Part 1 was an overview. Part 2 was on the original meaning of the 2nd Amendment. Part 3 was early court cases. Part 4 is on the US v Miller Case and its legacy. Part 5 will be on the DC case.
The New Deal changed much of landscape of American politics, as well as the courts. At that time, the courts were activist. At first, they were activist against the states. They struck down most of the New Deal legislation. That wasn't always a bad thing. However, they struck down laws they didn't like on the state level on 14th Amendment grounds. They were economicaly libertarian, and while I may agree with that to a degree, cases like Lochner set bad precident to go in all different directions. FDR pushed his court packing scheme, but backed off when "a stich in time saved nine" and one of the other block switched to his side, making the mass expansion of government power suddenly "constitutional." Later you had more expansions (not ALL of it bad - Brown v Board of Education was a good decision) under the Warren and Burger Courts. The Rehnquist and Roberts courts seem to be moderating the expansions to some degree.
US V Miller was an 8-0 decision in 1939. Was it judicial activism? I can't say since it was that bad of a case. I don't blame the judges as much for this as they didn't have much to work with. I blame the test case. Miller was the worst possible test case of all. There are several reasons for that.
Jack Miller and Frank Layton were suspected bank robbers accused of violating the NFA act, still in effect today. They transported a sawed off shotgun across state lines. A Sawed Off Shotgun is a Class III firearm. It required a $200 tax (a LOT of money back then) on Class III firearms and registration with the BATF. Miller and Layton were charged, and fought on 2nd Amendment Grounds. The district court tossed the case out on 2nd Amendment grounds.
The case was appealed to SCOTUS. FDR's adminisration gave their brief which can be seen at guncite. It started with Cruikshank and then gave birth to what is known as the "collective right" theory saying that there is no right to keep and bear arms except for "state militias." The arms also had to be either public defense or military uses.
On the brief for Miller, we have.....nothing. Zip. Zilch. Zero. Nada. Layton plea bargained beforehand, and Miller was dead. He, nor his counsel, were at the Supreme Court. The case was also remanded to trial court, and never completed because there was no longer a case with Miller being dead. You start with a shady character, use him as a test case, and then not have him show up for whatever reason at the SCOTUS hearing, and combine that with a hostile administation (although nothing compared to Carter or Clinton), and this isn't going to be good. Combine all of that, and there is going to be bad precident.
Findlaw has the opinion.
Appeal from the District Court of the United States for the Western District of Arkansas. [307 U.S. 174, 175] Mr. Gordon Dean, of Washington, D.C., for the United States.
No appearance for appellees.
You can't win if you don't show. As far as the 2nd Amendment precident goes...
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. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
The main part of the opinion is that the firearms protected by the 2nd Amendment have to be related to the militia. Miller did not have the opprotunity to prove that a sawed off shotgun can be a militia related weapon. (Was used in World War I). As far as Aymette v Tennessee, it can be found here and stated this: (Bowie Knife)
The right to keep and bear
arms for the common defence is a great political right. It
respects the citizens, on the one hand, and the rulers on the
other. And, although this right must be inviolably preserved, yet
it does not follow that the legislature is prohibited altogether
from passing laws regulating the manner in which these arms may be
In the former part of this opinion we have recurred to the
circumstances under which a similar provision was adopted in
England, and have thence deduced the reason of its adoption, and
consequently have seen the object in view when the right to keep
and bear arms was secured. All these considerations are left out
of view in the case referred to, and the court confine themselves
entirely to the consideration of the distinction between a law
prohibiting the right, and a law merely regulating the manner in
which arms may be worn. They say there can be no difference
between a law prohibiting the wearing concealed weapons and one
prohibiting the wearing them openly.
We think there is a manifest distinction. In the nature of
things, if they were not allowed to bear arms openly, they could
not bear them in their defence of the state at all. To bear arms
in defence of the state is to employ them in war, as arms are
usually employed by civilized nations. The arms, consisting of
swords, muskets, rifles, etc., must necessarily be borne openly; so
that a prohibition to bear them openly would be a denial of the
right altogether. And, as in their constitution the right to bear
arms in defence of themselves is coupled with the right to bear
them in defence of the state, we must understand the expressions as
meaning the same thing, and as relating to public, and not private,
to the common, and not the individual, defence.
