "to bear arms for a lawful purpose". Look at what the court also said. This right also pre-dates the Constitution! It is also interesting to note that the court does not address the conflict of "bearing arms for a lawful purpose" and the issue raised today that the right to bear arms is dependent upon a relationship with the militia. The way the court treats the phrase used, it would seem they agree with right as written there, "for a lawful purpose". They even go so far as to say that the right so written is protected by the Second against federal infringement. Here then is one of the earliest refutations of the assertion that the right to arms only exists or is protected when there is a relationship with the militia.
Cruikshank does consider the Fourteenth Amendment, but not in extending the protection of any rights contained in the Bill of Rights. This process, known as incorporation was not addressed in this case. The court still recognizes various levels of government and just as it was held that the amendments to the Constitution were restrictions on the federal government and not states or individuals, the court held that the applicable sections of the Fourteenth apply only to the state level, not the individual.
"The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another...The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing [92 U.S. 542, 555] to the rights which one citizen has under the Constitution against another."
PRESSER v. STATE OF ILLINOIS, 116 U.S. 252 (1886)
Presser dealt with whether the Second protected a group of men's right to drill and parade with arms within town and cities. It was decided that drilling and parading with arms as a group was not protected by the Second. It was also held that because this right was not protected from federal regulation, it could not be extended via the Fourteenth Amendment as protection from state regulation. Basically, they said you couldn't extend that which does not exist. Often times, people will cite this case as a denial of incorporation of the Second with the Fourteenth. It does not set that precedent. It merely says that the Second did not apply, so incorporation could not be considered.
Illinois code 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. It was contested that these sections violated the Second Amendment. The court said that they did not.
"We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms."
Citing both Cruikshank and Barron, the court once again said that the Bill of Rights was a limitation on the federal government and not the state.
"But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542, 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.' See, also, Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819;Com. v. Purchase, 2 Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455."
So the Second Amendment is not a protection on groups of men coming together in a military type unit and drilling or parading with arms and when considered alone is still only a restriction on the federal government. The first part of this deals yet another set back for the "collective rights" theory, for here was a collective of individuals with no right as a collective to drill or parade with arms!
The court went on to make another statement regarding the Second.
"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as 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. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect."
The court has just come out and said that everyone able to bear arms is a part of the militia! One question arising from this passage concerns the statement, "so as 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." Does this mean that a state cannot prohibit people from having arms if their intent is to eliminate this resource? Or does it mean that they cannot do so if the result is such a deprivation? A clue can be found when they state, "But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect." The use of the word "effect" (syn. "result") would tend to support the latter view; a state cannot prohibit people from having arms if the result is such a deprivation.
Yet another issue dealt with by the court is the claim that the Fourteenth Amendment extends the limitations placed on the federal government by the Bill of Rights to the state level. The court would seem to agree with the premise, but not the application.
"The plaintiff in error next insists that the sections of the Military Code of Illinois under which he was indicted are an invasion of that clause of the first section of the fourteenth amendment to the constitution of the United States which declares: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' It is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect. A state may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of the United States."
So they do agree with the idea presented, which will later be known as incorporation. Now they ask, which right (privilege or immunity) of a US citizen has been infringed?
"The inquiry is therefore pertinent, what privilege or immunity of a citizen of the United States is abridged by sections 5 and 6 of article 11 of the Military Code of Illinois?? The inquiry is therefore pertinent, what privilege or immunity of a citizen of the United States is abridged by sections 5 and 6 of article 11 of the Military Code of Illinois?"
The answer is that there was no such privilege or immunity being infringed, because the Second protects the individuals right to keep and bear arms for a lawful purpose, it does not protect groups abilities to parade or drill with arms.
"For, as was said by this court in U. S. v. Cruikshank, 92 U.S. 542, 551, 560 S., the government of the United States, although it is 'within the scope of its powers supreme and above the states,' 'can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction.' 'All that cannot be so granted or so secured are left to the exclusive protection of the state.' [116 U.S. 252, 267] We have not been referred to any statute of the United States which confers upon the plaintiff in error the privilege which he asserts."
In a rare step, the court actively seeks a privilege or immunity that would be violated. This is rare because the jurisprudence (rules of conduct) of the court would normally forbid such a practice. If has not been presented, it cannot be ruled on.
