Selective v. Total Incorporation

For most of its history, the Supreme Court has applied the Bill of Rights selectively to state and local governments, particularly with the Second Amendment.

Even the Supreme Court led by Chief Justice Earl Warren, which incorporated almost all the provisions of the Bill of Rights in the 1960s, largely ignored the Second Amendment. Until very recently, the Supreme Court has ruled that the Second Amendment is not “fundamental” to liberty, unlike the rights to freedom of speech, religion and assembly, which state laws cannot restrict.

From United States v. Cruikshank in 1875 to District of Columbia v. Heller in 2008, the Supreme Court held that states can impose broad restrictions on firearm possession without violating the Constitution or the Bill of Rights. Thanks to the decisions handed down in Columbia v. Heller in 2008 and McDonald v. Chicago in 2010, states are now bound to respect the Second Amendment. Even today, however, firearm possession is not an unlimited right. State and local governments are allowed to restrict and regulate firearms in a “reasonable” manner.

United States v. Cruikshank (1875)

The United States v. Cruikshank was the Second Amendment’s first real test under the incorporation doctrine. For gun owners, Cruikshank marked the start of more than a century of unchecked regulation by the states.

The case arose during a disputed gubernatorial election between Reconstruction Republicans and Democrats in Louisiana. Both the Democratic and Republican candidates for governor claimed victory. President Ulysses S. Grant sent in federal troops to support the Republican government, but Democrats refused to acknowledge their loss.

The state’s nearly all-black militia gathered at the Colfax County courthouse to prevent the Democratic candidates from assuming local offices. Members of the White League, an armed paramilitary group of white Democrats, attacked and killed more than a hundred militiamen, an event which became known as the Colfax County Massacre.

Because state courts would not bring murder charges against whites for killing blacks, federal charges were brought against the White League for violating the black militiamen’s right to bear arms and freely assemble.

The Supreme Court overruled the convictions of Cruikshank and other White League members, arguing that the First and Second Amendments apply only to the federal government, not state or local governments nor individual citizens. The Court wrote that the “Second Amendment has no other effect than to restrict the powers of the National Government.”

In legalese, the Supreme Court ruled that the right to keep and bear arms is an “unincorporated” right, and only Congress was barred from restricting the Second Amendment, not states or individuals. Although states could restrict citizens’ gun rights, they couldn’t outlaw guns altogether. Doing so would deprive the United States of its “well regulated militia.”

The Court held in United States v. Cruikshank that the individual had no inherent Second Amendment rights. For more than a hundred years, this interpretation of the Second Amendment would go largely unchallenged. An individual’s right to bear arms would be left up to the states, to allow or restrict as they deemed fit.

Presser v. Illinois (1886)

The next major Supreme Court case about the Second Amendment came a decade after United States v. Cruikshank, and supported its conclusion that states had the power to restrict the right to keep and bear arms.

It started in Illinois, where Herman Presser gathered and trained his fellow German-American industrial workers in military drills, maneuvers and tactics. They called themselves the Instruct and Defend Association. Presser wanted to build a militia to oppose the private security firms like Pinkerton that were often hired by employers to break strikes and intimidate workers.

After Presser and four hundred of his fellow militiamen paraded through Chicago armed with rifles, he was arrested and charged with violating the state’s laws against military organizations. Presser argued that the state’s law was unconstitutional, as the Second Amendment granted him the right to form and maintain his own “well regulated” militia.

The Supreme Court affirmed the judgment it had made in the Cruikshank case: the Second Amendment did not apply to the states and so the states were free to regulate or ban private militias and guns in any way they chose.

The Court also interpreted the Second Amendment only to guarantee a state’s right to maintain a “well regulated” militia, but not an individual’s right to bear arms. In other words, outside of service in a state-approved militia, citizens had no inherent, personal or private right to bear arms for the purposes of hunting or self-defense.

United States v. Miller (1939)

In 1934, the Roosevelt administration signed the National Firearms Act into law. The NFA was inspired by the government’s failed Prohibition policy under the Eighteenth Amendment and the explosion of heavily armed organized crime that followed. The NFA imposed a $200 mandatory registration tax on so-called Title II weapons like machine guns, short-barreled rifles, shotguns and suppressors that were allegedly popular with bootlegging gangsters. In today’s dollars, that tax would be about $3,540, which made purchasing such Title II weapons very expensive for law-abiding citizens and bootleggers alike.

In addition to paying the tax and registering the weapon with the Miscellaneous Tax Unit, which would later be folded into the Bureau of Alcohol, Tobacco, Firearms and Explosives, owners of Title II weapons had to secure written permission from the agency before moving a controlled weapon across state lines.

United States v. Miller began when a pair of bank robbers, Frank Layton and Jack Miller, were stopped by a patrolman while traveling from Oklahoma to Arkansas in 1939. The two men were carrying an unregistered sawed-off shotgun and were arrested under the NFA’s Title II weapons provision.

Miller and Layton challenged the National Firearms Act as a violation of the Second Amendment, but skipped town during the Supreme Court’s deliberation.

With no one to speak for the plaintiffs, the government held that the National Firearms Act was constitutional, arguing that the law was a revenue-collecting measure only, and not a gun control law. Because Miller and Layton transferred the shotgun across state lines, it fell under the Commerce Clause of the Constitution, which grants the federal government the right to regulate interstate trade.

The government also argued that the Second Amendment only protects the right to keep and bear arms that could reasonably be used by a “well regulated militia.” Other than point out that Miller’s shotgun had never been used in militia service, the government made no compelling argument that sawed-off shotguns could never have a place in a militiaman’s hands. The argument rested on the “collective” interpretation of the Second Amendment, which holds that the right to keep and bear arms exists only to guarantee the states’ right to an effective militia, and is not an inherent individual right.

