Firearm case law in the United States

	Slow down there, sparky. This page may talk about the law, but don't forget: Gunsopedia is NOT a lawyer!

U.S. Firearms Legal Topics
Assault weapons ban
ATF (law enforcement)
Brady Handgun Act
Concealed carry
Federal Firearms License
Firearm case law
Firearm Owners Protection Act
Gun Control Act of 1968
Gun laws in the U.S. — by state
Gun laws in the U.S. — federal
Gun politics in the U.S.
National Firearms Act
Open carry
Second Amendment
Straw purchase
Sullivan Act (New York)
Violent Crime Control Act

Firearm case law, in the history of the United States, has been directly addressed by the U.S. Supreme Court seven times. These cases deal with Second Amendment issues. The Second Amendment to the United States Constitution is part of the Bill of Rights. It states 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.

The interpretation of the Second Amendment has only been addressed by the Supreme Court on a relatively narrow scope, and seldom. However, the Amendment has more commonly been addressed by lower courts, sometimes with conflicting results.

From the ratified Bill of Rights in 1791 until 1905, some U.S. State courts understood a right to bear arms that belonged to individuals and not just to members of militias (whether of organized, select militia units or even of the citizen militia).

In 1905 the Kansas Supreme Court, produced a ruling in Salina v. Blaksley which has been described as "utterly lacking in logic or precedent". The court interpreted their state constitution to mean the state right to bear arms was a collective, rather than individual, right, despite the U.S. Supreme Court's Presser v. Illinois ruling otherwise in 1886. Modern analysis of the context of the Second Amendment has begun to reverse the Salina viewpoint, and brings the interpretation more in line with the time of its conception . One key argument given is, it is unreasonable to believe The People mentioned in the Second Amendment should fundamentally be different from The People in other parts of the Bill of Rights. It is generally described as containing a declaration of the rights of individuals, not groups. However, there remains much conflict as to the proper interpretation within the courts, largely because the Supreme Court has always refused, and continues to refuse, to hear a case where the central issue is interpreting individual vs. collective rights within the context of the Second Amendment and the rest of the Bill of Rights.

United States Supreme Court cases

Supreme Court cases relating directly with the Second Amendment

• United States v. Cruikshank (1876) - A post Civil War era case relating to the Ku Klux Klan depriving freed slaves basic rights such as freedom of assembly and to bear arms. The court ruled the First and Second Amendments "was not intended to limit the powers of the State governments in respect to their own citizens" and "has no other effect than to restrict the powers of the national government," respectively. In summary, it ruled the federal government could not file charges against citizens in federal court regarding violations of other citizens' constitutional rights. It was up to the states to protect the fundamental rights of its citizens when their rights were abridged by other citizens.
• Presser v. Illinois (1886) - One of only two post-Civil War 19th Century U.S. Supreme Court cases to address the Second amendment, the sole other one being the above-mentioned U.S. v. Cruikshank. This second post-Civil War era case related to the meaning of the Second Amendment rights relating to militias and individuals. The court ruled the Second Amendment right was a right of individuals, not militias, and was not a right to form or belong to a militia, but related to an individual right to bear arms for the good of the United States, who could serve as members of a militia upon being called up by the Government in time of collective need. In essence, it declared, although individuals have the right to keep and bear arms, a state law prohibiting common citizens from forming personal military organizations, and drilling or parading, is still constitutional because prohibiting such personal military formations and parades does not limit a personal right to keep and bear arms:

  "We think it clear that there are no sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms."

The Court also noted that the 2nd Amendment only restrained the federal government from regulating gun ownership, not the individual states:

"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."

• United States v. Miller (1939) - The only Supreme Court case which was directly related to the issues of the Second Amendment at the heart of the case. The court stated in part:

  "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... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."'

... The Court also stated:

'The Constitution as originally adopted granted to the Congress power - "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Supreme Court cases mentioning the Second Amendment

• Dred Scott v. Sandford (1857) - The court ruled Scott did not enjoy the protection of the Bill of Rights because of his racial background. However, in its ruling, it implies all free men do have the right to bear arms by indicating what would happen if he was indeed afforded full protection:

  "It would give to persons of the negro race, ... the right to enter every other State whenever they pleased, ... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

• Duncan v. Louisiana (1968) - A Supreme Court case which incorporated the Sixth Amendment right to a jury trial at the state level as required by the Fourteenth Amendment. In the court's written opinion, the court used a statement by Senator Howard, who introduced the Fourteenth Amendment, to help validate their ruling that the Bill of Rights as a result of the Fourteenth Amendment forces states, and not just the federal government, to protect the same individual rights enumerated in the Bill of Rights:

  "Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution ...the personal rights guarantied 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 [391 U.S. 145, 167] to each and all the people; the right to keep and to bear arms..."

• Lewis v. United States (1980) - Ruling Congress may prohibit felons from possessing firearms:

  "This Court has recognized repeatedly that a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm."

