[Copyright © 1996 Cumberland Law Review.
Originally published as 26 Cumb. L. Rev.
961-1004 (1996). For educational use only. The printed
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CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT
INTERPRETATIONS OF UNITED STATES V. MILLER AND
THE SECOND AMENDMENT
When courts fail to engage in oversight or
even distort the Constitution to rationalize the ultra vires actions of
government, and when academics and political activists aid and abet them in
this activity by devising ingenious rationalizations for ignoring the
Constitution's words, they are playing a most dangerous game. For they are
putting at risk the legitimacy of the lawmaking process and risking the
permanent disaffection of significant segments of the people.
A. Second Amendment Scholarship and the
In his recent Boston University Law
Review article entitled Gun Crazy: Constitutional False Consciousness
and Dereliction of Dialogic Responsibility, Andrew Herz blasts recent Second Amendment scholarship for promoting
a "constitutional (p.962)fish story
told by the gun lobby, swallowed by the public, and rarely challenged by
politicians, the media, or legal scholars." In particular, he accuses legal scholars who have written
on the Second Amendment of failing "to discuss a central aspect of the
legal 'truth' about the Second Amendment--that the courts constantly reject the
gun lobby's broad-individual-right position."
Herz is at least partially correct--most of the recent
scholarship on the Second Amendment has focused on the origins of the right and
how that right was understood by the Framers.
Such historical research is necessary, for judges as well as scholars, to aid
in the interpretation of any amendment to, or provision of, the Constitution.
This new research, for example, demonstrates the error of many of the
assumptions about the nature of militias and private citizens' roles in them. Though extremely interesting, such issues are
outside the scope of this article.
My purpose in writing this article is to fill a void in the
Second Amendment scholarship. Picking up Professor Herz's gauntlet, I propose
to take on Second Amendment critics where they feel unassailable: the case
law. In particular, I will focus on United
States v. Miller, the only Supreme
Court decision directly interpreting the Second Amendment in this century; and,
to avoid Herz's charges of a "Supreme Court-only tunnel vision," I will also examine the subsequent
(p.963)lower federal court interpretations
and applications of Miller. I will argue that the lower courts have
strayed so far from the Court's original holding to the point of being
intellectually dishonest. In illustrating both the depth and breadth of the
lower courts' dishonesty, I will draw upon Karl Llewellyn's studies of
appellate court decisionmaking.
Certainly, the elite bar has lined up behind Professor Herz and
seems to be in favor of "[l]etting settled law lie." The public statements of the American Bar Association
provide concrete examples of how lower courts' erroneous interpretations of the
Miller decision have effected the constitutional debate surrounding the
meaning of the Second Amendment. In
August, 1994, the American Bar Association's Task Force on Gun Violence issued
a series of recommendations to the ABA's House of Delegates. One recommendation called upon "leaders of the legal
profession" to "[e]ducate the public and lawmakers regarding the
meaning of the Second Amendment to the United States Constitution." The purpose:
to make widely known the fact
that the United States Supreme Court and lower federal courts have
consistently, uniformly held that the Second Amendment to the United States
Constitution right to bear arms is related to "a well regulated
militia" and that there are no federal constitutional decisions which
preclude regulation of firearms in private hands ....
Edward E. Kallgren, the Chairman of the
ABA's Coordinating Committee on Gun Violence, further fleshed out the ABA's
position on the Second Amendment in a 1993 statement given to the House
Subcommittee on Crime. In his
(p.964)statement, Mr. Kallgren outlined
the position of the ABA regarding the "considerable confusion and
misunderstanding about the meaning of the Second Amendment and ... the power of
the federal government to enact laws regulating firearms in private
hands." Mr. Kallgren assured the
House subcommittee there was "no confusion in the law itself" because
"[f]ederal and state court decisions in this century have been uniform in
the view that the Second Amendment permits the exercise of broad power to limit
private access to firearms by all levels of government."
According to Mr. Kallgren, Miller held that "the
scope of the people's right to bear arms is qualified by the introductory
phrase of the Second Amendment regarding the necessity of a 'well regulated
militia' for the 'security of a free State.'" Mr. Kallgren also argued that Miller "held
that the 'obvious purpose' of the Amendment was 'to assure the continuation and
... effectiveness of' the state militias" and cautioned that the Amendment
"'must be interpreted and applied with that end in view.'" "The absolutist view of the Second
Amendment," a view Mr. Kallgren obviously does not share, "argued by
some opponents of regulation of firearms has not been sustained by a single
U.S. Supreme Court or lower court decision in our nation's history." The real question for Congress, said Mr.
Kallgren (and presumably the American Bar Association), is "where to draw
the line to balance interests of gun owners and manufacturers with public
safety and public order."
Mr. Kallgren concluded his testimony by citing statistics
illustrating that "[g]un violence in the United States is a grave national
problem." To eliminate it, Mr.
