Northern Kentucky Law Review
Second Amendment Symposium: Rights in Conflict in the 1980ís, vol. 10, no. 1, 1982.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
SECOND AMENDMENT SURVEY
In recent years, assassination attempts and other gun-related crimes have increased remarkably. This has created a demand for legislation dealing with gun control. It is difficult to deal with this problem unless there is a clear understanding of the second amendment of the United States Constitution. The second amendment states: "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."1 This amendment is subject to two major interpretations. The view supported by most courts is that the right to bear arms is a collective right of the people to form a militia in order to protect themselves and their state.2 The opposing view is that the second amendment guarantees to each citizen an individual right to bear arms.3 In order to have gun control legislation in today's society, it must be determined whether such legislation would be violative of any guaranteed constitutional rights. Therefore, it is necessary to briefly review the historical origins of the second amendment, and the manner in which federal and state courts have interpreted and applied the second amendment.
II. HISTORICAL BACKGROUND
Gun control is not a concept that has been recently developed in the United States. Because the United States has often looked to the English common law for guidance in determining legal issues, the history of English gun control measures must be briefly explored.
The Statute of Northampton4 was enacted during the reign of King Edward III. This statute prohibited persons from carrying weapons in public places.5 The Statute was narrowly interpreted in [Page 156] the seventeenth century as requiring proof that the arms were intended to terrify the King and his subjects.6
Later in the seventeenth century, during the reign of King Charles II, only persons who owned land valued at one hundred pounds or more were permitted to have guns.7 Later events, such as the disarming of certain, social8 and economic classes, led to the Glorious Revolution of 1688 and the enactment of the English Bill of Rights, the latter giving the suppressed Protestants the right to bear arms.9
Sir William Blackstone believed it clear that the common law was in favor of the individual citizen's right to possess and carry arms for both an individual and collective defense.10 He stated that "having and using arms for self-preservation and defense" was among the "absolute rights of individuals."11
In the United States, before the ratification of the Constitution, there were statutes that required persons to carry and bear arms. The first statute of this nature was found in Virginia in 1623. It stated "no man go or send abroad without a sufficient party will [sic] armed," and that "men go not to work without their arms (and a centinell upon them)."13 In 1658, a Virginia statute required "every man able to bear arms have in his- house a fixt gunn."14 Such statutes were introduced as a result of the fears of many people in this new country. The land was wild and unknown, and there was always the possibility of intervention by a foreign country.
The second amendment was adopted as part of the Bill of Rights to the Federal Constitution in 1791. When the Constitution was presented to the states for ratification, several states criticized the [Page 157] document because it failed to include a discussion of several basic human rights which had been provided for in some state constitutions drafted earlier.16 This protest caused Congress to draft th& Bill of Rights, which was subsequently ratified by the states.17
The first state to draft a 'right to bear arms' bill was Virginia.18 The bill stated that "a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; [and the military should be subordinate to] and governed by, the civil power."19 It is believed that this bill had a major influence upon the drafting of other state provisions, and that James Madison's version of the current second amendment originated from it.20
For many years there was no need for an extensive interpretation of the second amendment. Guns were extremely important possessions for a majority of people in America. Guns were needed to provide food for families as well as to protect them from wild -animals and Indians.21 Another concern of the people was the possibility that the Federal Government would neglect to form a militia, thus endangering their newly won freedom.22 Also, after experiencing the British conflict, people were wary of the power of an armed governmental body.23 These factors caused the "framers of the Constitution to formulate carefully their concept of the militia and of the role of firearms in the national defense."24
The second amendment has become an object of many different interpretations. It is difficult to perceive which interpretation the framers of the Constitution bad in mind when the second amendment was ratified. A review of the decisions handed down by the United States Supreme Court will show how the second amendment has been interpreted and applied by the judicial branch of our government. [Page 158]
III. SUPREME COURT DECISIONS
When the issue of gun control surfaces, the United States Supreme Court is looked to for direction. While the Court has heard only four principal cases dealing with the second amendment,25 a review of those opinions can be helpful in determining which direction the Court may take if it is called upon to deal with the issue in the future.