The Supreme Court favored the government’s argument and held the NFA was constitutional, but the Miller decision remains controversial to this day. Because the Supreme Court accepted the government’s argument that only guns that could “reasonably” be used in a militia are protected by the Second Amendment, by its own admission, machine guns could very well be protected.

Years later, the Supreme Court would reinterpret the Miller decision to mean that the Second Amendment only applies to certain kinds of weapons, but did not decide whether those are related only to militia service or to hunting and personal defense.

The constitutionality of California’s assault weapons ban, which rests on the Miller decision allowing restrictions on “unusual” or “dangerous” guns, is now being challenged in light of the Supreme Court’s recent rulings in Heller and McDonald.

District of Columbia v. Heller (2008)

The Second Amendment did not fully protect an individual’s right to keep arms for self-defense until a policeman challenged the District of Columbia’s handgun ban in 2008.

Since 1976, the District had implemented a covert ban on handguns by prohibiting residents from carrying unregistered handguns while refusing to issue any registrations. Residents could have an unregistered handgun in their homes, but it had to be unloaded, disassembled or rendered inoperable by a trigger lock.

Under the ordinance, residents of the District could not even carry an assembled, loaded handgun from room to room in their own homes without a registration!

Dick Heller, a D.C. special policeman, applied to register a handgun he planned to keep loaded in his home. The District refused, and Heller filed suit on Second Amendment grounds to overturn the ordinance.

After a narrow 5-4 vote, the Supreme Court held that D.C.’s handgun ban violated an individual’s Second Amendment right to bear arms for lawful purposes such as self-defense.

Crucially, the Supreme Court ruled that the right to keep and bear arms is an individual right, unconnected with service in a militia. 122 years after Presser, the “individual” interpretation of the Second Amendment finally got its day in court and won.

The Court’s opinion, written by the late Justice Antony Scalia, was careful to make sure the Heller decision could not be interpreted too broadly.

“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 and for whatever purpose,” Scalia wrote.

The Court’s decision in Heller could not be used to overthrow laws preventing felons and the mentally ill from buying firearms, or allow citizens to carry firearms into schools or government buildings. The Court ruled that only weapons “in common use” like handguns are protected by the Second Amendment and that dangerous or unusual weapons could still be prohibited.

The Supreme Court’s decision in Heller established the individual’s right to keep and bear arms in federal enclaves like the District of Columbia, but it did not prevent states from continuing to put blanket restrictions on firearms. The right to keep and bear arms was not fully incorporated to the states until 2010, in McDonald v. Chicago.

McDonald v. Chicago (2010)

The case arose when a few Chicago residents challenged a city ordinance that effectively banned the possession of handguns.

Like the District of Columbia, Chicago banned handguns by requiring them to be registered while refusing to issue any registrations.

Otis McDonald, a retired maintenance engineer and a hunter, legally owned shotguns. But he thought they were unwieldy in the event of a robbery, and so he wanted to purchase and register a handgun to defend his home. In 2008, McDonald joined three other Chicago residents in a lawsuit to challenge Chicago’s handgun ban as a violation of their Second Amendment rights.

In another narrow 5-4 decision, the Supreme Court held that the Second Amendment applies to the states and reaffirmed its ruling under Heller that the right to keep and bear arms is an individual right guaranteed by the due process clause of the Fourteenth Amendment. The decision overturned United States v. Cruikshank, where the Supreme Court held that the Second Amendment is an unincorporated right that applies only to the federal government and not to the states.

The Court’s opinion, written by Justice Alito, argued that the individual right to keep and bear arms for self-defense is “deeply rooted” and “fundamental” to the American ideal of liberty, and that handguns were the “quintessential self-defense weapon.” The Court also struck down Chicago’s requirement to keep handguns in the home unloaded and inoperable, arguing that it interfered with the lawful use of handguns for self-defense.

The McDonald case upheld the individual’s right to possess guns for self-defense and hunting, again overruling the “collective” interpretation of the Second Amendment established by the Presser case, which held that the right to bear arms only exists to support the states’ right to an effective militia.

After nearly a century and a half of debate, the Supreme Court ruled that the individual’s Second Amendment right to keep and bear arms for lawful purposes could not be abridged by the states.

Current Challenges: 2nd Amendment Supreme Court Cases

The Supreme Court’s landmark decisions in Heller and McDonald have led to a host of challenges to state and municipal restrictions on the right to bear arms.

In 2014, in Palmer v. District of Columbia, a federal judge overruled the District’s ban on carrying ready-to-use firearms in public. The same year, a federal judge struck down New York’s seven-round ammunition limit (10 rounds if being used in an incorporated firing range). In Peruta v. County of San Diego and Richards v. Prieto, the Ninth Circuit Court of Appeals removed restrictive concealed-carry requirements in some California counties – both Peruta and Prieto overturned by 2017.

Gun rights advocates are finally on the winning side, but serious obstacles still remain. Legal challenges to assault weapon bans in California and New York have failed even in light of the Supreme Court’s rulings in Heller and McDonald, thanks to the controversial legacy left by the Miller case.

California’s Fourth District Court ruled in 2013 that AK- and AR-type semi-automatic rifles are at least as “dangerous” and “unusual” as short-barreled shotguns, which were prohibited by the Miller decision. While outright assault weapon bans have not made it out of lower-level state and federal courts, blocked by the Miller ruling that only weapons “in common use” are protected by the Second Amendment, California is seeing some substantial gun restrictions going into 2018.

In the absence of a definitive Supreme Court ruling, it’s still up to the states to decide which types of weapons are “dangerous” or “unusual.”

“The Supreme Court and the Second Amendment: Understanding the Court’s Landmark Decisions” originally appeared in the Resistance Library on Ammo.com.