Kallgren and the (p.965)ABA recommended
Congress take appropriate regulatory steps "to reduce the tragic carnage
of gun-related deaths and injuries plaguing this country." Kallgren assured the subcommittee that because the
"Constitution clearly permits such regulation, ... the Second Amendment
cannot be used as a reason for not adopting [such legislation]." Thus, rather than balancing interests, the
ABA merely read the Second Amendment to contain not even token constraints on
the power of Congress to regulate, or even prohibit, gun ownership.
Professor Herz's and the ABA's conclusion that the Second
Amendment provides no constitutional impediment to the regulation of
privately-held arms proceeds from two premises: first, that the Supreme Court
in Miller held that the Second Amendment guaranteed no individual right
to keep and bear firearms; second, that lower courts have honestly,
consistently, and uniformly applied the holding in Miller and have all
arrived at the same conclusion. Imbedded within this argument, however, are two
very important implied premises: first, that the Supreme Court's Miller
decision actually held what Herz and Kallgren say it held; and second,
that subsequent lower court decisions have honestly interpreted and
consistently applied Miller when deciding Second Amendment cases.
This article challenges the conclusions regarding Miller
and the Second Amendment shared not only by the ABA, but also by most lower
federal court opinions that purport to apply Miller and to interpret the
Second Amendment. First, I intend to make clear that Miller, perhaps
more than the Second Amendment, is the subject of "considerable confusion
and misunderstanding." To paraphrase Mr. Kallgren, there is perhaps no
other Supreme Court decision in our nation's history that has been "more
distorted and cluttered by misinformation than this one." Second, I intend
to show that the lower federal courts have consistently misinterpreted the
Court's holding in Miller. I will also speculate upon the causes and
political consequences of such casual judicial attitudes toward the Second
B. Appellate Courts and Second Amendment
Cases: A Question of Legitimacy
1. Karl Llewellyn and Appellate Court
a) Trusting the Simple Cite
An examination of how Miller has
been misused by lower federal courts should begin with questions about the role
of appellate court decision-making. In 1960, Karl Llewellyn wrote that courts
were feeling less and less constrained by precedent and that the "Formal
Style" deference to precedent was eroding. An entire chapter of his seminal work on the appellate
decisionmaking process was devoted to categorizing legitimate and illegitimate
techniques that courts use to escape the gravitational pull of precedent.
While Llewellyn did not necessarily think that abandonment
of stare decisis was always a bad thing, he did warn of the growing loss
of confidence among older members of the bar in the predictability of appellate
decisions. Even more alarming to Llewellyn was the growing sentiment among the
younger members of the bar that one could not predict appellate
outcomes from existing doctrines, and that the judges just rationalized
predetermined outcomes, whatever the law might be. Still "worst" for Llewellyn was that "the
courts themselves may by tomorrow have lost their own feeling for and
responsibility to continuity."
Llewellyn noted many techniques that have been developed for evading
responsibility for court decisions by courts themselves. As lower federal court
opinions which purport to apply Miller are examined, several of these
techniques will become readily recognizable. The question that most often
arises in the case of post-Miller federal court opinions is that which
Llewellyn asks: "Can the Simple Site Be Trusted?" By posing such a question, Llewellyn is
asking whether, when a court cites a case in support of its statement of the
law, the case so cited actually stands for that proposition. As that same
question is posed to (p.967)courts citing
Miller in support of various sweeping statements about the Second
Amendment, the answer, sadly, is "No."
b) Manhandling the Facts
One of Llewellyn's illegitimate
precedent-avoidance techniques is described as
manhandling ... the facts of
the pending case, or of the precedent, so as to make it falsely appear that the
case in hand falls under a rule which in fact it does not fit, or especially
that it falls outside of a rule which would lead in the instant case to a
conclusion the court cannot stomach.
A further illegitimate
precedent-avoidance is "the unvarnished citation of a few alleged
authorities which have little or nothing to do with the proposition for which
they are cited." Llewellyn concludes
that despite a "pure heart" on the part of the judges, "the cost
of such procedure is excessive, it is exorbitant ... [w]hen the fair--even the
strained--meaning of an authority is distorted into nonrecognizability, the
immediate effect on the detail of doctrine in question is confusion." As for disingenuously citing authority for
untoward propositions, this is venal, as compared to other judicial sins, but
[s]uch action leaves the
particular point moderately clear: the court has wanted it badly enough to lie
to get it.... But it does rap at a thing capital: it raises doubts about either
competence or candor in judicial craftsmanship, and any such doubt leaks over
into worry over wisdom, even over uprightness of the court. Today, ... any
practice such as any of the above must be pilloried as flatly and flagrantly
c) The Importance of Honesty
Attempting to change the law or extend
precedent to cover an unimagined situation without acknowledging the change in
the name of stability, Llewellyn maintains, actually undermines stability by
encouraging courts to make dishonest or illogical citations to cases as if
those cases cited actually addressed the issue before the court. This is
particularly dangerous because(p.968)
[t]he pseudo gain in
stability of the precedent-regime which, for the moment at least, and perhaps
forever, lies in covering up the particular change is ... no real gain; and, if
it were, it would rest still on a mistaken choice of policy. For the gain
sought is a gain in confidence in institutions and in officers; whereas
these vagaries of practice ... infect and rot away that very confidence; and
whereas we draw from the long years of the Grand Style in our common law
tradition abundant evidence that change in case law, when based on reason and
accompanied by explicit reason given, not only does not sap but strengthens
confidence in the appellate courts and in their work.