The first Supreme Court case interpreting the second amendment was U.S. v. Cruikshank.26 In Cruikshank, a civil rights action alleging thirty-two violations of the Enforcement Act27 had been brought against a group of Southern whites. It was alleged by plaintiffs that, in enforcing the Act, the defendants intended to hinder and prevent the plaintiffs' exercise of the "right to keep and bear arms for a lawful purpose."28
The Court did not explore the meaning of the second amendment in depth, but did state that "the right to keep and bear arms for a lawful purpose" was not an absolute right guaranteed by the Constitution.29 Rather, the Court held that the second amendment merely prevented Congress from infringing upon the right to bear arms. The Court stated that the second amendment had no other purpose than to limit the powers of national government.30
The next Supreme Court case to deal with the second amendment was Presser v. Illinois.31 Presser belonged to a society called "Lehr und Wehr Verein,"32 formed for the purpose of "improving the mental and bodily condition of its members, so as to qualify them for the duties of citizens of a republic," and to encourage its members to "obtain, in meetings of the association, a knowledge of our laws and political economy, and . . . be instructed in military [Page 159] . . . exercises . . . . "33 This violated the Military Code of Illinois, which required a license from the governor for any group, other than the state militia or troops of the United States, to drill or parade with arms in the streets of that state.34 Presser alleged that such a provision violated his second amendment rights.
Again, the Court, not deeply exploring the meaning of the second amendment, held, although in a different context, that the second amendment limited the power of Congress, not the power of the states.35 The Court further stated that the question whether a state may prohibit its citizens from bearing arms for other than military purposes did not need to be addressed at that time.36
The Supreme Court again discussed aspects of the second amendment in the case of Miller v. Texas.37 This case was heard during the latter 1800's, a time when gunfights and the wild west comes to mind rather than an issue related to the second amendment. Miller was tried and convicted on murder charges in the state of Texas. On appeal, he claimed that his second amendment rights had been infringed by a state statute which prohibited the carrying of weapons in public.38 The lower court had instructed the jury "if defendant was on a public street carrying a pistol, he was violating the law . . . ."39 Miller claimed that the statute and the jury instruction conflicted with his second amendment right and his rights as a United States citizen .40
The Court found that there had been no infringement of Miller's second amendment right.41 The Court reiterated the holding in Cruikshank by stating that the second amendment does not restrict state powers but is merely a limitation upon federal powers.42
The most recent second amendment case heard by the Supreme Court is United States v. Miller.43 Jack Miller and Frank Layton were charged with violating the National Firearms Act.44 They [Page 160] transported a shotgun, having a barrel less than eighteen inches in length, across state boundaries without registering the weapon or acquiring a stamp-affixed written order, as required by the Act.45 (The National Firearms Act of 1934 also provided for a tax on both the transfer 46 and manufacture 47 of firearms and further required that firearms dealers, manufacturers, and importers register with the Federal Government.48)
The district court held that the Act violated the second amendment.49 the case went on to the Supreme Court on direct appeal and was reversed. This time the Court took a different approach in treating the second amendment issue. The Court discussed the historical concept of militia and stated:
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.50
While the Court has discussed various aspects of the second amendment, the issue of whether an individual has a guaranteed right to bear arms under the second amendment has never been directly faced. Because of the present controversies surrounding this issue, undoubtedly the Court will soon be called upon to resolve it. The Court may use the preceding cases as a foundation, but eventually will have to squarely address the issue and define the scope of the right protected by the second amendment.
IV. OTHER FEDERAL AND STATE DECISIONS
It is difficult to assess the value of state court holdings because, in the absence of a binding federal provision, the states are bound by their own constitutions. So, although these decisions are not controlling, they are important because they deal with provisions of state constitutions that are similar to the second amendment [Page 161] of the United States Constitution."
