There are few issues in contemporary American society that commands as much response as does the issue of the 2nd amendment. Since the inception of the Bill of Rights in 1791, the 2nd amendment has read: “a well organized militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. ” There has been a great deal of discussion over the language of the amendment. What exactly is a militia?
What has the courts said in the past about this issue? Pro gun rights advocates have stressed the idea that the right to bear arms belongs to the people, whereas gun control advocates have stated that the 2nd amendment does not apply to those who are not part of a well organized militia which would mean a the vast majority of those Americans who currently and lawfully own a gun. Over the last hundred and twenty years, the Supreme Court has dealt these exact questions.
Their initial findings, coupled with the fact that the Supreme Court, as of late, have been very reluctant to take any future 2nd amendment cases, preferring instead to rule on the side of stari decisis
What is certain is the fact that despite the Supreme Court’s reaction to the issue as being resolved, the American people will continue to wrestle internally with the language of the 2nd amendment and to either agree or disagree with the ruling of the Supreme Court over the years. There were few attempts to attack the 2nd amendment until towards the end of Reconstruction. The South had lost the Civil War and as a result of their surrender and in an effort to ensure that African Americans would enjoy an expansion of their rights as read under the Constitution, Union military rule was imposed upon the former Confederate States from 1865 until 1877. In 1876, as the North was growing tired of the effort, one of the most important cases came before the Supreme Court which dealt with the 2nd amendment.
In United States vs. Cruikshank, (1876) African Americans sued for the right to carry guns, or at least to retain possession of their firearms. In the state of Louisiana, a number of the town’s people had become weary at the sight of former slaves having the right to carry guns. One night, more than a hundred local whites, gathered in order to take these guns away from the African Americans who had possession of these guns. Upon retrieving them, the African Americans sued to have them returned, citing the protection under the 1st, 2nd and 14th amendments; the right to peacefully assemble, bear arms and that African Americans were to enjoy the same rights as whites as the 14th and 15th amendments established citizenship for African Americans.
The Supreme Court, in one of the rare cases in which the rights of American citizens to bear arms was indeed severely curtailed, the Supreme Court cited with the government. The Supreme Court would state that the 2nd amendment did protect the individual’s right to bear arms, but only when it was the government that was infringing upon those rights. The 2nd amendment did not protect states from regulating gun ownership. Also, the 14th amendment prohibited the state from depriving the people of their rights and the white men, who took the guns away from the African Americans, were not agents of the state. The decision of the Supreme Court could easily be passed away as racism, plain and simple.
The Supreme Court at that time was not known for its modern stance on civil rights and perhaps, if the plaintiff had been white, the decision would have been different. These are all fair assumptions except for the fact that only seven years later, another case involving the jurisdiction of the 2nd amendment concerning its application within the states would be tested with a case in Chicago. Presser vs. Illinois (1885) In Presser vs. Illinois (1886) the issue of state’s rights as well as the definition of a militia, would be put into play. Presser, in December of 1879, along with more than four hundred others, paraded down the streets of Chicago, while holding and displaying their various firearms.
The charge read: “Presser did unlawfully belong to, and did parade and drill in the city of Chicago, with an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license. ” Presser was cited with a $10 fine for not having a license from the governor of Illinois to make such a display, and was not part of a well organized militia or part of the American Army as was stated as the prerequisite for gun ownership as reads the 2nd amendment. The Supreme Court, upon deciding the case, upheld United States vs. Cruikshank by stating that as long as the federal government does not infringe upon the individual’s rights, the states could regulate the rights of the individual regarding this action.
The Supreme court stated: “But a conclusive answer to the contention that this amendment (The second amendment) prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the national government and not upon that of the state” In saying as much, the Supreme court reaffirmed the notion that the 2nd amendment acts as a limitation upon the federal government regarding infringement upon an individual’s right regarding the 2nd amendment, not the state.
The Supreme Court went on to say: “the States cannot…. prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government…. We think it clear that the sections under consideration do not have this effect. ” Presser would not be the last time that the Supreme Court would comment on the rights of the individual vs. the state with regard to the 2nd amendment. One of the most important 2nd amendment cases to come before the Supreme Court in the 20th century, United States vs. Miller (1939) Jack Miller and Frank Layton were indicted for transporting an unregistered shotgun that had a barrel of less than 18 inches. This was in violation of the 1934 national Firearms Act.
Layton accepted a plea bargain but Miller refused, saying that his indictment violated the rights afforded to him under the 2nd amendment. On January 2, 1939, the District Court agreed with Miller and threw out his indictment. The case would then be heard by the Supreme Court. A dubious distinction regarding this case was the fact that neither Miller, his co defendant, nor their attorney appeared before the Court. In their decision, the Court upheld the federal law which made it illegal to transport altered firearms across state lines and the lower courts ruling was overturned.
The Court stated: “in the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length,… we cannot say that the Second amendment guarantees that right to keep and bear such an instrument. ” Since the time of United States vs. Miller (1939) there have been more than two hundred federal and state appellate cases. The Court has repeatedly refused to review challenges to the 2nd amendment on a federal level. As a result, Miller can be read in a number of different ways. Those who support one’s right to bear arms, whereas, those who support state’s rights in placing restrictions upon the 2nd amendment and citing the language of the 2nd amendment to believe that only well organized militias have the right to bear arms.
Also, in doing so, those who seek to repeal the 2nd amendment, know that if the state’s have the power to place their own definition upon what rights regarding the 2nd amendment, can be allowed. In the eyes of the Supreme Court, the reading of the 2nd amendment, coupled with the various rulings by the Supreme court over the years, has made their decision in future cases, self evident. As a result, the Supreme Court since 1939, has watched with interest, nearly two hundred federal and state challenges to the ruling over the 2nd amendment in one way or another. It will be unlikely that the 2nd amendment will be overturned in the near future although with America’s rising violent crimes, states which attempt to strengthen their gun control laws, will have public opinion on their side.