These illegitimate practices Llewellyn
indicts as "evil," and as
true and low abuses of power
entrusted for other ends: their cost is too high, their policy is unsound, they
are consonant neither with candor nor with courage, they are as unnecessary as
they are misleading, they tend to trip up even their practitioners, and they
inexcusably undercut clean interaction and understanding between bar and
Legitimacy is the core of Llewellyn's
concern. As a good Realist, Llewellyn realized that all law, and not just
common law, is to a substantial extent judge-made. When a judge or a group of
judges renders a decision memorialized by a published opinion, the law bears
the indelible print of the court's consideration. The court must then rely on
the other branches to see that its rulings are given life. It is incumbent upon
judges, particularly when faced with a constitutional question, to render a
reasoned opinion which analyzes precedent fairly and applies or interprets the
law before it without preconceived notions of how the case ought to come out.
Moreover, as new facts and information come to life which elucidate earlier
decisions and perhaps highlight mistakes, courts should not invoke stare
decisis out of discomfiture with possible ramifications of their decisions,
if by not rendering that decision they run the risk of calling into question
the intelligence, honesty and integrity of the bench.
While Llewellyn admits that "[t]here are no
panaceas," he does suggest how courts
should decide appellate cases. He personally favors what he terms the
"Grand Style" of reason in which the judge, through the application
of reason and sense, and by developing an eye for the
"type-situation" and the (p.969)"type-problem," formulates rules of law. These rules of law are to be distinguished
from "mere just or right decisions, much less ... decisions
merely according to any personal equities in individual cases." Llewellyn concludes that:
The whole setup leads above
all--a recognition of imperfection in language and in officer--to on-going
and unceasing judicial review of prior judicial decision on the side of
rule, too, and technique. That, plus freedom and duty to do justice
with the rules but within both them and their whole temper,
that is the freedom, the leeway for own-contribution, the scope for the person,
which the system offers.
2. Legitimacy: The Price of
As Alexander Hamilton noted in The
Federalist, the courts have only "Judgment," as opposed to
"Force" or "Will."
Hamilton also noted that "the courts must declare the sense of the law;
and if they should exercise WILL instead of JUDGMENT, the correspondence would
equally be the substitution of their pleasure for that of the legislative
body." Thus, were the court to exceed
its legitimate role of declaring "the sense of the law," the
judiciary would lose legitimacy. The desire for the courts to be seen as
rendering judgments untainted by partisan concerns or by public pressure was
one reason that the Framers' sought to protect federal judges from the
vicissitudes of political majorities by providing them with life tenure during
good behavior. Judges ought to be able to
render legitimate, as opposed to politically expedient, judgments while
protected from the "occasional ill humors in the society." This
independence was hoped to produce firmness of judicial character. Of this
Hamilton writes, "[c]onsiderate men of every description ought to prize
whatever will tend to beget or fortify that temper in the courts; as no man can
be sure that he may not be tomorrow the victim of a spirit of injustice, by
which he may be a gainer today."(p.970)
While scholars have articulated theories supporting the
exercise of judicial powers, particularly that of judicial review, the judges have imposed restraints on
themselves in an effort to demonstrate to others that they will not abuse their
unique position in our constitutional democracy. Many courts have struggled with the legitimacy of
judicial review in the wake of the New Deal, which authorized an unprecedented
expansion of federal power, and the Warren Court, which just as radically
altered the relationship between government and its citizens. Lower federal
courts were often on the front lines, charged with implementing decisions that,
whatever their social utility, were neither "based on reason" nor
"accompanied by explicit reason given." Cynics began to appear correct: the Constitution
is what the judges say it is--and nothing more.
3. The Courts and the Second Amendment: An
Such cynicism can wear on the body
politic. Once the legitimacy of those charged with making sense of the law is
questioned when they are seen exercising only Will, and as more people believe
that the supposed foundation of our polity is merely a rhetorical exercise, it
is only a matter of time before the institutions established by the document
are ridiculed. One sees this today: doubts
about government legitimacy may be one of the reasons for the proliferation of
private "militias" around the country. I am convinced, particularly
after reading lower court decisions, that their hostility is given further
impetus by the casual manner with which Second Amendment claims are addressed
by the courts. Beginning with Miller, decided in 1939, and continuing on
through the Ninth Circuit's recent decision in Hickman v.
(p.971)Block, there has been a collective judicial assumption made
about the Second Amendment that the Framers' could not have
really meant that individuals should have a judicially-enforceable
right to keep and bear arms.
The most common approach in disposing of Second Amendment
claims in the lower courts has been to apply what the courts have decided is
the Miller "test." Of course, the courts are not in agreement
as to what the Miller test is. Reading the cases, one gets the feeling
that the lower courts simply invent new obstacles as soon as the old ones are
surmounted by sharp litigants with carefully crafted claims. Although the
formulations tend to overlap as courts freely borrow from one another's
opinions, there are basically three interpretations of Miller.
