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Your Individual Right
To Keep And Bear Arms



By Howard J. Fezell, Esq.


This essay originally appeared in the January, 1997 issue of American Survival Guide


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.

United States Constitution, Amendment II

Introduction

Gun-prohibitionists constantly argue that the Second Amendment guarantees only a right of States to maintain militias. In doing so, they ignore not only the plain text of the Constitution and Bill of Rights, but numerous opinions in which the United States Supreme Court has spoken of the right to keep and bear arms as an individual right. Proponents of the "states' rights" theory are also silent as to why, despite abundant opportunity, the Supreme Court has never summarily disposed of a Second Amendment claim on the grounds that an individual lacked standing to assert it.

The right guaranteed by the Second Amendment is the right of the people, not the States. The very text of the Constitution distinguishes between "the people", "persons" and "States". See, art. I., Sec. 2; art. I, Sec. 3; art. II, Sec. 1. The Tenth Amendment distinguishes between "the people" and "the States" by providing that, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In The Bill of Rights as a Constitution, 100 YALE LAW JOURNAL 1131, 1166 (1991) Prof. Akil Reed Amar of Yale Law School writes:

The states' rights reading [of the Second Amendment] puts great weight on the word "militia," but this word appears only in the Amendment's subordinate clause. The ultimate right to keep and bear arms belongs to "the people," not the "states." As the language of the Tenth Amendment shows, these two are of course not identical and when the Constitution means "states," it says so. Thus, as noted above, "the people" at the core of the Second Amendment are the same "people" at the heart of the Preamble and the First Amendment, namely Citizens.

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) involved the search of a residence in Mexico by agents of the United States Drug Enforcement Agency. The occupant of the residence was a Mexican citizen who later sought to suppress evidence that had been obtained during the search. The Supreme Court held that the Fourth Amendment did not apply to a search by American police of the Mexican residence of a Mexican citizen and resident who had no voluntary attachments to the United States. Although this case involved a claim under the Fourth Amendment's prohibition against unreasonable searches and seizures, the opinion by Chief Justice Rhenquist makes it clear that the phrase "the people", as used in the Bill of Rights, means individuals:
"The people" seems to have been a term of art employed in select parts of the Constitution. . . . 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") . . . . 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.

494 U.S. at 265 (emp. added).

In his dissenting opinion in Verdugo-Urquidez, Justice Brennan noted that, "the term `the people' is better understood as a rhetorical counterpoint to `the government,' such that rights that were reserved to `the people' were to protect all those subject to `the government.'" 494 U.S. at 287 (emp. added).

In The Second Amendment and The Personal Right to Arms, Vol. 43 DUKE LAW JOURNAL 1236, 1243-44 (1994) Prof. William Van Alstyne writes:

[The Second Amendment] looks to an ultimate reliance on the common citizen who has a right to keep and bear arms rather than only to some standing army, or only to some other politically separated, defined, and detached armed cadre, as an essential source of security of a free state. In relating these propositions within one amendment, moreover, it does not disparage, much less does it subordinate "the right of the people to keep and bear arms." To the contrary, it expressly embraces that right and indeed it erects the very scaffolding of a free state upon that guarantee. It derives its definition of a well-regulated Militia in just this way for a "free State:" The Militia to be well regulated is a Militia to be drawn from just such people (i.e. people with a right to keep and bear arms) rather than from some other source (i.e. from people without rights to keep and bear arms). (emp. in original)

During the Constitutional Convention, language qualifying the right to keep and bear arms by inserting the phrase "for the common defense" next to the words "bear arms" was rejected. This underscores the drafters' refusal to limit the right to military purposes. Dowlut, Federal And State Constitutional Guarantees To Arms, Vol. 15 U. DAYTON LAW REVIEW 59, 66 (1989).

