Firearm case law in the United States

Firearm case law in the United States is based on decisions of the Supreme Court and other federal courts. Each of these decisions deals with the Second Amendment (which is a part of the Bill of Rights), the right to keep and bear arms, the Commerce Clause, or federal firearms laws.

United States Supreme Court cases

The Supreme Court has occasionally interpreted the Second Amendment and has also mentioned the Second Amendment when ruling on other legal matters.

Interpreting the Second Amendment

The Court also noted that the Second Amendment only restrained the federal government from regulating gun ownership, not the individual states:
"The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States."
"The Second Amendment guarantees an individual 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."[1]
In the decision, the Court said:
In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.[3]

Mentioning the Second Amendment

"It would give to persons of the negro race, ... the right to enter every other State whenever they pleased, ... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."
"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution ...the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms..."
"[T]he people' seems to have been a term of 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."

Firearm Owners Protection Act court rulings

Commerce Clause challenges to firearm laws

State courts

Bliss

Bliss v. Commonwealth (1822, KY)[12] addressed the right to bear arms pursuant to Art. 10, Sec. 23 of the Second Constitution of Kentucky (1799):[13] "That the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned." This was interpreted to include the right to carry a concealed sword in a cane. This case has been described as about "a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment."[14] Others, however, have seen no conflict with the Second Amendment by the Commonwealth of Kentucky's statute under consideration in Bliss since "The Kentucky law was aimed at concealed weapons. No one saw any conflict with the Second Amendment. As a matter of fact, most of the few people who considered the question at all believed amendments to the U.S. Constitution did not apply to state laws."[15]

The Kentucky High Court stated in Bliss, "But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution."[12] The "constitution" mentioned in this quote refers to Kentucky's Constitution.[16]

The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799) did guarantee individuals the right to bear arms. The Bliss ruling, to the extent that it dealt with concealed weapons, was overturned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850) banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth. The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, ..." "This holding was unique because it stated that the right to bear arms is absolute and unqualified."[17][18]

The importance of Bliss is also seen from the defense subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother's teacher over an accusation regarding eating chestnuts in class. Ward's defense team consisted of eighteen lawyers, including U.S. Senator John Crittenden, former Governor of Kentucky, and former United States Attorney General. The defense successfully defended Ward in 1854 through an assertion that "a man has a right to carry arms; I am aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals." As noted by Cornell, "Ward's lawyers took advantage of the doctrine advanced in Bliss and wrapped their client's action under the banner of a constitutional right to bear arms. Ward was acquitted."[19]

Aymette

Aymette v. State, 21Tenn. 154, 156 (1840), In Aymette, the Tennessee Supreme Court construed the guarantee in Tennessee’s 1834 Constitution that “ ‘the free white men of this State, have a right to keep and bear arms for their common defence.’ ” Explaining that the provision was adopted with the same goals as the Federal Constitution’s Second Amendment , the court wrote: “The words ‘bear arms’ … have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.”

Nunn

The Georgia Supreme Court ruled in Nunn v. Georgia (1 Ga. (1 Kel.) 243 (1846)) that a state law ban on handguns was unconstitutional under the Second Amendment. This was the first gun control measure to be overturned on Second Amendment grounds.[20] In District of Columbia v. Heller (2008), the U.S. Supreme Court said Nunn, "Perfectly captured the in which the operative clause of the Second Amendment furthered the purpose announced in the prefatory clause."[21]

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Carta!”

Buzzard

In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense",[22] while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." Justice Lacy, in a dissenting opinion in Buzzard, summarizing the majority viewpoint to which he disagreed, declared:

"That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms."[22]

Joel Prentiss Bishop's influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the "Arkansas doctrine" (that the State may regulate the manner in which arms are carried[23]), as the orthodox view of the right to bear arms in American law.[22][24]

Political scientist Earl Kruschke has categorized both Bliss and Buzzard as being "cases illustrating the individual view."[25] Professor Eugene Volokh revealed, in the California Political Review, that a statement in a concurring opinion in Buzzard was the only support for a collective right view of the right to keep and bear arms in the 19th century.[26]

Salina v. Blaksley

In 1905, the Kansas Supreme Court, in Salina v. Blaksley,[27] became the first court to interpret the right to keep and bear arms as being only a collective right.[28] The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which 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.'"