The first concludes that Miller directs courts to grant
Second Amendment protection only where there is some demonstrable relationship
between the weapon that is restricted and the maintenance of a militia. As it became evident that almost any type of
weapon could be effectively used in combat, the courts' focus shifted to the
state of mind of the possessor, i.e., did the person using or possessing
the weapon have first and foremost in her mind the intent to insure the
maintenance and efficacy of a militia. Finally, if a plaintiff can overcome the
tests in the first two formulations of the test, the court might play its trump
card: no individual can make such a colorable Second Amendment claim because
the Second Amendment protects only a collective right of undifferentiated state
citizens to form militias and to employ them to oppose federal tyranny. A
variation on this theme reads the Second Amendment as protecting only the
states' right to maintain militias free from federal control. Over the years, the courts (p.972)have moved so far away from what Miller
actually says that their citations of the case cease to have any meaning. The
courts seem guilty of using the illegitimate precedent-avoidance techniques
Karl Llewellyn described as "manhandling facts" and the
"unvarnished citation of ... alleged authorities" to avoid outcomes
"the court cannot stomach."
Thus, the history of Second Amendment jurisprudence is the
history of the federal courts constructing arguments to explain away or at
least limit the language of the Second Amendment. In order to preserve the
stability of that "precedent," lower courts have resorted to many of
the judicial sins, cardinal and venal, that Karl Llewellyn documented. The short term stability of the courts'
dishonesty in the face of contrary authority will likely be outweighed by the
loss of legitimacy that courts will sustain by ignoring a right provided for in
the Bill of Rights. The Second Amendment presents an opportunity for federal
appellate courts to provide leadership in the vacuum left by the Supreme
Court's unwillingness to revisit questions left unanswered by Miller.
Supreme Court silence here is an invitation to action.
I. Miller, Cruikshank and
Presser: Points of Departure
A. The Miller Decision
United States v. Miller is the only case dealing directly with the
Second Amendment decided by the Court this century. Usually cited as proof of Supreme Court hostility to an
individual rights interpretation of the Second Amendment, the actual holding is considerably more ambiguous.(p.973)
Miller reached the Supreme Court on appeal from a Kansas
district court opinion which held that § 6 of The National Firearms Act violated the Second Amendment to the Constitution.
The defendants, Jack Miller and Frank Layton, were charged with
"unlawfully, knowingly, wilfully, and feloniously transport[ing] in
interstate commerce ... a double barrel 12-gauge Stevens shotgun having a
barrel less than 18 inches in length ... [and] not having registered said
firearm as required."
The trial court judge sustained a demurrer which alleged that
§ 6 of The National Firearms Act "offend[ed] the inhibition of the
Second Amendment to the Constitution." The Supreme Court reversed this decision and remanded the
case to the district court. At this point
it is appropriate to note that the defendants were apparently unwilling to risk
an unfavorable outcome in the Supreme Court. The defendants not only chose not
to have counsel appear at the Supreme Court to engage in oral argument, but in
fact disappeared after the district
court's decision was handed down.(p.974)
As a preliminary matter, that Miller made it to the
Supreme Court at all is due to the fact that the government appealed the
decision of the district court--meaning
the government lost at the trial court level. The existence of the district court opinion proves that
claims made by courts and critics of the Second Amendment that federal courts
have uniformly rejected challenges to federal regulation of firearms on Second
Amendment grounds are just plain false.
That the trial court's position was overturned on appeal is ultimately of
little consequence, since the statement is usually made to imply that no
right-thinking judge would ever entertain such an interpretation of the Second
What, then, did the Supreme Court hold? Justice McReynolds, for
a unanimous court, held simply that
[i]n 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.
Read narrowly, the Supreme Court's decision
was based more on an absence of evidence in the record than any searching
inquiry into the origin and development of the Second Amendment. Given the rather limited holding, it is important to note
that Solicitor General Robert Jackson argued a (p.975)"collective-rights" interpretation of the Second Amendment in the government's
Although the opinion assumes some connection between the right
to keep and bear arms and a militia, it is
clear from the opinion that the Court did not buy wholesale the government's
"collective rights" argument.
