THE SECOND AMENDMENT CONTROVERSY--EXPLAINED

by Theodore L. Johnson -- Copyright 1996

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FOREWORD

Several years ago I found myself in a situation where I inadvertently and ignorantly could have become a victim of a gun-control law. Having long been confused by the strongly-held and conflicting views of the Second Amendment's meaning and having been alarmed by that aforementioned situation, I set out to determine the actual meaning of the Second Amendment and the basis for the differing views.

My approach was to use only historical documents and court decisions in making my conclusions. Materials discussing the Second Amendment (on both sides) were used to obtain leads to finding pertinent documentation.

I met both my objectives -- unambiguously! This pamphlet sets forth my findings. It is an organized and summarized presentation of official documents with some observations and obvious conclusions. No uncovered leads or facts are suppressed. It presents the complete picture I discovered.

References are provided so that the source documentation may be readily found and personally evaluated.

I trust the reader will find this pamphlet useful in understanding the Second Amendment.

Theodore L. Johnson

NOTE: References for court decisions are identified by the name of the case followed by a parenthetic identification. An example is: "US v. Miller (83 L. Ed. 1206 (1939))." To find this decision made in the year 1939, (1) go to the local law library -- probably in or near the county courthouse, (2) get the 83rd volume of the case decision series identified by the characters following the volume number, and (3) turn to page 1206. There you will find the beginning of the decision for the U.S. v. Miller case, which continues until page 1211. If you have any trouble, ask for help from the librarian. By the way, getting your own copy of this particular decision may in itself be worth the visit.

THE SECOND AMENDMENT CONTROVERSY--EXPLAINED

The Second Amendment to the U.S. Constitution reads as follows:

With all the contentious, conflicting and adamant statements being made concerning this amendment, the above title may seem a bit ambitious. However, if all the pertinent facts are known, the controversy may be readily understood. This presentation of those facts does show the meaning of the Second Amendment of the U.S. Constitution and does show the basis for the controversy over its meaning. Although detailed implications are not addressed, the discussion is concise, objective and comprehensive. Further, no facts have been suppressed.

All references to the source documents are provided for easy verification that the quotations are pertinent, accurate and in context.

The lower federal courts have been consistently defining the Second Amendment as

The first part of this definition is based upon two Supreme Court decisions, U.S. v. Cruikshank (23 L. Ed. 588 (1876)) and Presser v. Illinois (29 L. Ed. 615 (1886)), which state that the Second Amendment does not apply to the states. The remaining parts of this definition are based upon the Supreme court decision of U.S. v. Miller (83 L. Ed. 1206 (1939)), which states that the Second Amendment protection applies to the possession or use of a firearm which has some reasonable relationship to the preservation or efficiency of a well regulated militia. Thus have the lower federal courts consistently upheld gun-control laws.

However, as what follows shows, the definition of the lower federal courts is clearly different from and conflicts with that of history, early lower court case law, Supreme Court case law, and even the grammar of the Second Amendment. In fact the definition specifically conflicts with each of the Supreme Court cases to which it refers!

In an attempt to test the conclusions in the preceding paragraph, I wrote a number of public officials, at least most of whom had taken oaths to support the U.S. Constitution, asking them to reconcile their position with at least the key facts of the material which follows. NOT ONE even attempted to reconcile their position--my letters were mostly ignored or just acknowledged, although some responses pointed to the lower court definition. The Fourth Circuit Court declined to comment on the basis of court ethics. This is the list of public officials whom I requested to furnish that reconciliation:

Point 1. -- Current Supreme Court case law defines the Second Amendment (second part) as protecting

This definition can be found in three court decisions. The first addresses the applicability to the state governments, the first two the applicability to individuals and the third the type of weapon defined by "Arms."

The Supreme Court in U.S. v. Planned Parenthood v Casey (120 L. Ed. 2d 674 (1992)), specifically bottom of left column and top of right column page 695, stated, "Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States." "The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights." "... rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution."