But a prohibition to wear a spear concealed in a cane would in
no degree circumscribe the right to bear arms in the defence of the
state; for this weapon could in no degree contribute to its
defence, and would be worse than useless in an army. And, if, as
is above suggested, the wearing arms in defence of the citizens is
taken to mean the common defence, the same observations apply.
To make this view of the case still more clear, we may remark
that the phrase, "bear arms," is used in the Kentucky constitution
as well as in our own, and implies, as has already been suggested,
their military use. The 28th section of our bill of rights provides
"that no citizen of this state shall be compelled to bear arms
provided he will pay in equivalent, to be ascertained by law." Here
we know that the phrase has a military sense, and no other; and we
must infer that it is used in the same sense in the 26th section,
which secures to the citizen the right to bear arms. A man in the
pursuit of deer, elk, and buffaloes might carry his rifle every day
for forty years, and yet it would never be said of him that he had
borne arms; much less could it be said that a private citizen bears
arms because he has a dirk or pistol concealed under his clothes,
or a spear in a cane. So that, with deference, we think the
argument of the court in the case referred to, even upon the
question it has debated, is defective and inconclusive.
SCOTUS sited the above in the US v Miller case regarding sawed off shotguns.
However, when it comes to militias, this was mentioned in Miller:
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.
Keep in mind, this was AFTER the National Guard was formed. "All males physically capable" "Body of citizens". Even without Miller showing up, this was what SCOTUS mentioned. Lastly was this regarding the shotgun.
Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.
With decisions like that, I'd love to be able to get into a Delorean, go 88MPH, and go back to 1939 to argue this case. Miller didn't go as far as the government wanted. It did not mention "collective right" or "state militia" as being seperate from the citizenry. It was however misinterpreted in its legacy, making this bad precident for its somewhat vagueness (not to mention Miller and his counsel not showing up).
The Legacy of Miller
The First Circut in an appeal regarding several cases and punted this for the most part.
The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads "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 right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. (p.922)United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615. But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S.Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.
In the case last cited the Supreme Court, after discussing the history of militia organizations in the United States, upheld the validity under the Second Amendment of the National Firearms Act of June 26, 1934, 48 Stat. 1236, in so far as it imposed limitations upon the use of a shotgun having a barrel less than eighteen inches long. It stated the reason for its result on page 178 of the opinion in 307 U.S., on page 818 of 59 S.Ct., 83 L.Ed. 1206, as follows: "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."
Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia. However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,--almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,--is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result. Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.
The 6th circuit (here) had a real nasty legacy. Stevens v US in 1971 completely misinterpreted this.
We turn now to the consideration of whether Congress has the power to prohibit the possession of a firearm by a convicted felon. Since the Second Amendment right ‘to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm. United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206. Stevens asserts, however, that Congress is without constitutional power to deny him this privilege. We hold that Congress has this authority under the commerce clause.
Where in Miller did it say that? The good news is that case was negitively cited twice.
The 8th Circuit said this regarding false statements in purchasing a firearm. Cody v US.
We find no merit in the contention that § 922(a) (6) violates appellant's Second Amendment right to bear arms. Since *37 United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), it has been settled that the Second Amendment is not an absolute bar to congressional regulation of the use or possession of firearms. The Second Amendment's guarantee extends only to use or possession which “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id. at 178, 59 S.Ct. at 818. See United States v. Synnes, 438 F.2d 764, 772 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972); Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942), cert. denied sub nom., Cases Valazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943). We find no evidence that the prohibition of § 922(a) (6) obstructs the maintenance of a well regulated militia.
It all came from Miller. SCOTUS in 1980 in a dicta footnote (by Harry Blackmun) did affirm Miller, but that was argued on 5th Amendment Grounds. Things start to heat up later. With the rise in gun control movement from the 60's to today, we see a lot more changes in judicial philospohy in academia, and among the public.
US v Verdugo-Urquidez in 1990 was a 4th Amendment case, but it kickstarted the "Right of the people" argument.