Had the Court accepted the government's interpretation of the Second Amendment,
the case would have likely been disposed of on the issue of standing. This is
because the defendants were not members of militias, and under the government's
interpretation of the Second Amendment, the Court could have found that Jack
Miller had no standing to invoke the Second Amendment in the district court. For the government, Miller was less
than a clear victory.(p.976)
More significantly, the actual holding of Miller is a far
cry from the proposition for which it is cited by many groups: that the Second
Amendment does not protect an individual, enforceable right. On the contrary,
the Court's opinion acknowledges that historical sources "show plainly
enough that the Militia comprised all males physically capable of acting in
concert for the common defense .... And further, ... these men were expected to
appear bearing arms supplied by themselves and of the kind in common use at the
time." Unfortunately, the Court fails
to explore the logical consequences of its conclusion. Thus Miller is
perhaps most notable for the questions it left unanswered. What would have
happened, for example, if Miller and Layton had retained an attorney to
represent them at oral argument and put on evidence about the militia and
weapons that militia members generally possessed? Or what if they had argued
that the introductory phrase of the Second Amendment merely expressed a
widespread sentiment against standing armies and was not meant to qualify or to
limit the "right of the people to keep and bear arms?" Given the
incomplete record before the Miller court, as well as the very narrow
holding of the case, questions regarding the meaning of the Second Amendment
and its outer limits should be regarded as far from settled. Nor should the
alleged "unanimity" of Miller's application in the lower
courts be evidence of its persuasiveness,
for, as I shall show, this "unanimity" is largely a function of the
lower courts' less-than-honest treatment of Miller's holding.(p.977)
B. Cruikshank and Presser: The
Second Amendment and the States
1. United States v. Cruikshank
Even if the Supreme Court overturned
Miller, under existing case law states would still be free to regulate,
to the extent permitted by various state constitutions, the right to keep and
bear arms. Since comprehensive, nationwide gun control legislation is regarded
as not politically feasible, many gun control advocates have concentrated their
efforts at the state and local level. In places like New York state or Morton
Grove, Illinois, gun control initiatives have been enacted. To what extent have
courts held that the Second Amendment operates as a limitation upon state
power? Unfortunately, the federal courts have employed reasoning from
antiquated Supreme Court decisions--the foundations of which have been largely
repudiated by modern Court decisions--in opinions addressing the Second
Amendment's protection against state and local government attempts at gun
control. Therefore, despite well over half a century of incorporation in which
the federal courts have held almost all provisions of the Bill of Rights
applicable to the states, the Second Amendment has not been applied to the
Conventional wisdom holds that United States v.
Cruikshank settled the question of the
Second Amendment's applicability to state governments. However, in the haste to dispose of Second Amendment
claims, the background against which the Cruikshank decision took place
is ignored. Moreover, language in the opinion, as well as a half century of
Supreme Court doctrine, calls into serious question the continuing viability of
either the holding or the reasoning. Cruikshank, decided during
Reconstruction, "was part of a larger campaign of the Court to ignore the
original purpose of the Fourteenth (p.978)Amendment--to bring about a revolution in federalism,
as well as race relations."
Cruikshank originated in Louisiana where a sixteen
count indictment was handed down against over one hundred individuals under
§ 6 of the Enforcement Act of 1870.
The indictment alleged that the defendants, inter alia, conspired to
"hinder and prevent" two African-American citizens from exercising
certain "rights and privileges."
Among the rights and privileges asserted were the "lawful right and
privilege to peaceably assemble together with each other and with other
citizens of the United States for a peaceable and lawful purpose" and the right of "bearing arms for a
First, it is important to note that the Court's holding
emphasizes that the guarantees in the Bill of Rights operate to restrain
governments as opposed to individuals. The
necessary element of state action was missing. But in dicta, the portion of the
opinion upon which modern lower courts tend to rely, the Court repeated the
then-valid doctrine that the Bill of Rights does not apply to the states.
Dismissing the First Amendment count, the Supreme Court found that despite the
passage of the Fourteenth Amendment, the First Amendment to the Constitution
"was not intended to limit the powers of the State governments in respect
to their own citizens, but to operate on the National government alone." Under the Court's construction, because the
right of the people to peaceably assemble was neither "created" by
the Constitution, (p.979)nor "was its
continuance guaranteed, except as against congressional interference," the people must look to the states for
protection of this right.
The Court relied on much the same reasoning in dismissing the
claim that the defendants conspired to hinder the complainants' right to
"[bear] arms for a lawful purpose." First noting that "bearing arms for a lawful
purpose" was "not a right granted by the Constitution," the Court held that the Second Amendment's
language "means no more than it shall not be infringed by
Congress." Concluding the short
paragraph dealing with the Second Amendment, the Court stated that internal
police powers were "not surrendered or constrained by the Constitution of
the United States."
The Supreme Court devoted exactly one paragraph in the entire
opinion to the Second Amendment issue, an issue that was arguably ill-framed in
the first place. Not only was there little analysis, but what analysis there
was with regard to the First Amendment issue is now outdated when considered in
light of the Supreme Court's incorporation decisions. Yet, lower courts continue to cite this case for the
proposition that the Second Amendment poses no obstacle to state gun control
legislation, even if it amounts to an outright ban on certain types of arms.
While lower courts have little choice but to apply Supreme Court precedent as
it exists, the Court itself should revisit this decision, applying the criteria
it has adopted for the incorporation of every other constitutional provision.(p.980)
2. Presser v. Illinois
The only other Supreme Court case that
addresses in any detail the applicability of the Second Amendment to the states
is the case of Presser v. Illinois.
In light of the development of subsequent Supreme Court doctrine, modern
reliance on the logic of Presser, like that of Cruikshank, is
anachronistic and begs for reexamination.
