It’s the absolute truth that most people who favor tighter gun laws are completely clueless when it comes to guns. When you hear statist politicians and people in the media talking about “assault ammunition,” when they describe an AR-15 as a “high-powered rifle” and can’t tell you what a “barrel shroud” is, they demonstrate their profound ignorance about a subject that matters very much to many Americans.
Many people, both those who support the Second Amendment and those who want to subvert it, are also highly uninformed when it comes to gun laws in the United States. Part of the reason is that, when it comes down to it, the Second Amendment is gun law in this country: “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 basic statement has been shaped and chipped away by laws passed on the local, state and federal level. The ability of various jurisdictions to put limits on Americans’ right to keep and bear arms has been guided by some very important case law—cases that should be familiar to all Americans who care about the right to self-protection.
If you know these cases, you can easily counter the arguments of those who want to disarm you. “The right to have a gun is not a civil right.” Wrong: Johnson v. Eisentrager, 1950. “The Second Amendment doesn’t mean you can have a military weapon.” Wrong: U.S. v. Miller, 1939, and D.C. v. Heller, 2008. “The police are supposed to protect us.” Wrong: Warren v. District of Columbia, 1981.
Supporters of the right to keep and bear arms should be armed with the information needed to counter the ignorance of those who would take away their rights and make this a much more dangerous country. Learn the names and dates, study the cases, and be ready with the facts when you need them.
Please note: unlike our president, I am not a formal constitutional scholar. (I’m also not a smoker or a socialist.) But I’m a firm believer in the Constitution and the right to keep and bear arms, and I think I have my facts straight here. Please let me know in the comments if you think I got anything wrong (or missed any crucial points) in my summaries.
1803: Marbury v. Madison
Martin Luther King, Jr., famously stated in his “Letter from a Birmingham Jail” that “one has a moral responsibility to disobey unjust laws.” This concept, however, dates back much further than the Civil Rights era. The case of Marbury v. Madison is complicated, but it basically boils down to the fact that William Marbury didn’t get something he was promised (a commission to the post of justice of the peace) by John Adams. Adams had issued a whole bunch of judicial appointments on his last day of office, trying to pack the courts with Federalists before the Democratic-Republican Thomas Jefferson took over. Intrigue ensued, and Marbury never got the promised commission because Levi Lincoln, who Thomas Jefferson appointed as the new Attorney General, had been ordered by Jefferson not to deliver it.
In a unanimous decision (4-0), the Court held that Marbury was, indeed, entitled to his commission, but that the Court couldn’t compel James Madison (Levi Lincoln’s successor) to deliver it. So what does this have to do with the Second Amendment?
It’s all about the big picture. Marbury v. Madison was a landmark decision because it established that the Supreme Court has the ability to strike down laws that directly conflicted with the Constitution. This seems so obvious today, but it was far from obvious back in the early 1800s. As the Court held: “So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
Most of the case law below could never have happened if the decision in Marbury v. Madison hadn’t been crafted the way it was. The upshot is that the Supreme Court has the duty and obligation to decide whether any law passed by the legislature passes constitutional muster. If it doesn’t, the high court has the ability to strike it down. Take that, legislative branch!
1939: United States v. Miller
The Miller case is one of the strangest in the history of the Supreme Court. In 1934, because of concerns about mob violence (and specifically, in reaction to the St. Valentine’s Day Massacre), Congress passed a really lousy law called the National Firearms Act (NFA). The NFA dictated that specific firearms and firearm accessories often associated with gangster shootings (automatic guns like the Thompson submachine gun, short-barreled rifles and shotguns, and supressors) should be limited and controlled by means of a $200 tax that must be paid every time one of the controlled weapons or accessories changed ownership. Congress justified this infringement of the Second Amendment by calling it a “revenue measure.”
The defendants in the case, Jack Miller and Frank Layton, were by all accounts engaged in moonshining. They were accused of possessing a sawed-off shotgun that hadn’t been subject to the $200 NFA tax. It’s entirely likely that neither of these men had any idea the NFA existed. At the District Court level, Justice Heartsill Ragon sided with the defendants, saying, “The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States….” The feds appealed, and the case was accepted by the Supreme Court. Curiously, by the time the case was heard, Miller had been murdered. His counsel didn’t bother to show up to argue before the high court.
With nobody providing evidence to the contrary, the U.S. attorneys … well, they lied. They argued that the NFA should not be invalidated because the Second Amendment protected the right to keep and bear only those arms suitable for militia use. In spite of the fact that short-barreled shotguns and submachine guns like the Thompson were frequently used in militia and military operations, the government lawyers stated that they weren’t. And of course, since nobody was there to say anything different, the U.S. attorneys won by default.
Miller is interesting for several reasons. First, the decision stated explicitly that “the Militia [is] comprised all males physically capable of acting in concert for the common defense.” The decision adds: “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.” Foes of the Second Amendment often point to the “militia” clause and say that the right to keep and bear arms only applies to those in an organized militia, or in the military. The Miller decision directly contradicts this claim. In addition, when 21st-century gun-banners claim that ordinary citizens (a.k.a. “militia members”) shouldn’t be able to own “military-style rifles” such as “assault weapons,” it’s easy enough to counter that in Miller, the U.S. government argued the exact opposite thing. The AR-15 is the most popular rifle in the country, giving it explicit “common use” status mentioned in the decision. The Miller decision, as bad as it is, points out the ridiculous nature of attempts by the federal government to deprive citizens of a class of guns simply because they look like they belong to an infantryman.