The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth.52 The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, . . ."53 This holding was unique because it stated that the right to bear arms is absolute and unqualified.54 In contrast to this, all states currently regulate the possession and use of firearms to some extent.55
An early decision which influenced subsequent state decisions was that of Aymette v. State.56 The Supreme Court of Tennessee held that the right to bear arms was a right of the people to protect themselves against the excesses of an oppressive government.57 The court stated that "the citizens have the 'unqualified right to keep the weapon . . . but the right to bear arms is not of the unqualified character.58
In the 1800's, most state courts were divided on the issue of the right to bear arms.59 After the Supreme Court stated in Cruikshank that there was no guaranteed constitutional right to bear arms, most jurisdictions, whether accurate or not, have interpret ed respective constitutional provisions, as well as the second amendment, to mean that an individual right to bear arms does not exist.60
It has been held that the second amendment was not adopted with the individual's right in mind, but as a method for the states to maintain a militia to protect against encroachments by the Federal Government.61 State regulation of the acquisition or possession of guns has been frequently characterized as a reasonable ex- [Page 162] ercise of the police power,62 thus allowing courts to uphold statutes63 prohibiting the carrying of a -concealed weapon, the possession of weapons by persons such as convicted felons,64 and to validate laws requiring gun purchasers to obtain identification cards after being investigated, fingerprinted, and approved by state officials.65
Most court decisions have paralleled the Supreme Court decisions. With few exceptions, the state courts have taken one of three positions in upholding legislation against second amendment claims: (1) the amendment applies to the Federal Government, but not to the states,66 (2) the right is not absolute, and therefore subject to regulation,67 or (3) the amendment guarantees a collective right rather than an individual right.68
The controversy surrounding the interpretation of the second amendment is destined to be ruled upon soon by the Supreme Court. No matter what interpretation is handed down, a large number, of people, will oppose it. In order to uphold gun control measures, the Court can choose to find that the right is not an individual one, follow the holding in Cruikshank and defer the gun control issue to the communities and states, or simply find that the right is not absolute. The Court realizes that something needs to be done about our country's growing gun-related problems, and the above-mentioned alternatives are the only solutions for which the Court could find supporting precedents at this time.
DARELL R. PIERCE
1. U.S. CONST. amends. II.
2. See United States v. Johnson, 497 F.2d 548 (4th Cir. 1974) (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 ... of a well regulated militia."'); United States v. Day, 476 F.2d 562 (6th Cir. 1973); Stevens v. United States, 440 F.2d 144 (6th Cir. 1971); City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905).
3. See Robertson v. Baldwin, 165 U.S. 275 (1897); State v. Reid, I Ala. 612 (1840); Davis v. State, 146 So. 2d 892 (Fla. 1962); State v. Keet, 269 Mo. 206, 190 S.W. 573 (1916); City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737 (1971) (an ordinance which denies any person the constitutionally guaranteed right to bear arms is void).
4. 2 Edw. 3, ch. 3 (1328).
5. Caplan, Restoring the Balance: The Second Amendment Revisited. 5 FORDHAM URB. L.J. 31, 32 (1976).
7. Id. at 33. See Aymette v. State, 21 Tenn. (2 Hum.) 154, 155 (1840).
8. Protestants were disarmed by the government while Catholics were afforded the right to bear arms.
9. See Caplan, supra note 5, at 33.
10. 1 W. BLACKSTONE, COMMENTARIES 144.
11. Id. at 124.
12. Levin, The Right to Bear Arms: The Development of the American Experience, 48 CHI.-KENT L. REV. 148 (1971).
13. Acts of the Grand Assembly 1623-1624, Nos. 24 and 25.
14. Acts of Grand Assembly 1658-59, Act 25. See also Levin, supra note 12.
15. BUR. OF ROLLS & LIBRARY, U.S. DEPT. OF STATE, II DOCUMENTARY HISTORY OF THE CONSTITUTION 321-24 (1894). See Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 CATH. U.L. REV. 53, 55 (1966).