The Requirement For "Standing"

In order to assert a constitutional claim, a person must have "standing", that is, the legal right to assert a claim. A plaintiff asserting the violation of a constitutional right must show a direct and immediate personal injury. Baker v. Carr, 369 U.S. 186, 204 (1962). If a party lacks standing, the court can dismiss his claim without ever considering its merits. On four separate occasions the Supreme Court considered cases of individuals who sought relief for what they claimed was an infringement of the right to keep and bear arms. In the first two cases the Court held that the Bill of Rights did not apply to the States (a concept long since discarded). In the third, the Court held that since the defendant did not raise his claim at trial he could not do so on appeal. In the last case, the Court decided that the evidence before it was incomplete and sent the case back to the trial court. Not once did the Court rule that an individual lacked standing to raise a Second Amendment claim.

In United States v. Cruikshank, 92 U.S. 542 (1876) the Supreme Court gutted the Due Process Clause of the Fourteenth Amendment by holding that the Second Amendment, like the rest of the Bill of Rights, only operated as a restraint upon the federal government. In discussing the right to "bear arms for a lawful purpose" the Court stated that "the people" should look to localities (not the National Government) for protection against "their fellow citizens" of rights recognized by the Second Amendment. 92 U.S. at 553. Cruikshank affirmed an order arresting judgments of conviction for conspiracy to deprive freed blacks in Louisiana of their civil rights. The fact that the black citizens who were victimized were not affiliated with an organized state militia had no bearing on the case. The Court in Cruikshank also used the phrase "the people" in the same context as "their fellow citizens". 92 U.S. at 553. It obviously viewed "the people" referred to in the Second Amendment as meaning individuals. States, unlike individuals, do not have "fellow citizens".

In Presser v. Illinois, 116 U.S. 252 (1886) the Supreme Court upheld the conviction of a man charged with parading a body of armed men through Chicago without a license. Illinois law prohibited bodies of men to associate together as military organizations or to drill or parade in cities and towns unless authorized by law. Presser challenged this law as violating the Second Amendment. The Court held that these provisions did not infringe the right of the people to keep and bear arms. Citing Cruikshank, Presser also held that the Second Amendment is a limitation only upon Congress and the federal government. Presser did, however, hold that all citizens capable of bearing arms constitute the reserve military force or reserve militia of the United States and of the States; and that even without the Second Amendment states may not prohibit people from keeping and bearing arms "so as to deprive the United States of their rightful resource for maintaining public security." 116 U.S. at 265. Presser thus drew a clear distinction between "the people" and "States". If the Second Amendment guaranteed only a collective right, the Court could easily have disposed of Presser's Second Amendment claim by holding that he lacked standing to assert it. Instead, it addressed Presser's Second Amendment claim on its merits.

In Miller v. Texas, 153 U.S. 535 (1894) the Supreme Court declined to rule on the appellant's Second Amendment claim due to his failure to raise it in a timely fashion, stating, "[i]f the Fourteenth Amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court." 153 U.S. at 538. Miller had been convicted of murder and on appeal argued that Texas law forbidding the carrying of weapons violated the Second Amendment. Once again, if the Second Amendment guaranteed only a collective right, such a claim could have been easily disposed of due to Miller's lack of standing. However, Miller's claim was not ruled upon because he, as an individual, lacked standing to assert it. The Court held that he had failed to assert it in a timely fashion.

United States v. Miller, 307 U.S. 174 (1939) involved the indictment of Jack Miller and a cohort for unlawfully transporting a short-barrelled shotgun in violation of the National Firearms Act of 1934. The trial court granted Miller's motion to dismiss the charges, holding that the section of the act under which he had been indicted violated the Second Amendment. The United States appealed. Jack Miller fled to parts unknown. Only the Solicitor General for the United States filed a brief or appeared to argue the case before the Supreme Court. The Court was not at all concerned that Jack Miller, an individual, was asserting a Second Amendment claim. What the Supreme Court cared about was whether the shotgun possessed by Miller had "some reasonable relationship to the preservation or efficiency of a well-regulated militia, . . ." 307 U.S. at 178. The Court refused to take for granted that a short-barrelled shotgun "is any part of ordinary military equipment or that its use could contribute to the common defense". 307 U.S. at 178. The case was sent back to the trial court for further proceedings on this question. Unfortunately, Jack Miller was no longer around and the case went no further. If the Second Amendment guaranteed only a collective right, the Supreme Court could have simply held that Mr. Miller, as an individual, lacked standing to assert a right to keep and bear arms. However, the fact that Miller was not affiliated with an organized state militia had no bearing on the case. The opinion in United States v. Miller never even suggested that the possessor of a firearm must be a member of a militia, and the individual nature of the right to keep and bear arms went unquestioned.