1950: Johnson v. Eisentrager
This case is more about the Fifth Amendment (right to a grand jury and jury trial, defense against self-incrimination and double jeopardy) than the Second. It was brought by German war criminals who claimed that, because they were under the jurisdiction of the American military, they should be afforded the same rights as U.S. citizens.
The Court disagreed, saying in part that if the Fifth Amendment “invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers.” Of particular note, though, is the fact that the decision lists the Second Amendment’s right to keep and bear arms as an individual civil right—on par with those guaranteed by the First, Fourth, Fifth and Sixth Amendments.
It should be noted that, as far as I can tell, Johnson v. Eisentrager is also the only Supreme Court decision to use the term “werewolves.” That’s an important thing to know.
1961: Poe v. Ullman
This case seems almost quaint to lots of people today. A group of Connecticut citizens joined together to challenge state legislation that banned contraceptives and prohibited doctors from prescribing various forms of birth control. In reality, these laws had been on the books for years but never enforced. Because they were widely ignored and nobody had ever been punished for breaking them, the Supreme Court held that the plaintiffs lacked standing for a challenge.
In a strange departure from convention, much of the impact of Poe v. Ullman has come from the dissenting opinion of the case, written by Justice John M. Harlan II. In his much-cited and often-quoted opinion, he states that “‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints … and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.”
Harlan points to the Fourteenth Amendment, which says that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” His point is that the Fourteenth Amendment protects individual liberty by prohibiting infringement by states. “liberty” of course belongs to individuals, not to state governments.
1981: Warren v. District of Columbia
This decision by the D.C. Court of Appeals (not the Supreme Court) is critical to deconstructing the argument that the police are responsible for the protection of individual citizens and not citizens themselves.
The facts of the case are horrifying. Two criminals, Marvin Kent and James Morse, broke into a D.C. rooming house and began raping a woman named Miriam Douglas. Two other residents, Carolyn Warren and Joan Taliaferro, heard the crime in progress and called the Metropolitan Police Department. The police response was underwhelming. Officers in squad cars drove by and one officer knocked on the building’s front door but left when nobody answered. Hearing the rape continuing, Warren and Taliaferro called the police again, but no additional officers were ever dispatched. After the second call, Kent and Morse discovered Warren and Taliaferro. The two men forced all three women at knifepoint to Kent’s apartment, where Douglas, Warren and Taliaferro were repeatedly sexually assaulted for the next fourteen hours.
The women sued the D.C. Metropolitan Police Department, claiming negligence. They had called the police twice. Their ordeal, they claimed, should have been prevented by the officers, who were sworn to protect and to serve. But the Court held—in a 4-3 decision—that the women were not entitled to any compensation. The Court explicitly stated that it is a “fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen.” In other words, preventing crime is not an obligation for which the police or any other government agency can be held responsible.
1995: United States v. Lopez
In 1992 a high school senior named Alfonso Lopez, Jr., took an unloaded handgun to school and is confronted by school authorities. He claimed to have it at school because was planning to sell the gun to someone else. He was charged with violating the 1990 Gun-Free School Zones Act (GFSZA), which relied on the “interstate commerce clause” of the Constitution for its validity.
Lopez was convicted, and appealed to the Fifth Circuit Court of Appeals, which reverse the conviction. Eventually the Supreme Court took the case. The government attorney defended the GFSZA by arguing that guns cause (or at least contribute) crime, and crime causes expense. Because the Constitution allows Congress to make laws about issues affecting interstate commerce, the government argued that the GFSZA should stand.
The Supreme Court disagreed. The majority (in a 5-4 decision) held that there was no real economic activity related to the possession of a gun in a school that warranted the legislation. The argument about the possible chain of economic events starting with a gun on a school campus and ending with a negative economic impact was way too much of a stretch. They said, in essense, that Congress overreached its authority.
1997: Mack and Printz v. United States
Jay Printz and Richard Mack—law enforcement officers from Ravalli County, Montana, and Graham County, Arizona, respectively—challenged the The Gun Control Act of 1968 and the 1993 Cameron Act (the Brady Handgun Violence Prevention Act), which amended it.
Their objection was over how the laws required state law enforcement to enforce federal law. At issue was the requirement that a firearms dealer provide a “Brady Form” background check document to the chief law enforcement officer of a state, who was then obligated to provide an answer within five days as to whether a purchaser should be able to purchase a gun or not. State law enforcement was required to perform due diligence to help keep guns out of the hands of felons, fugitives, illegal aliens, people accused of domestic violence or stalking, the mentally ill, and other prohibited classes of people.
In a 5-4 decision, the court held that these requirements of the Brady Bill were unconstitutional. As the Court explained: “The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, “shall take Care that the Laws be faithfully executed”…. The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove).”
