2nd Amendment Rights

Current Issues

In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects.

United States v. Cruikshank, 92 U.S. 542 (1876) was the first case in which the Supreme Court had the opportunity to interpret the Second Amendment. The Court recognized that the right of the people to keep and bear arms was a right which existed prior to the Constitution when it stated that such a right "is not a right granted by the Constitution...neither is it in any manner dependent upon that instrument for its existence." The Court held, however, that because the right to keep and bear arms existed independent of the Constitution, and the Second Amendment guaranteed only that the right shall not be infringed by Congress, the federal government had no power to punish a violation of the right by a private individual; rather, citizens had "to look for their protection against any violation by their fellow-citizens" of their right to keep and bear arms to the police power of the state. The second amendment declares that it shall not be infringed; but this, as has been seen, simply means that it shall not be infringed by Congress.

Presser v. Illinois, 116 U.S. 252 (1886). Although the Supreme Court affirmed the holding in Cruikshank that the Second Amendment, standing alone, applied only to action by the federal government, it nonetheless found the states without power to

infringe upon the right to keep and bear arms, holding that "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public securety and disable the people from performing their duty to the general government."

United States v. Miller 307 U.S. 174 (1939) is the Supreme Court's fullest discussion of the Second Amendment. In this case, the court rejected a Second Amendment challenge to a federal law prohibiting the interstate transportation of sawed-off shotguns "in the absence of any evidence" as neither the appellant nor the appellant's attorney were present at the proceedings, while holding that the “obvious purpose” of the Amendment was to “assure the continuation and render possible the effectiveness” of the state militia and it “must be interpreted and applied with that end in view.” Jack Miller and Frank Layton were indicted for transporting an unregistered short-barreled (sawed-off) shotgun across state lines, in violation of the National Firearms Act of 1934, as the result of a Federal raid searching for illegal whiskey that found only sugar. Layton made a plea bargain, but Miller moved to dismiss the case on the grounds that the National Firearms Act violated his Second Amendment right to bear arms. The District Court agreed with Miller and quashed his indictment, and this decision was in turn appealed to the Supreme Court, which reversed the ruling of the lower court. In United States v. Miller, the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that ''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 with that end in view.'' The significance of the militia, the Court continued, was that it was composed of ''civilians primarily, soldiers on occasion.'' It was upon this force that the States could rely for defense and securing of the laws, on a force that ''comprised all males physically capable of acting in concert for the common defense,'' who, ''when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.'' Therefore, ''in the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 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.''

Legal Analysis

The right