"The only clause in the constitution which, upon any pretense, could be said to have any relation whatever to his right to associate with others as a military company, is found in the first amendment, which declares that 'congress shall make no laws ... abridging ... the right of the people peaceably to assemble and to petition the government for a redress of grievances.' This is a right which it was held in U. S. v. Cruikshank, above cited, was an attribute of national citizenship, and, as such, under the protection of, and guarantied by, the United States."
The court continues by stating that the purpose of assembly is to petition the government (a protest march or town meeting for example). It does not cover assembly for other purposes.
"But it was held in the same case that the right peaceably to assemble was not protected by the clause referred to, unless the purpose of the assembly was to petition the government for a redress of grievances. The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship."
The court says there is no protection for groups drilling and parading with arms.
"The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject."
Some people have pointed to the differences between rights, and privileges and immunities as the deciding factor in this part of the case. This is not only insupportable, but can be disproved by the court's opinion itself. They claim that "rights" pre-date the Constitution, whereas the government grants "privileges and immunities". They say that because the court refers to protections of "privileges and immunities", as being extended by the Fourteenth, the "right" to arms cannot be extended. It is not a privilege or immunity, they contend, it is a right and as such cannot be extended.
The fact overlooked is that the court actively considered the right to assembly for extension and in deciding not to, they cited Cruikshank! Cruikshank held that the right to assemble and the right to arms both pre-dated the Constitution!
"The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference." ? Cruikshank on the right to assemble.
"'The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress." ? Cruikshank on the right to arms.
If the court can consider the right to assembly for incorporation, there is no reason it could not consider the right to arms. The differences in the term "right" and "privileges and immunities" do not act to prohibit incorporation.
UNITED STATES v. MILLER, 307 U.S. 174 (1939)
This case is the closest the Supreme Court has ever come to deciding the Second Amendment. Miller had been convicted of transporting an unregistered sawed-off shotgun across state lines. On appeal, it was decided that the NFA of 1934 was a violation of the Second Amendment. The Supreme Court overturned that ruling and implied that a weapon had to contribute to the efficacy of the militia to be protected by the Second. The court was not able to apply the test because Miller's side did not show up in court. Because of the lack of evidence, the court referred to judicial notice, meaning an established precedent of other court decisions, of which there were none. Because the court was unable to say that such a weapon had such a relationship, they did not finish their line of reasoning. Lower court cases after Miller have tried to figure out what the intent of the court was. Cases v. United States, 131 F.2d 916 (1st Cir. 1942) for example, held that the Supreme Court had not meant to establish a general rule and that virtually any weapon can contribute to the military. It instead ruled that it was the intended use of a weapon that is the over riding factor.
"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 of Tennessee, 2 Humph., Tenn., 154, 158." ? Miller
"However, we do not feet that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus." ? Cases
"From it it appears that on or about August 27, 1941, the appellant received into his possession and carried away ten rounds of ammunition, and that on the evening of August 30 of the same year he went to Annadale's Beach Club on Isla Verde in the municipality of Carolina, Puerto Rico, equipped with a .38 caliber Colt type revolver of Spanish make which, when some one turned out the lights, he used, apparently not wholly without effect, upon another patron of the place who in some way seems to have incurred his displeasure.? In fact, the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting, and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second Amendment was designed to foster as necessary to the security of a free state. We are of the view that, as applied to the appellant, the Federal Firearms Act does not conflict with the Second Amendment to the Constitution of the United States." - Cases
The court in Miller briefly presents a history of the militia and remands it back to the lower court for decision.
HAYNES v. UNITED STATES, 390 U.S. 85 (1968)
Haynes is important because it establishes that a convicted felon cannot be forced to register a firearm. Since a felon is not allowed to own a firearm, requiring them to register a firearm would be an admission of guilt and a violation of their Fifth Amendment right against self-incrimination. Two sections of Title 26 were involved. Section 5841 requires the registration of certain firearms. Section 5851 declares it to be unlawful to possess a firearm in violation of section 5841.
We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under 5841 or for possession of an unregistered firearm under 5851.
The purposes of most registration schemes are either 1) collecting taxes or 2) a method to keep arms from criminals. Most of the time, registration is advocated for the latter reason, though how this will accomplish its goal is not quite clear. If the latter were truly the goal, then this ruling would seem to make registration a moot point. After all, if a criminal cannot be required to register a firearm, how is registration going to keep firearms from criminals? Only the non-criminals are required to register their arms.