Presser was charged with violating an Illinois statute that
made it a crime for "any body of men" other than "the regular
organized volunteer militia of [Illinois], and the troops of the United States,
to associate themselves together as a military company, or organization, or to
drill or parade with arms" in the cities or towns of Illinois without a
license of the Governor, who had unlimited authority to revoke that license. In September of 1879, Presser and 400 fellow
members of a society calling itself Lehr und Wehr Verein, marched without gubernatorial license in
the streets of Chicago. Presser was
convicted and fined ten dollars.
Presser complained that this law of Illinois had the effect of
depriving him of his Second Amendment right to keep and bear arms. The Court answered that the right to
gather as a group and hold armed parades was not included in the right to keep
and bear arms and that "the amendment is a limitation only upon the power
of Congress and the National government, and not upon that of the
States." The Court, of course,
cited Cruikshank for support of this proposition. Curiously, the Court, in dicta, suggests that to the
extent that state citizens are also members of the national militia,
state (p.981)regulation which prohibited
"the people from keeping and bearing arms, so as to deprive the United
States of their rightful resource for maintaining the public security"
would not be sustainable, "even laying the [Second Amendment] out of
view." The Court did not explore
that point further because it felt the Illinois statute in question was a valid
exercise of the state's police power.
But the dicta of the case suggests, independent of the Second Amendment, that
the state's right to restrict the lawful bearing of arms is not absolute. As
one commentator notes,
[E]ven if the Second Amendment
was not infringed by a state requirement of a license for private armed marches
or even if it did not apply to the states, nevertheless, a right to keep and
bear arms existed for "all citizens capable of bearing arms," and
this right could not be infringed by the states.
Subsequent courts have found it
convenient, however, to ignore this loose thread left by the Presser
II. Lower Court Interpretations of
Going off the Rails
A. Casesand Tot
The first lower court cases interpreting
Miller appeared in the early 1940s, during World War II. America's
involvement in the war, as well as the whole notion of twentieth century
"total war," seems to have had an impact on the courts' decisions.
Unfortunately, the courts' interest in preserving the "stability" of
the Miller "precedent regime" by extending Miller, without acknowledging a
change in the regime, has allowed subsequent courts to evade responsibility for
their decisions by claiming fidelity to the Miller decision as
"clarified" by Cases and Tot. The result has been the
distortion of Miller into unrecognizability.
1. Cases v. United States
In 1942, a mere three years after the
Miller decision, the First Circuit decided a very interesting case that
is the origin (p.982)of much of the
subsequent confusion among the lower courts. One of the very few lower court
cases to carefully parse the language of Miller and attempt to use the
Court's logic to formulate the rule of law, Cases v. United States raises an interesting challenge to the
conventional reading of Miller. Uncomfortable with what it deemed to be
the societal implications of the Miller case, the Cases court
rejected Miller's logic, looking instead to the state of mind of the
person claiming a Second Amendment right. The Cases court required that
the person, as a prerequisite to maintaining a Second Amendment claim, have in
mind the maintenance and preservation of the militia as his or her paramount
concern. In rejecting the Miller
test, the Court stated that if it were to take Miller's reasoning to its
under the Second Amendment,
the federal government can limit the keeping and bearing of arms by a single
individual as well as by a group of individuals, but it cannot prohibit the
possession or use of any weapon which has any reasonable relationship to the
preservation or efficiency of a well regulated militia. However,
we do not feel that the Supreme Court in this case was attempting to
formulate a general rule applicable to all cases.
While it may be correct that the Supreme
Court did not intend its decision to be given a broad reading, the First
Circuit offered no basis for its ultimate conclusion about Miller.
The most interesting portion of the Cases opinion is
what the First Circuit concluded to be the consequences of a logical extension
of the Miller rule, if it were intended to be applied broadly:
At any rate the rule of the
Miller case, if intended to be comprehensive and complete would seem to be
already outdated, in spite of the fact that it was formulated only three and a
half years ago, because of the well known fact that in the so called
"Commando Units" some sort of military use seems to have been found
for almost any modern lethal weapon.
The court concluded that given the state
of modern warfare, "if the rule of the Miller case is general and
complete, the (p.983)result would follow
that ... the federal government would be empowered only to regulate the
possession or use of weapons such as a flintlock musket ...." The First Circuit worried that following
the Miller rule would tend to make the limitation of the Second
Amendment absolute, and prevent the
government from prohibiting "the possession or use by private persons not
present or prospective members of any military unit, of distinctly military
arms, such as machine guns, trench mortars, anti-tank, or anti-aircraft
Thus abandoning an attempt "to formulate any general test
by which to determine the limits imposed by the Second Amendment," the court addressed the facts in the
record. The court found that the defendant in question possessed a gun and
ammunition, "transporting and using the firearm and ammunition purely and
simply on a frolic of his own and without any thought or intention of
contributing to the efficiency of the well regulated militia that the Second
Amendment was designed to foster as necessary to the security of a free
state." The court found that there
was no conflict between the federal statute and the Second Amendment and upheld
While the Cases opinion does little to further any
attempt by federal courts to give effect to the Second Amendment, it is notable
for its expansion of the Supreme Court's language in Miller. Far from
reading it as rendering no protection to an individual's right to keep and bear
arms, the Cases court assumed, by carrying Justice McReynold's reasoning
to its logical conclusion, that the Miller opinion, if intended as a
general rule, afforded entirely too much protection to a wide range of
potentially destructive devices that individuals might seek to possess. The Second Circuit thus rejected the
(p.984)Miller decision out of hand
and proceeded, inexplicably, to engraft a state of mind requirement onto the
Second Amendment where one had not previously existed. As we shall see,
subsequent courts have seized upon Cases reasoning, expanding it even
further in some instances.
