While most people are probably familiar with the Second Amendment of the United States, many are unaware of its legal history. The Second Amendment says: “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.”
Did you know that before 2008, the U.S. Supreme Court had heard only a few cases concerning the Second Amendment? The cases are United States v. Cruikshank, 92 U.S. 542 (1876), Presser v. Illinois, 116 U. S. 252 (1886), and United States v. Miller, 307 U.S. 174 (1939).
In United States v. Cruikshank, the U.S. Supreme Court was asked to overturn the convictions of members of an armed white militia that on Easter in 1873 attacked African American freemen who had gathered at a Louisiana courthouse to protect it from a takeover. Some of the freemen had weapons. A battle ensued. It’s estimated over 100 African-American freemen were killed, many after they had surrendered. Federal criminal charges were brought against members of the white militia. Some of the charges included violations of the Enforcement Act, which made it a crime for two or more people to conspire to deprive anyone of their constitutional rights. It was argued the freemen’s Second Amendment right to bear arms had been violated by the white militia.
In Cruikshank, the Supreme Court found “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.” According to this case, the Second Amendment did not guarantee an individual the right to bear arms.
In Presser v. Illinois, Mr. Presser established a private military organization contrary to Illinois law. The U.S. Supreme Court held that “unless restrained by their own constitutions, state legislatures may enact statutes to control and regulate all organizations, drilling, and parading of military bodies and associations except those which are authorized by the militia laws of the United States.” In this case, the Court determined there was no Second Amendment violation when a state bans private citizens from forming personal military groups or parading with arms.
In United States v. Miller, the Supreme Court was asked to determine if the National Firearms Act of 1934 was unconstitutional. The National Firearms Act required that certain firearms, such as fully automatic weapons and short-barreled shotguns, be registered and taxed. In Miller, the Court found the Second Amendment did not apply to the possession of a firearm that did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” (See 554 U.S., at 109) Thus, the National Firearms Act regulating firearms was not unconstitutional.
In 2008, in the landmark decision of District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court, for the very first time, recognized that according to the Second Amendment an individual had a right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. McDonald v. Chicago, 561 U.S. 742 (2010) affirmed Heller and made it applicable to state governments.
In the Heller case, the majority opinion, written by Justice Antonin Scalia, also stated: “Like most rights, 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.”
Justice Scalia also specified, “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.”
A better understanding of the legal history will hopefully help everyone avoid misconceptions concerning a person’s right to bear arms; the legislative authority to limit this right; the judicial responsibility to determine the constitutionality of the right and any limitation; and any executive governing agency obligation to enforce and abide by these laws and determinations. As elected officials and government employees, we have a responsibility and duty to follow this process and the governing principles established by our Constitution.
Judge Frank Sedillo presides over the civil division of the Bernalillo County Metropolitan Court. Opinions expressed here are solely those of the judge individually and not those of the court.