LEWIS v. UNITED STATES, 445 U.S. 95 (1980)
This case upheld the Omnibus Crime Control and Safe Streets Act (Gun Control Act of 1968) in its denial of a convicted felon's right to arms. It was held that conviction of a felony satisfied the "due process" clause of the Fifth Amendment.
PERPICH v. DEPARTMENT OF DEFENSE, 496 U.S. 334 (1990)
Perpich is important because it helps dispel the notion that the National Guard is the "well regulated Militia" of the Second.
Since 1933, federal law has provided that persons enlisting in a State National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army. The enlistees retain their status as State Guard members unless and until ordered to active federal duty and revert to state status upon being relieved from federal service?.
[Held:] (a) The unchallenged validity of the dual enlistment system means that Guard members lose their state status when called to active federal duty, and, if that duty is a training mission, the training is performed by the Army. During such periods, the second Militia Clause is no longer applicable. Pp. 347-349?.
When the Army made plans to invoke that authority by using National Guard units south of the Mexican border, Attorney General Wickersham expressed the opinion that the Militia Clauses precluded such use outside the Nation's borders.13 In response to that opinion and to the widening conflict in Europe, in 1916 Congress decided to "federalize" the National Guard.14 In addition to providing for greater federal control and federal funding of the Guard, the statute required every guardsman to take a dual oath - to support the Nation as well as the States and to obey the President as well as the Governor - and authorized the President to draft members of the Guard into federal service. The statute expressly provided that the Army of the United States should include not only "the Regular Army," but also "the National [496 U.S. 334, 344] Guard while in the service of the United States,"15 and that when drafted into federal service by the President, members of the Guard so drafted should "from the date of their draft, stand discharged from the militia, and shall from said date be subject to" the rules and regulations governing the Regular Army. 111, 39 Stat. 211?.
Notwithstanding the brief periods of federal service, the members of the State Guard unit continue to satisfy this description of a militia. In a sense, all of them now must keep three hats in their closets - a civilian hat, a state militia hat, and an army hat - only one of which is worn at any particular time. When the state militia hat is being worn, the "drilling and other exercises" referred to by the Illinois Supreme Court are performed pursuant to "the Authority of training the Militia according to the discipline prescribed by Congress," but when that hat is replaced by the federal hat, the second Militia Clause is no longer applicable?.
Moreover, [496 U.S. 334, 352] Congress has provided by statute that in addition to its National Guard, a State may provide and maintain at its own expense a defense force that is exempt from being drafted into the Armed Forces of the United States. See 32 U.S.C. 109(c). As long as that provision remains in effect, there is no basis for an argument that the federal statutory scheme deprives Minnesota of any constitutional entitlement to a separate militia of its own.25 [496 U.S. 334, 353]
So while the National Guard is a part of the militia when not in federal service, it is not considered the militia when called up, due to the dual enlistment system. If the states so desire, they can form a separate militia that is not part of the ready reserves for the military and cannot be called up by the President. This means that the National Guard is not the militia of the Second Amendment, though they may be part of it.
UNITED STATES v. VERDUGO-URQUIDEZ, 494 U.S. 259 (1990)
Verdugo has an interesting facet. Despite not being a Second Amendment case, in dicta it does mention it and sets a precedent that can affect it. It establishes that the term "people" in the First, Second, Fourth, Ninth, and Tenth Amendments is the same usage.
That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid an awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the 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 Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U. S. Const., Amdt. 1 ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble") (emphasis added); Art. I, section 2, cl. I ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904)(Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words "person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.
PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992)
This case is note worthy for one reason, it asserts that the Bill of Rights protects individual rights, a serious nail in the coffin of the "state's right" or "collective right" theories.
The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana 391 U.S. 145, 147-148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.
The court is discussing incorporation of the first eight amendments with the Fourteenth Amendment, extending restrictions imposed on the federal government to the state level. The court says that though it is tempting to say that the Fourteenth can only extend the rights in the first eight amendments, the court has never adopted this view. They also say that the first eight amendments guarantee individual rights against federal interference. The Second Amendment is one of those eight and therefore the right to arms must be an individual right.
PRINTZ V. US, 95-1478 and MACK V. US, 95-1503 (1997)
Aside from declaring part of the Brady Bill unconstitutional, Judge Thomas' concurrence establishes (in dicta) the fact that the Supreme Court has never directly or completely addressed the Second Amendment and that if they ever did, it could have profound affects upon laws concerning arms.
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. 1 If, however, the Second Amendment is read to confer 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. 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.
(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.
(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.
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