The Cases decision serves as a good example of a case
decided according to what Karl Llewellyn would call the judges' "sense of
the situation." The court assumed
that, as a matter of public policy, any meaningful limitation upon the
government's ability to restrict private ownership of arms is bad; and the
court decided the case accordingly, assuming that the framers of the Second
Amendment did not intend it to present an impediment to the government in this
2. United States v. Tot
United States v. Tot offered historical analyses of the Second
Amendment to support its reading of Miller, and to bolster the court's
claims about the lack of a constitutional right to keep and bear arms. While
notable for the attempt to use original source material to interpret the Second
Amendment, the Tot court either discriminated against material that did
not support its desired outcome, or simply cited sources that did not support
The defendant in Tot was convicted of violating a
federal law which prohibited the possession of a firearm capable of being
fitted with a silencer. One of the
grounds upon which the defendant attacked his conviction was the Second
Amendment. The Third Circuit embarked
upon its interpretation of the history surrounding the adoption of the
(p.985)Second Amendment and offered its
conclusions to "explain" the Supreme Court's Miller decision.
Like the Cases court, the Third Circuit thought that the Miller
decision left a good deal unanswered.
The Tot court begins its discussion of the Second
Amendment claim as follows:
It is abundantly clear both
from the discussions of this amendment contemporaneous with its proposal and
adoption and those of learned writers since that this amendment, unlike those
providing for protection of free speech and freedom of religion, was not
adopted with individual rights in mind, but as a protection for the States in
the maintenance of their militia organizations against possible encroachment by
the federal power.
The court offered little support for this
sweeping conclusion and ignored much writing to the contrary. Recounting abuses
in England under James II, the court
concluded that the colonists "wanted no repetition of that experience in
their newly formed government."
The Third Circuit thus implied that the Framers drafted the amendment as a mere
constitutional admonishment to the government not to overstep its bounds with
respect to the states or citizens, lest it become worse than what it replaced.
For, despite whatever rhetorical force the amendment may possess, the court
certainly did not consider it a right the Framers would have thought to give
individuals. The right was treated by the court as, to quote a later court,
mere "historical residue."
Once again, the court was unshakable in its belief that the Framers did not
mean what the language of the Second Amendment suggests they meant--that
individuals have a right to keep and bear arms.
The court then made a curious observation. "Weapon
bearing," it stated, "was never treated as anything like an absolute
right by the common law. It was
regulated by (p.986)statute as to time and
place as far back as the Statute of Northampton in 1328 and on many occasions since." The court continued, stating that
decisions under the State
Constitutions show the upholding of regulations prohibiting the carrying of
concealed weapons, prohibiting persons from going armed in certain public
places and other restrictions, in the nature of police restrictions, but which
do not go so far as substantially to interfere with the public interest
protected by the constitutional mandates.
Judicial refusal to recognize the right to
bear arms as an absolute right does not mean, however, that this right was not
meant to be a right possessed by individuals. Yet the Tot court asserted
with confidence that the Second Amendment "was not adopted with individual
rights in mind." Although states
regulated certain types of weapons notwithstanding their state constitutions
that protected the right to keep and bear arms, state courts were often
unsympathetic to local governments' (p.987)attempts to ban certain types of weapons outright. More importantly, federal courts'
reliance on state experiences are of little relevance because the federal
government does not possess the broad police powers that state governments
do. Thus, the Tot court's
contributions to Second Amendment jurisprudence are of questionable
Most federal court decisions that followed challenges to
post-1968 federal gun control legislation "almost invariably seek support
not in any historical document, but in similarly nonsupported previous cases,
traceable to the Cases and Tot precedents." Courts dismiss Second Amendment claims with banal
statements like the following: "[t]here can be little dispute with the
proposition that 'there is no absolute constitutional right of an individual to
possess a firearm.'" A district
court in Pennsylvania offered the similarly unhelpful observation that
"[t]he Second Amendment to the Constitution is not a bar to Congressional
regulation of use and possession of firearms." Courts and commentators who argue against an
"absolute" Second Amendment right weigh in against a straw man since
no reasonable scholar has argued that the Second Amendment right is any more
absolute than the First Amendment. Such
willingness to engage arguments that no one is making demonstrates the
reluctance of (p.988)federal courts even
to hypothecate, based on the holding in Miller, situations in which
government regulation of firearms would infringe upon the protections given by
the Second Amendment. These courts give no indication of what the law is and
provide no guidance to legislators.