The Fourth Amendment provides:
*265 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to “the people.” Contrary to the suggestion of amici curiae that the Framers used this phrase “simply to avoid [an] awkward rhetorical redundancy,” Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, “the people” seems to have been a term of **1061 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. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words*266 “person” and “ accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.
US v Lopez overturned the law that prohibited firearms within 1000 feet of a school zone. It was overturned on commerce clause grounds. (Related to 10th Amendment)It was a 5-4 decision with Stephens, Souter, Ginsburg, and Breyer dissenting. Stephens said this on his own.
Guns are both articles of commerce and articles that can be used to restrain commerce. Their possession is the consequence,*603 either directly or indirectly, of commercial activity. In my judgment, Congress' power to regulate commerce in firearms includes the power to prohibit possession of guns at any location because of their potentially harmful use; it necessarily follows that Congress may also prohibit their possession in particular markets. The market for the possession of handguns by school-age children is, distressingly, substantial.FN* Whether or not the national interest in eliminating that market would have justified federal legislation in 1789, it surely does today.
Justice Thomas in 1997 said this in the 10th Amendment case Printz v US where part of the Brady Bill was struck down. IT was also a 5-4 decision. Same people dissented here as in Lopez.
Even if we construe Congress' authority to regulate interstate commerce to encompass those intrastate transactions that “substantially affect” interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from “prohibiting the free exercise” of religion or “abridging the freedom of speech.” The Second *938 Amendment similarly appears to contain an express limitation on **2386 the Government's authority. That Amendment provides: “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 Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment.FN1 If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections.FN2 As the parties did *939 not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” 3 J. Story, Commentaries § 1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.
Those decisions could be interesting to see what could happen in the Parker and Heller case as it is the only gun cases SCOTUS has ruled on recently. As far as the Second Amendment goes, there are three recent cases - three main ones that come to light.
The first is US v Emerson. The second is Silveira v. Lockyer which is a Stephen Reinhardt Special. Thank you Jimmy Carter.
US v Emerson was a 3-0 decision with two opintion. The anti-2a concurrence was a Clinton judge. The district court opinion ruled for Emerson on 2nd Amendment grounds. The Appeals overruled the case, but affirms an individual right to keep and bear arms. Findlaw has the case
US v Emerson first distinguished three models. The Collective rights model, "sophisticated collective rights", and individual rights (also known as standard) model. The Court says:
The government steadfastly maintains that the Supreme
Court's decision in United States v. Miller, 59 S.Ct. 816
(1939), mandated acceptance of the collective rights or
sophisticated collective rights model, and rejection of the
individual rights or standard model, as a basis for construction
of the Second Amendment. We disagree.
The court then examines Miller.
Miller reversed the decision of the district court and
"remanded for further proceedings." Id. at 820. We believe it
is entirely clear that the Supreme Court decided Miller on the
basis of the government's second argument-that a "shotgun having
a barrel of less than eighteen inches in length" as stated in
the National Firearms Act is not (or cannot merely be assumed to
be) one of the "Arms" which the Second Amendment prohibits
infringement of the right of the people to keep and bear-and not
on the basis of the government's first argument (that the Second
Amendment protects the right of the people to keep and bear no
character of "arms" when not borne in actual, active service in
the militia or some other military organization provided for by
law"). Miller expresses its holding as follows:
I already posted what was cited earlier when I looked at the Miller decision.
Nowhere in the Court's Miller opinion is there any reference
to the fact that the indictment does not remotely suggest that
either of the two defendants was ever a member of any organized,
active militia, such as the National Guard, much less that
either was engaged (or about to be engaged) in any actual
military service or training of such a militia unit when
transporting the sawed-off shotgun from Oklahoma into Arkansas.
Had the lack of such membership or engagement been a ground of
the decision in Miller, the Court's opinion would obviously have
made mention of it. But it did not
It then goes on exam the term "militia" and said that Miller was neutral on individual vs collective rights.
These passages from Miller suggest that the militia, the
assurance of whose continuation and the rendering possible of
whose effectiveness Miller says were purposes of the Second
Amendment, referred to the generality of the civilian male
inhabitants throughout their lives from teenage years until old
age and to their personally keeping their own arms, and not
merely to individuals during the time (if any) they might be
actively engaged in actual military service or only to those who
were members of special or select units.