• U.S. v. Verdugo-Urquidez (1990) A case dealing with nonresident aliens and the Fourth Amendment, but led to a discussion of who are "the People" when referred to in the Constitution:

  "[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 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, 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 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. "

Circuit Court cases relating directly to the Second Amendment

Fifth Circuit Court of Appeals

• United States v. Emerson (2001) - Fifth Circuit Court of Appeals ruling the Second Amendment does apply to individual rights, not to collective rights, to bear arms. The court partly stated:

  "There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words 'the people' have a different connotation within the Second Amendment than when employed elsewhere in the Constitution."

  We hold . . . that it protects the rights of individuals, including those not . . . actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms . . . that are suitable as personal, individual weapons."

Ninth Circuit Court of Appeals

• Silveira v. Lockyer (2002) - Ninth Circuit Court of Appeals ruling the Second Amendment does not apply to individual rights:

  "Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision."

Tenth Circuit Court of Appeals

• United States v. Haney (2001) - Tenth Circuit Court of Appeals ruling the Second Amendment only applies to a well regulated militia, not to individuals. In this case, Mr. Haney constructed two machine guns and voluntarily turned himself into the police and allowed a search of his premises in order to challenge the machine gun ban 922(o) on Second Amendment constitutional grounds. However, his circuit court ruled:

  "we hold that a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia. This is simply a straightforward reading of the text of the Second Amendment."

• United States v. Baer (2000) - Tenth Circuit Court of Appeals rejected a "time-worn" Second Amendment challenge to the federal felon-in-possession law, noting:

  "the circuits have consistently upheld the constitutionality of federal weapons regulations like [this one] absent evidence that they in any way affect the maintenance of a well regulated militia."

• United States v. Oakes (1977) - Tenth Circuit Court of Appeals court ruled:

  "we rejected a Second Amendment challenge to the federal law criminalizing possession of an unregistered machinegun, 26 U.S.C. § 5861(d). We found no evidence that the firearm in question was connected with a militia, even though the defendant was nominally a member of the Kansas militia and the "Posse Comitatus," a militia-type organization registered with the state..."

District of Columbia Circuit Court of Appeals

• Parker, et al. v. District of Columbia (2007) - In finding the District of Columbia's handgun ban unconstitutional, the D.C. Circuit Court of Appeals ruled:

  "To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia."

State Supreme Court rulings

• Salina v. Blaksley (1905) - Kansas Supreme Court, addresses the right of militia and keeping and bearing arms in Kansas. It ruled the Kansas Bill of Rights provisions only applied to members of an organized militia or members of the military. Its final line concludes:

  "The defendant was not a member of an organized militia, nor of any other military organization provided for by law, and was therefore not within the provision of the Bill of Rights, and was not protected by its terms."

Court rulings relating to the 1986 Firearm Owners Protection Act

• Farmer v. Higgins (1990) - Eleventh Circuit Court of Appeals ruling the ATF does not need to register new machineguns for private ownership under the exception of 18 USC 922(o)(A)(1).
• United States v. Warner (1993) - Tenth Circuit Court of Appeals ruling regarding Mr. Warner, who was caught in Utah with a machine gun and convicted on 922(o), possession of a machine gun. Mr. Warner appealed on the basis the Utah constitution allows its citizens to bear arms, and therefore he is exempt based on 922(o)(2)(A), "under authority of the State." However, the court overruled this, citing the Farmer case saying machine guns were not meant to be in private hands, and although the Utah law gives permission to own automatic firearms, it did not grant him authority.
• United States v. Rock Island Armory (1991) - United States District Court ruling one cannot be prosecuted for 1934 National Firearms Act violations for machineguns produced after 1986:

  "...since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional."

Firearm laws challenged on the Commerce Clause

• United States v. Lopez (1995) - The first modern Supreme Court case to set limit on Congress' power under the Commerce Clause.
• United States v. Stewart (2005) - A case regarding the legality of homemade machine guns. The Ninth Circuit Court of Appeals had ruled the Federal government did not have power under the commerce clause to regulate possession of homemade machine guns: "...a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is highly attenuated." However, citing the results of the Ashcroft v. Raich case (June 5, 2005), the Supreme Court decided not to hear the case but rather sent it back to the Circuit Court with guidance based on the Ashcroft v. Raich results, which effectively overturned the 9th Circuit. The ruling effectively said Congress can use the commerce clause to ban homemade or homegrown artifacts such as marijuana or machine guns, even though none of their components were ever, nor ever will be, transferred, sold, or involved in any sort of commerce transaction.
• United States v. Rybar (1996) - A case nearly identical to Stewart, but preceding it by 9 years. In it, the Third Circuit Court of Appeals ruled Congress did have the power to regulate possession of homemade machine guns under the commerce clause, later contradicted by the Ninth Circuit Court of Appeals in 2005, but ultimately reaffirmed by the Supreme Court. The Third Circuit Court of Appeals made this decision 2-1, with future Supreme Court Justice Samuel Alito in dissent.

External links

• Arms and the law - A web site with review and analysis of firearm case law
• NRA list of firearm court cases
• Guncite - List of Supreme Court cases related to the Second Amendment on Guncite
• Supreme Court cases - Comprehensive list of Supreme Court cases which deal with firearms
• State Supreme Court cases - Comprehensive list of State Court cases which deal with firearms