Since before the Civil War (and to this day)
the Supreme Court has spoken of the right to keep and bear arms
in the context of other "individual" rights.

In Scott v. Sanford, 60 U.S. (19 How.) 393 (1857)(also known as "The Dred Scott Case") the Supreme Court addressed the question of whether persons of African descent could be citizens. It held that they could not in an opinion written by Chief Justice Taney, a Southerner from Maryland (where slavery was both legal and widely practiced). In 1857, Southerners were not keen on the idea of freeing the slaves, much less bestowing upon them the rights of citizens. The concerns of his fellow Southerners were not lost upon Chief Justice Taney, who wrote that if blacks were recognized as citizens in any State of the Union, they would have the right to travel freely, engage in free speech, hold public meetings on political issues, and "keep and carry arms wherever they went." 60 U.S. at 416-17.

If the Second Amendment guaranteed only the collective right of states to maintain militias, there would have been no reason for Taney to fear that black citizens could "keep and carry arms" since citizenship does not automatically entail service in an organized state militia. What concerned Chief Justice Taney was the rights blacks would enjoy as citizens. The Court's opinion in Scott v. Sanford also listed the right to keep and bear arms with other rights which the Court has held to be of an individual nature, such as freedom of religion, free speech, freedom of the press, peaceable assembly, trial by jury, and the right against self-incrimination. 60 U.S. at 450.

In Planned Parenthood v. Casey, ____ U.S. ____, 112 S.Ct. 2791 (1992) the Supreme Court considered the constitutionality of provisions in a Pennsylvania abortion statute requiring the informed consent of the patient, a 24-hour waiting period, parental consent, spousal notification, and reporting and recordkeeping. The plaintiffs claimed that such provisions constituted a deprivation liberty in violation of the Due Process Clause of the Fourteenth Amendment. Planned Parenthood held that the substantive liberties protected by the Fourteenth Amendment against interference by the States was not limited to those rights already guaranteed against federal interference by the first eight amendments to the Constitution. In doing so, the Court listed the right to keep and bear arms in the same context as other rights which it has held to be of an individual nature:

Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9. As the second Justice Harlan recognized:

"[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `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." Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777 (Harlan, J., dissenting from dismissal on jurisdictional grounds.)


112 S.Ct. at 2805 (emp. added).

That the Court would even mention the right to keep and bear arms in a discussion of the rights protected by the Due Process Clause of the Fourteenth Amendment demonstrates that it considers the Second Amendment to guarantee an individual right. The touchstone of due process is protection of the individual against arbitrary action of government. Dent v. West Virginia, 129 U.S. 114, 123 (1889); Wolff v. McDonnell, 418 U.S. 539, 558 (1974). The First and Fourth Amendments guarantee individual, as opposed to collective, rights. See Gitlow v. New York, 268 U.S. 652 (1925)(First Amendment guarantee of freedom of speech applicable to States); Mapp v. Ohio, 367 U.S. 643 (1961)(barred use of evidence seized in violation of Fourth Amendment). The Court's opinions in Verdugo-Urquidez and Planned Parenthood demonstrate that if "the people" whose rights are guaranteed by the First, Fourth, Ninth, and Tenth Amendments are individuals, "the people" whose rights are guaranteed by the Second Amendment must also be individuals.

Conclusion

If the Second Amendment guaranteed only the right of States to maintain militias, the Supreme Court could easily have disposed of Second Amendment claims in Cruikshank, Presser, Miller v. Texas, and United States v. Miller by holding that individual citizens to not have standing to assert such a claim. Instead, the Court has consistently treated the right to keep and bear arms as a right of individuals, regardless of their affiliation with any organized militia.