16. See Rohner, supra note 15, at 55.
18. Id. at 56.
19. SOURCES OF OUR LIBERTIES 312 (R. Perry & J. Cooper, eds. 1959).
20. Rohner, supra note 15, at 56.
21. Id. at 57.
22. See Caplan, supra note 5, at 37.
25. Note, Gun Control. Is it a Legal and Effective Means of Controlling Firearms in the United States? 21 WASHBURN L.J. 244, 249 (1982).
26. 92 U.S. 542 (1875).
27. Enforcement Act, ch. 114, 16 Stat. 140 (1870).
28. 92 U.S. at 545.
29. Id. at 553.
30. See State v. Shelby, 90 Mo. 302, 2 S.W. 468 (1886) (restriction upon national government only); State v. Keet, 269 Mo. 206, 190 S.W. 573 (1916) (amendment does not apply to states); State v. Amos, 343 So.2d 166 (La. 1977) (amendment not incorporated into fourteenth amendment); Onderdonk v. Handgun Permit Review Bd. of Dep't of Pub. Safety & Correctional Serv., 44 Md. App. 132, 407 A.2d 763 (1979).
31. 116 U.S. 252 (1886).
32. Id. at 254. (A translation into English would roughly make this a "Weapons Instruction Society.")
34 Id. at 253.
35. Id. at 257. See supra note 28, at 553.
36. 116 U.S. at 258.
37. 153 U.S. 535 (1894).
41. Id. at 538.
42. Id., see supra note 28, at 553.
43. 307 U.S. 174 (1939).
44. National Firearms Act, ch. 757, 48 Stat. 1236-40 (1934) (current version at 26 U.S.C. 1 5801 et. seq. (1976)).
45. United States v. Miller, 307 U.S. 174, 175 (1939).
46. National Firearms Act, ch. 757, 48 Stat. 1237 (1934) (current section at 26 U.S.C. 5811 (1976)).
49. 307 U.S. at 177.
50. Id. at 178.
51. Feller & Gotting, The Second Amendment: A Second Look, 61 NW. U.L. Rev. 46, 62 (1966).
52. 12 Ky. (I Litt.) 80 (1822).
53. Id. at 91.
54. See Levin, supra note 12, at 160.
65. Feller & Gotting, supra note 51, at 63.
56. 21 Tenn. (2 Hum.) 154 (1840).
57. Levin, supra note 12, at 160.
58. 21 Tenn. (2 Hum.) at 158.
59. Note, supra note 25, at 252.
60. Id. at 253. See Burton v. Sills, 53 N.J. 86, 248 A.2d 521, appeal dismissed, 394 U.S. 812 (1968) (the amendment refers to a collective right only); State v. Rosenthal, 75 Vt. 295, 65 A. 610 (1903); People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979) (right to bear arms can be restricted by state's valid exercise of its police power); and Davis v. State, 146 So. 2d 892 (Fla. 1962).
61. Burton v. Sills, 53 N.J. 86, 248 A.2d 521, appeal dismissed, 394 U.S. 812 (1968).
62. See Gaivan v. Superior Court of San Francisco, 70 Cal. 2d 851, 76 Cal. Rptr. 642, 452 P.2d 930 (1969) (regulation of firearms is a valid police function); State v. Robinson, 251 A.2d 552 (Del. 1969); People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931).
63. See, e.g., Herring v. State, 371 S.W.2d 884 (Tex. Crim. App. 1963); Pierce v. State, 42 Okla. Crim. 272, 275 P. 393 (1929).
64. See Jackson v. State, 37 Ala. App, 335, 68 So.2d 850 (1953), cert. denied, 260 Ala. 698, 68 So.2d 853 (1953), and State v. Bolin, 200 Kan. 369, 436 P.2d 978 (1968).
65. Burton v. Sills, 53 N.J. 86, 249 A.2d 521, appeal dismissed, 394 U.S. 812 (1968).
66. See supra note 28, at 553.
67. See supra notes 60-63.
68. See supra note 2.