The Supreme Court in U.S. v. Verdugo-Urquidez (108 L. Ed. 2d 222 (1990)), specifically the bottom of the left column on page 226, indicated that "the term 'the people,' as used in the Constitution's First, Second, Fourth, 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 the United States to be considered part of that community".

The Supreme Court in U.S. v. Miller (83 L. Ed. 1207 (1939)) upheld the regulation of shotguns having a barrel of less than 18 inches in length on the basis that the court had no notice that such a weapon "was part of the ordinary military equipment or that its use could contribute to the common defense."

Point 2. -- The Supreme Court definition of the Second Amendment is consistent with the writing and ratification of the Constitution.

During the Federal Convention of 1787, discussions were focused on the relationships between the states and the federal government. Only on September 12, 1787, was the matter of a Bill of Rights briefly discussed. Inclusion was deemed unnecessary.

However, the ratification letters of five of the thirteen states indicated that securing the rights of the people as part of the Constitution was warranted, and from these positions came the Bill of Rights. With respect to Second Amendment rights, New Hampshire recommended a provision that "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion." The Virginia, North Carolina, Rhode Island and New York letters are almost identical to each other on this subject.

Virginia's ratification letter included the following: "That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People in some such manner as the following; First, That there are certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety. ... Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in the time of peace are dangerous to liberty ...; and that in all cases the military should be under strict subordination to and governed by the Civil power."

It is worthy of note that the rights of the people enumerated included the "means of protecting ... property and pursuing and obtaining ... safety." Also it is noted that the militia was considered that part of the body of people possessing and bearing arms who were trained to arms. The First Congress in 1787 responded and submitted to the states a series of amendments, including that which became the Second Amendment. Although grammatically abbreviated, the amendment tracks the two independent but related rights italicized above. However, the order is reversed.

Point 3. -- The Supreme Court definition of the Second Amendment is consistent with early state court case law.

Early state court case law recognized prohibitions against carrying concealed weapons and of carrying such things as large knives, sword canes, brass knuckles, small revolvers, etc. as constitutionally valid. However, prohibitions against such firearms as are used as weapons of war and are useful and necessary for the defense of themselves and of the state (including handguns) were held constitutionally invalid.

Early state court case law recognized the Second Amendment as binding both the state and national Legislatures.

This state court case law effectively ended in 1876 with the Supreme Court decision in U.S. v. Cruikshank, which is discussed in the Point 5.

A summary of this early state court case law and the impact on that case law by the Cruikshank decision can be found in the footnote to W VA v. Workman (14 L. R. A. 600-601 (1891)).

Point 4. -- The current Supreme Court definition of the Second Amendment is consistent with a simple logical and grammatical analysis of that amendment.

The Second Amendment is split by commas into four phrases, the last of which is a verbal phrase starting with the verb "shall":

The first two phrases are related to each other. The fact that the third phrase is separated from the verbal phrase by a comma indicates that the verbal phrase has more than the third phrase as its subject. The abbreviated grammatical construction actually renders the meaning of the Second Amendment as: "Neither a well regulated Militia, being necessary to the security of a free state, nor the right of the people to keep and bear Arms shall be infringed."

Note also that the term "arms" then and now implies military weapons.

As a side observation, millions of citizens read the Second Amendment in this manner and are thereby convinced that the Second Amendment is supposed to guarantee their right to possess and bear firearms. These citizens are thus confused by and/or deeply resentful of the infringement by the government on this right.

Point 5. -- The Supreme Court in the U.S. v. Cruikshank (23 L. Ed. 588 (1876)) decision removed the constraints of the entire Bill of Rights from the states for over seventy- five years until the Civil Rights movement succeeded. During this period, starting with the Sullivan Law, state, local and federal governments have created numerous laws and lower court case law(s) which conflict with the current Supreme Court definition of the Second Amendment. Although the Cruikshank decision has effectively been overturned and the Bill of Rights is now alive and well in the civil rights area, Second Amendment rights are still widely infringed, either through ignorance or willful disregard.

