Introduction Miller was subject to two possible interpretations. One, that the Second Amendment is an individual right, but that the right only extends to weapons commonly used in militias (the defendants in Miller were transporting sawed-off shotguns). The second--broader--view of Miller is that the Amendment guarantees no rights to individuals at all, and the defendants lost the case as soon as it was obvious that they were not members of a state militia. There is also a second open question concerning the Second Amendment: If it does create a right of individuals to own firearms, is the right enforceable against state regulation as well as against federal regulation? In 1876, the Supreme Court said the right--if it existed--was enforceable only against the federal government, but there's been a wholesale incorporation of Bill of Rights provisions into the 14th Amendment since then, and it's not clear that the Court would come to the same conclusion today. In Quilici vs Morton Grove, a case involving a challenge to a Chicago suburb's ban on the possession of handguns, the Seventh Circuit concluded that the right was not enforceable against the states. The Second Circuit, in its 2009 decision in Maloney v Cuomo, also concluded that the Second Amendment does not apply to state firearms bans. The Second Circuit said that the U. S. Supreme Court's 1886 Presser v Illinois decision, holding the Second Amendment limits only the federal government, was still good law until overturned by the High Court. The U. S. Supreme Court is likely to finally decide the issue, and most commentators are betting the Court will reach a different conclusion than did the Seventh and Second Circuits. In 2008, the
U. S. Supreme Court, in District of
Columbia vs. Heller,
struck down a Washington, D.C. ban on
individuals having handguns in their homes. Writing for a 5 to 4
majority, Justice Scalia found the right to bear arms to be an
individual right consistent with the overriding purpose of the 2nd
Amendment, to maintain strong state militias. Scalia wrote that
it was essential that the operative clause be consistent with the
prefatory clause, but that the prefatory clause did not limit the
operative clause. The Court easily found the D. C. law to violate
the 2nd Amendment's command, but refused to announce a standard of
review to apply in future challenges to gun regulations. The
Court did say that its decision should not "cast doubt" on laws
restricting gun ownership of felons or the mentally ill, and that bands
on especially dangerous or unusual weapons would most likely also be
upheld. In the 2008 presidential campaign, both major candidates
said that they approved of the Court's decision. Cases
United
States vs. Miller (U.S. 1939)
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2. If the Second Amendment does create an individual right, how broad is the right? Does it include the right to possess arms that would be useful to a militia today--hand grenades, rocket launchers, etc.? Or does it create only a right to possess arms that would have been used by a militia in 1791--muskets? Or is the right answer somewhere between these extremes? 3. The Second Amendment speaks of the right to bear arms. Does this suggest, for example, that there is no right to possess weapons that could not be carried, such as cannons? 4. If the underlying concern that inspired the Second Amendment--fear of an abusive federal government oppressing states and their citizens--no longer exists, should that affect how we interpret the Amendment? 5. What is the argument for choosing what provisions of the Bill of Rights we will give full effect? 6. If the test for whether a provision of the Bill of Rights is incorporated into the 14th Amendment is whether the right in question is "fundamental to the American scheme of justice" what conclusion should we come to with respect to the right to keep and bear arms? 7. Which of the following regulations of firearms is constitutional?: (1) an age restriction, (2) a four-day waiting period for purchase of a firearm, (3) a ban on the carrying of concealed weapons. 8. The Court in District of Columbia v Heller announces that there is an individual right to keep and bear arms for self-defense, but says that this right extends only to weapons in "common use" for such purposes. If many people began using machine guns for self-defense, will the weapons covered by the 2nd Amendment extend to include them? 9. The Court in D. C. v Heller suggests that concealed carry laws and laws prohibiting guns in public buildings are constitutional. Why is that so? What test should the court use to evaluate future gun regulations--strict scrutiny? intermediate scrutiny? an "undue burden" test? ![]() The Morton Grove trustees that voted for gun ban in their Chicago suburb
Sources on the Second Amendment (UCLA Law) Second Amendment Foundation Citizen's Committee for the Right to Keep Arms National Rifle Association Handgun Control, Inc. |