In 2010, Salina v. Blaksley was overruled by the passage of an amendment to the Kansas State Constitution. The amendment provides:

A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.[29]

Aguilar

In 2013, the Illinois Supreme Court in People v. Aguilar held that a total ban on carrying firearms outside the home violated the Second Amendment and was unconstitutional. Applying Heller, McDonald, and Moore v. Madigan (a Seventh Circuit decision), the Illinois Supreme Court overturned the conviction of Aguilar, stating that the right to self-defense was at the core of the Second Amendment.[30]

See also

References

  1. ↑ Text of Heller decision
  2. ↑ Gura, Alan (June 28, 2010). "McDonald - A Victory for the Second Amendment". SCOTUSblog. Retrieved 29 June 2010.
  3. ↑ Text of McDonald decision
  4. ↑ Dred Scott, Plaintiff in Error, v. John F.A. Sandford. December Term, 1856
  5. ↑ Kopel, David B. (1999). The Supreme Court's Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment. Independence Institute. Retrieved 17 March 2013.
  6. ↑ 907 F.2d 1041
  7. ↑ 5 F.3d 1378
  8. ↑ 773 F.Supp. 117
  9. ↑ U.S. v. Rybar, 103 F.3d 273
  10. ↑ http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf
  11. ↑ http://www.ca9.uscourts.gov/datastore/opinions/2006/06/30/0210318.pdf?openelement
  12. ↑ 12.0 12.1 Bliss v. Commonwealth, 2 Littell 90 (KY 1882).
  13. ↑ "Kentucky's Second Constitution (1799)" (PDF). Retrieved 2012-05-22.
  14. ↑ United States. Anti-Crime Program. Hearings Before Ninetieth Congress, First Session. Washington: U.S. Government Print. Off, 1967, p. 246. quote: "...all citizens had the unabridgable right to bear arms for self-protection as well as for militia purposes and that a statute prohibiting the carrying of concealed weapons was violative of the Second Amendment (see Bliss v. Commonwealth, 2 Litt. (Ky) 90, 13 Am. December 251 (1822))...
  15. ↑ Weir, William (1997). A Well regulated militia: the battle over gun control. North Haven, CT: Archon Books. pp. 35–36. ISBN 0-208-02423-9.
  16. ↑ Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1-58160-254-5.
  17. ↑ Pierce, Darell R. (1982). "Second Amendment Survey". Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in 1980s 10 (1): 155.
  18. ↑ Two states, Alaska and Vermont, do not require a permit or license for carrying a concealed weapon to this day, following Kentucky's original position.
  19. ↑ Cornell, Saul (2006). A WELL-REGULATED MILITIA — The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. pp. 147–149. ISBN 978-0-19-514786-5.
  20. ↑ Ph.D., Gregg Lee Carter; Carter, Gregg Lee (2012-05-31). Guns in American Society. ABC-CLIO. pp. 647–. ISBN 9780313386701. Retrieved 9 March 2013.
  21. ↑ Ph.D., Gregg Lee Carter (2012-05-04). Guns in American Society. ABC-CLIO. ISBN 9780313386718. Retrieved 19 March 2013.
  22. ↑ 22.0 22.1 22.2 State v. Buzzard, 4 Ark. (2 Pike) 18 (1842).
  23. ↑ Bishop, Joel Prentiss (1859). Commentaries on the Criminal Law. Little, Brown. pp. 81–. Retrieved 23 September 2014. A point of some embarrassment has been, whether these statutes are constitutional. The constitution of Kentucky declares, that “the rights of the citizens to bear arms in defence of themselves and the State shall not be questioned;” and a majority of the court held this statutory provision to be in violation of this constitutional guaranty, wherefore they pronounced it void. The learned judge who delivered the opinion said: “ To be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defence of the citizens and the State that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.“ On the other hand, a similar clause in the Arkansas constitution was declared by the Arkansas court not to be violated by this enactment,—the object of which is, the court considered, not to prevent the carrying of weapons in self-defence, but only to regulate the manner of carrying them.“ And the Arkansas doctrine is the one approved generally by the American tribunals.“
  24. ↑ Cornell, Saul (2006). A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. p. 188. ISBN 978-0-19-514786-5. Dillon endorsed Bishop's view that Buzzard's "Arkansas doctrine," not the libertarian views exhibited in Bliss, captured the dominant strain of American legal thinking on this question.
  25. ↑ Kruschke, Earl R. (1995). Gun control: a reference handbook. Santa Barbara, Calif: ABC-CLIO. pp. 140–143. ISBN 0-87436-695-X.
  26. ↑ Volokh, Eugene (November–December 1998). "Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998". California Political Review: 23. A recent exhaustive study reveals that there was exactly one statement in the 1800s cases or commentaries supporting the collective rights view, a concurring opinion in an 1842 Arkansas state court case.
  27. ↑ City of Salina v. Blaksley, 72 Kan. 230 (1905).
  28. ↑ Cornell, Saul (2006). A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. p. 258. ISBN 978-0-19-514786-5. ... the Kansas Supreme Court had used a similar formulation of the right to bear arms a decade earlier, describing this right as one that "refers to the people as a collective body.
  29. ↑ Kopel, David (November 3, 2010). "The Second Amendment's great election night". The Washington Examiner. Retrieved December 12, 2013.
  30. ↑ Court says gun law invalid, News-Gazette (Champaign, Ill.), Sept. 20, 2013.

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