We conclude that Miller does not support the government's
collective rights or sophisticated collective rights approach to
the Second Amendment. Indeed, to the extent that Miller sheds
light on the matter it cuts against the government's position.
Nor does the government cite any other authority binding on this
panel which mandates acceptance of its position in this
respect.(21) However, we do not proceed on the assumption that
Miller actually accepted an individual rights, as opposed to a
collective or sophisticated collective rights, interpretation of
the Second Amendment. Thus, Miller itself does not resolve that
issue.(22) We turn, therefore, to an analysis of history and
wording of the Second Amendment for guidance. In undertaking
this analysis, we are mindful that almost all of our sister
circuits have rejected any individual rights view of the Second
Amendment. However, it respectfully appears to us that all or
almost all of these opinions seem to have done so either on the
erroneous assumption that Miller resolved that issue or without
sufficient articulated examination of the history and text of
the Second Amendment.
It takes a textual approach on the meanings of people, bear arms, and keep arms, as well as ""A well-regulated Militia, being necessary to the security of a free
State." It's long, but important reading and can be found at Findlaw. Lastly, it looks at the history with the federalists and anti-federalists, as well as state constitutions and early history regarding the right to keep and bear arms.
The final decision is this
We reject the collective rights and sophisticated collective
rights models for interpreting the Second Amendment. We hold,
consistent with Miller, that it protects the right of
individuals, including those not then actually a member of any
militia or engaged in active military service or training, to
privately possess and bear their own firearms, such as the
pistol involved here, that are suitable as personal, individual
weapons and are not of the general kind or type excluded by
Miller. However, because of our holding that section 922(g)(8),
as applied to Emerson, does not infringe his individual rights
under the Second Amendment we will not now further elaborate as
to the exact scope of all Second Amendment rights.
Error has not been demonstrated in the district court's
refusal to dismiss the indictment on commerce clause grounds.
For the reasons stated, we reverse the district court's
order granting the motion to dismiss the indictment under the
We agree with the district court that the Second Amendment
protects the right of individuals to privately keep and bear
their own firearms that are suitable as individual, personal
weapons and are not of the general kind or type excluded by
Miller, regardless of whether the particular individual is then
actually a member of a militia.(66) However, for the reasons
stated, we also conclude that the predicate order in question
here is sufficient, albeit likely minimally so, to support the
deprivation, while it remains in effect, of the defendant's
Second Amendment rights. Accordingly, we reverse the district
court's dismissal of the indictment on Second Amendment grounds.
That was more due to Emerson not being the most upstanding citizen which can be read in the decision.
The 9th Circuit's opinion of Silveira v Lockyer contradicts Emerson.
Stephen Reinhardt wrote:
In 1999, the State of California enacted amendments to its gun control laws that significantly strengthened the state's restrictions on the possession, use, and transfer of the semi-automatic weapons popularly known as "assault weapons." Plaintiffs, California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute, asserting that the law, as amended, violates the Second Amendment, the Equal Protection Clause, and a host of other constitutional provisions. The district court dismissed all of the plaintiffs' claims. 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.
Because the Second Amendment affords only a collective right to own or possess guns or other firearms, the district court's dismissal of plaintiffs' Second Amendment claims is AFFIRMED. Because the off-duty officer provision is supported by a rational basis, the district court's dismissal of plaintiffs' equal protection claim challenging that provision is also AFFIRMED. However, because no rational basis exists for the retired officers exception, we REVERSE the district court's dismissal of that claim and direct that judgment be entered for the plaintiffs in that regard. The constitutional challenges to the validity of the California Assault Weapons Control Act are all rejected, with the exception of the claim relating to the retired officers provision
Reinhardt ripped the emerson case in his decision. Love or hate his work, it's binding in the 9th Circuit. It's in PDF format on Findlaw and the 9th Circuit appeals cite.
Until Parker, the two most recent 2a related cases directly contradicted each other within a short period. That leads to Part 5 and the current case.