Since the lower federal court definition is the operative definition of the Second Amendment for today's government, a detailed look at the lower court arguments is useful. Love v. Peppersack (47 F. 3rd 120 (4th Cir. 1995)) is one of the latest lower court decisions presenting these arguments.

Issue 1: at the end of page 123 of the Love v. Peppersack decision, Supreme Court decisions Presser v. Illinois (29 L. Ed. 615 (1886)) and U.S. v. Cruikshank (23 L. Ed. 588 (1876)) are used to support the position that the Second Amendment does not apply to the states. Actually, to be more complete, these decisions hold that no part of the Bill of Rights applied to the states. However, even these cases recognized the intrinsic existence of rights expressed in the Second Amendment by stating:

a. "The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. 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 ..." (Cruikshank pages 591-592 and Presser page 619), and additionally

b. "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States; and, in view of this prerogative of the General Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, 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." (Presser page 619)

Further, the Supreme Court has since abandoned the position that the Bill of Rights does not apply to the states. The Supreme Court stated in U.S. v. Planned Parenthood v Casey (120 L Ed. 2d 674 (1992)) specifically bottom of left column and top of right column on page 695, "Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States." "The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights." "... rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution."

Issue Two: on page 124 of the Love v. Peppersack decision, U.S. v. Miller (83 L. Ed. 1206 (1939)) is used to support the definition that the Second Amendment preserves a collective right vice an individual right. But in U.S. v. Miller

On the contrary, the discussion within U.S. v. Miller (83 L. Ed. 1209 *[179 and following] (1939)) on the militia concept stresses individual ownership of arms:

And further, in U.S. v. Verdugo-Urquidez (108 L. Ed. 2d 222 (1990)), specifically the bottom of the column on page 226, the Supreme Court indicated that: "the term 'the people,' as used in the Constitution's First, Second, Fourth, Ninth, and Tenth Amendments, refers to a class of persons who are of a national community or who have otherwise developed sufficient connection with the United States to be considered part of that community".

(An interessting statement on page 124 of Love v. Peppersack regarding U.S. v. Miller is: "... the defendant had not shown ...". This quote indicates ignorance of the facts that there were actually two defendants in U.S. v. Miller and that neither were in appearance when the Supreme Court heard the case.)

Issues Three and Four: what then is the significance of the statement in U.S. v. Miller referring to the Amendment as relating to the militia? The specific portion mentioned is found in Headnote 2. The portion Love v. Peppersack quoted seems to exist to justify the U.S. v. Miller conclusion that not all firearms are protected by the Second Amendment. This conclusion is found in Headnote 3: "It is not within judicial notice that a shotgun having a barrel of less than 18 inches in length is any part of the ordinary military equipment or that its use could contribute to the common defense." The fact that Headnote 2 points to the term "arms" vice the term "the people" in the Second Amendment is further substantiated by the footnote on page 209 of Lewis v. United States (63 L. Ed. 2d 198 (1980)): "See United States v. Miller, 307 US 174, 178, 83 L. Ed. 1206, 69 S Ct 816 (1939)(the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia")".

Love v. Peppersack also ignores other evidence that the Second Amendment pertains to the rights of the individual citizen to possess and bear arms and is binding on the states. As previously shown this evidence is found in: a. The history of the Bill of Rights (See Point 2.), b. Early lower court case law (See Point 3.), and c. Grammatical construction of the Second Amendment (See Point 4.).

The lower court definition is therefore based on (1) reversing the meaning of a statement in U.S. v. Miller (it presumes the statement points to "people's possession or use" vice "possession or use of arms") and (2) selectively reading U.S. v. Cruikshank and Presser v. Illinois and (3) ignoring history, early lower court case law, current Supreme Court case law and the grammatical construction of the Second Amendment.

Perhaps the preceding can be summarized as follows:

(Copyright 1996)