The Supreme Court has repeatedly suggested an individual right
The Supreme Court Has Repeatedly Suggested That the Second Amendment Secures an Individual Right.
The Supreme Court has never decided whether ?the right of the people? protected by Second Amendment inheres in individuals or is rather, as some suggest, ?collective.? Contrary to well-circulated myth, however, the Supreme Court?s only direct examination of the Second Amendment apparently supports the individual rights model. Miller, 307 U.S. at 174.
See also Misreading Miller. Reading US v Miller to support a militia-only collective right is extremely common but incorrect.
Miller raised a Second Amendment challenge to his indictment under the National Firearms Act for possession of an untaxed sawed-off shotgun. Rather than focus on the nature of the substantive right claimed by Miller, the Supreme Court focused on the sawed-off shotgun to which Miller claimed a right. Miller began by noting that among the powers of Congress lie certain prerogatives regarding ?the Militia.? U.S. Const. art. I, sec. 8, cl. 15 (?to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions?); U.S. Const. art. I, sec. 8, cl. 16 (?to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States . . .?). As the Second Amendment contains a prefatory justification clause providing, ?A well regulated Militia being necessary to the security of a free state,? U.S. Const. amend. II, Miller reasoned that ?[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.? Miller, 307 U.S. at 178.
?With that end in view,? the Supreme Court next set out to define ?the militia,? concluding that ?militia? referred simply to members of the public capable of bearing arms in defense of the government if called upon to do so:
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.
Miller, 307 U.S. at 178-79 (emphasis added). Reviewing ?the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators,? the Supreme Court determined
that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Miller, 307 U.S. at 179 (emphasis added). The ?militia system . . . implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.? Miller, 307 U.S. at 179-80 (citation omitted).
It is worth noting here that the militia system as implemented at the time the Constitution was written did involve some gun control laws. Those laws did things like require adult male citizens to own a firearm, keep a certain amount of powder and ammunition on hand, show up for weekly inspections and training, and provide for public funds to purchase firearms for those unable to afford them -- such funds to be repaid by labor or coin within a specified time, in case anyone was getting excited about a proto-welfare state.
That is a tradition that we have, sadly, lost.
As the Fifth Circuit explained in Emerson, the Supreme Court?s treatment of the issue in Miller indicates that the militia ?referred to the generality of the civilian male inhabitants . . . and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units.? Emerson, 270 F.3d at 226.
See also my reporting on the Emerson case. It's thinner than I remember writing, though, so I'll probably have to fill in the gaps later. The short version is, Emerson was a Texas doctor who went through a messy divorce, had some nasty allegations made about him by his ex-wife involving threats, had a restraining order issued against him (as is almost routine), then was charged with possessing a handgun while the restraining order was in effect. He fought the charges on the basis of the Second Amendment right to keep and bear arms, and won in the lower court. The appeals court reversed, saying that the Second Amendment does not bar limitations of rights with appropriate due process and the restraining order had minimally sufficient due process to survive the challenge, while finding that Emerson did in fact have an individual right to keep and bear arms. The Supreme Court denied cert.
Despite the outcome it is one of the most significant of the modern Second Amendment cases out there, not least because it creates a circuit split; the 5th Circuit held in that case that the 2nd Amendment protects an individual right and the 9th Circuit has held in other recent cases that the 2nd Amendment "protects" a practically-nonexistant collective right. A circuit split is one of those situations that the Supreme Court prefers to resolve itself.
The Miller defendants? membership in the constitutional ?Militia? was unquestioned. ?Had the lack of [militia] membership or engagement been a ground of the decision in Miller, the Court?s opinion would obviously have made mention of it. But it did not.? Emerson, 270 F.3d at 224 (footnote omitted).
Rather, the case turned on whether the sawed-off shot gun in question was a weapon in ordinary use suitable for such common defense:
In the absence of any evidence tending to show that possession or use of a ?shotgun having a barrel of less than eighteen inches in length? at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
Miller, 307 U.S. at 178 (emphasis added) (citation omitted).
Miller?s expansive definition of ?militia? as comprising private individuals capable of acting for the common defense and ?expected to appear bearing arms supplied by themselves and of the kind in common use,? Miller, 307 U.S. at 179, has never been questioned by the Supreme Court. In referencing the case, subsequent Supreme Court opinions confirmed that Miller merely set forth a test for whether a particular weapon is covered by the Second Amendment. Printz v. United States, 521 U.S. 898, 938 n.1 (1997) (Thomas, J., concurring); see also Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (Miller held that ?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.??)
In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court was called upon to define ?the people? entitled to the Fourth Amendment?s protection against unreasonable searches and seizures:?[T]he 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.
This is Constitutional mojo that's pretty hard to shake. The Constitutional usage of "the people" is consistent across the Bill of Rights (as well as the rest of the document). By this argument, if we have an individual right to speak freely, assemble freely, practice our religion freely, and so on, then we must also have a right to keep and bear firearms freely. Most arguments suggesting otherwise focus on the militia clause, believing (as a matter of convenience) that it overrides or limits the reference to "the people".
Verdugo-Urquidez, 494 U.S. at 265 (citation omitted) (emphasis added); see also Patton v. United States, 281 U.S. 276, 298 (1930) (?The first ten amendments and the original Constitution were substantially contemporaneous and should be construed in pari materia.?), overruled on other grounds, Williams v. Florida, 399 U.S. 78 (1970).
Likewise, the infamous Dred Scott case argued no Southern state would have adopted a constitution obligating it to respect privileges and immunities of citizenship held by African-Americans, including ?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.? Scott v. Sandford, 60 U.S. 393, 417 (1857) (emphasis added).
The Dredd Scott decision isn't exactly a high point of Supreme Court jurisprudence, being as it is a distinctly anti-civil-rights case. Nonetheless it is useful for its enumeration of the common and expected rights of citizens (which, in context, were being denied to black citizens). Keep that in mind if you read any news reports or commentary criticizing the case for citing Dredd Scott. The same rights that were denied to black citizens in the South are presently being denied to all citizens in the District of Columbia, regardless of race. Our case seeks to restore those rights.
The Supreme Court has never described the explicit protections of the Bill of Rights as being set forth only in the First and Third through Eighth Amendments. Rather, the Court has spoken favorably of 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 . . .
Duncan v. Louisiana, 391 U.S. 145, 166-67 (1968) (Black, J., concurring) (quoting statement of Sen. Howard, Cong. Globe, 39th Cong, 1st Sess., 2765-2766 (1866) (emphasis added)). ?[L]iberty encompasses  more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments." Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992) (emphasis added). Thus, [t]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.Casey, 505 U.S. at 848 (quoting Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting) (emphasis added)); Moore v. City of East Cleveland, 431 U.S. 494 (1977) (same).
Planned Parenthood v Casey is an interesting cite. It's one of the major abortion cases, a followup to Roe v Wade. The latter decision is infamous for it's "penumbra" of rights that "emanate" from the right to "privacy" never mentioned in the Constitution. I suppose it's inclusion is meant somewhat to appeal to the more liberal members of the court, who may need reminding that one of their most cherished rights is protected by a far slimmer legal threat than the 2nd.
Thus, although the ?collective rights? theories find no support in Supreme Court precedent, the Supreme Court has long indicated that the right to keep and bear arms is no different from any other constitutional right: rights belonging to ?the people? belong to individuals.
The most frustrating part of this whole situation is that, in fact, the Supreme Court has made its pseudoposition clear without actually having the guts to decide a case that way and start knocking down some gun control laws.