In the William & Mary Bill of Rights Journal, Kevin T. Streit wrote that “the major effect of both Printz and Lopez has been to strengthen and expand state prerogatives vis-a-vis the federal government. Both cases emphasized rights ‘reserved to the states’ under the Tenth Amendment and held that Congress’ Commerce Clause authority does not grant it carte blanche to invade areas of governmental power that the Framers left under state control when they formulated the Constitution’s dual sovereignty principle.’” He points out (actually, “gloats” might be a better word) that in both cases, the high court fell short of clarifying a definitive meaning of the Second Amendment. That would take another 11 years.
2008: District of Columbia v. Heller
In this landmark case, special police officer Dick Heller challenged the handgun laws of the District of Columbia. The District’s gun laws were some of the most restrictive in the nation. (The violent crime rate in D.C. also ranks in the highest for a metropolitan area. See the preceding statement.) D.C. law prohibited the carrying of an unregistered firearm, and also prohibited the registration of handguns—which means that handgun possession by “regular” citizens was entirely banned. In addition, anyone having a lawfully registered firearm at home had to keep it unloaded and disassembled or disabled by a trigger lock. The laws were specifically written to prevent law-abiding citizens from having a gun to prevent from being victimized by criminals.
Dick Heller tried to register a handgun to protect himself at home. When his request was denied, he brought suit to block the enforcement of the D.C. gun laws, due to the fact that they denied him his constitutional right to keep and bear arms. Heller was the case that both Second Amendment advocates and gun banners alike had been waiting for. The Supreme Court had finally taken a case that would give them the opportunity to make a definite statement on the meaning of the Second Amendment. And the Court didn’t disappoint (unless you were among those who sided with the District).
In the decision, the Court pronounced a “strong presumption that the 2nd Amendment right is exercised individually and belongs to all Americans.” Just in case that wasn’t clear enough, the majority opinion also responded to the notion that the Second Amendment only applied to “only those arms in existence in the 18th century” (the well-worn “muskets and flintlocks” argument), calling this idea patently “frivolous.” The majority opinion included the warning that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
The Court also argued bans on “weapons that are most useful in military service” would cause “the 2nd Amendment right [to be] completely detached from the prefatory clause.” In addition, the Court warned against taking too much from the Miller case of 1939. Justice Scalia wrote: “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”
Heller was the breakthrough case that many had been waiting for. As noted on SCOTUSBlog, “While the declaration of the individual right was clear-cut, as was the decision’s nullification of key parts of the Washington, D.C., law, the Court did not lay down a standard for judging the constitutionality of any other federal laws—an omission that the dissenters attacked strongly. Even so, the opinion made it clear that, whatever ultimate test emerge, it probably would be a tough one to meet, at least when self-defense is at issue. As Justice Scalia put it, whatever remains for ‘future evaluation’ about the strength of the right, ‘it surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.’”
The one “win” that gun banners claimed in Heller was this statement: “The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
2010: McDonald v. Chicago
One of the weaknesses of Heller was that it provided comment on unconstitutional laws passed within the District of Columbia. The Court held the Second Amendment to be an individual right, but since D.C. is a “federal district,” the case provided little direction on laws created by individual states. That would have to wait until McDonald v. Chicago.
Otis McDonald, a 76-year-old resident of Chicago filed a lawsuit (with three other plaintiffs) against the City of Chicago challenging the municipality’s draconian restrictions on firearm ownership and use. An avid hunter, McDonald had been a victim of multiple crimes, but was prohibited from owning a gun to protect himself in his home. Specifically, Chicago required the registration of all firearms, but prohibited the registration of handguns, which created an effective ban on them within Chicago. The city also required that all firearms be registered prior to their purchase, required annual re-registration (which necessitated another fee), and also mandated that a gun would be rendered permanently “illegal” if a citizen allowed a registration to lapse.
The McDonald case was another big win for the Second Amendment (and for all Americans). In a 5-4 decision, the Court asserted that the Second Amendment was a constitutional right that was greater than any individual state’s authority to restrict it. The Amendment was found to be “incorporated against the states” by the due process section of the Fourteenth Amendment. Justice Samuel Alito, writing for the majority, stated that “It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as states legislated in an evenhanded manner.”
In a remarkable nod to unintended consequences, the Court pointed out that the handgun ban in Chicago was enacted in 1982 as a means of protecting residents, but noted that the rate of violence from criminals using handguns had gone up substantially since the ban was put into place. Alito emphasized that in spite of (or because of) the ban, “Chicago residents now face one of the highest murder rates in the country.”
In the aftermath of Heller and McDonald, cities like Chicago with highly restrictive gun laws had to revisit their legislative strategies. Chicago Mayor Richard Daley vowed to test the absolute limits of restrictions that would be allowed under the 2008 and 2010 cases, noting that the city was “trying to figure out how far we can go and survive a [legal] challenge, because we know it will be challenged.”
Virginia attorney Alan Gura, who argued both Heller and McDonald, summed it up nicely after the McDonald decision came out, stating that “laws that arbitrarily deny law-abiding people the right to carry guns in self-defense and laws that ban weapons for arbitrary and irrational reasons, those are going to be in danger.”