Similar to the Tot court's reasoning, a South Carolina
district court judge in United States v. Jones reasoned that "[s]ince there is no absolute
constitutional right of an individual to possess a firearm ... the test of
determining the constitutionality of 18 U.S.C. § 922(h) (4) depends on finding a rational basis for
the particular classification."
Under this judge's formulation, no right that is not absolute can qualify as
"fundamental," thus triggering the heightened scrutiny of federal
courts. Under such a test, there is not a right in the Constitution that would
so qualify. It would be hard to imagine a similar statement being made in
connection with federal restrictions of freedom of speech or religion.
Other courts disingenuously cite Miller purporting to
show that, historically, "the right to keep and bear arms is not a right
given by the United States Constitution." Similar sentiment was expressed by a New Hampshire
district court that stated, "[i]t is well established that the Second
Amendment is not a grant of a right but a limitation upon the power of Congress
and the national government." Both
cases cite Miller for that proposition even though there is no language
in Miller that suggests such an interpretation was a part of the Court's
holding. Further, the courts employing
this reasoning do not explain the effect such observations have on the
interpretation of the Second Amendment, i.e., how does it
limit the power of Congress?(p.989)
B. Can the Simple Cite Be Trusted?
1. United States v. Warin
Following the lower court decisions in
Cases and Tot, there was little litigation concerning the Second
Amendment until individuals began to challenge the federal gun control
legislation of the late 1960s. Unfortunately, many of these contemporary courts
seized on Cases' bizarre state of mind requirement and Tot's
unsupported "collective theory" interpretation as a convenient way to
dispose of bothersome Second Amendment claims. Further, many courts began to
cite Miller as actually standing for the holdings in Cases and
Tot. These decisions made it possible for courts to make statements like
that of a Minnesota district court, which held, citing Miller, that
since "[t]here is no evidence ... that the defendant was possessing the
... .22 caliber semi-automatic rifle with any thought or intention of
contributing to the efficiency of the well-regulated militia," her
conviction on federal firearms charges should be upheld. While such judicial hostility to Second Amendment
claims would normally discourage all but the most desperate defendants, as the
case of United States v. Warin
demonstrates, one should never underestimate the ingenuity of the citizen
accused or his lawyer in formulating a clever argument. But again in
Warin, the courts changed the rules, while maintaining piously that
Second Amendment jurisprudence had followed studiously the language of
Francis J. Warin was convicted by an Ohio district court for
possessing an unlicensed submachine gun, in violation of federal law. Mr. Warin appealed on the grounds that he
was a member of the "sedentary militia" of Ohio and that he had been making improvements to the weapon
in question so that he might offer it "to the Government as an improvement
on the military weapons presently in use." Warin (p.990)seems
to have satisfied the rigorous test set forth in Cases and in
Hale. The Sixth Circuit disagreed and affirmed the conviction.
In affirming Warin's conviction, the Sixth Circuit articulated
a variation on the theme in Cases and held that the Miller
decision articulated no hard and fast rule. The court relied on a case it had decided just five
years before, Stevens v. United States, which held that since the Second Amendment
"applies only to the right of the State to maintain a militia and not to
the individual's right to bear arms, there can be no serious claim to any
express constitutional right to possess a firearm." Based on the Stevens decision, the court felt it
could confidently conclude that "[i]t is clear that the Second Amendment
guarantees a collective rather than an individual right." The Stevens court cited Miller for the proposition that there can be
"no serious claim to any express constitutional right of an individual to
possess a firearm" and that the Second Amendment applies only "to the
right of the State to maintain a militia.
The Sixth Circuit's Warin opinion does, however, give
one a clue as to what the court's real concern was. Needless to say, neither
stare decisis nor fidelity to the text or the intent of the Second
Amendment has much to do with its decision. Describing the First Circuit's
opinion in Cases, the court wrote the following:
The ... [First Circuit] noted
the development of new weaponry during the early years of World War II and
concluded that it was not the intention of the Supreme Court to hold that the
Second (p.991)Amendment prohibits Congress
from regulating any weapons except antiques "such as a flintlock musket or
a matchlock harquebus...." If the logical extension of the defendant's
argument for the holding of Miller was inconceivable in 1942,
it is completely irrational in this time of nuclear weapons.
Of course, the statement is a non sequitur
since no one is talking about the right to keep and bear a nuclear weapon. The
court explicitly endorses the Second Circuit's disregard of the Second
Amendment based on technological advancement. In doing so, it adopts the
Cases court's assumptions that recognition of limits in the Second
Amendment, or even an honest application of the logic of Miller, would
lead to anarchy. Arguing that the Second Amendment might be employed to
vindicate an individual's right to possess nuclear weapons represents the
steepest slippery slope argument available. It also belies a world view in which government is the
sole legitimate instrument of violence.
2. United States v. Hale
More recently, the Eighth Circuit,
describing Cases as "one of the most illuminating circuit opinions
on the subject of 'military' weapons and the Second Amendment," based its
opinion in United States v. Hale
in large part on its reading of Cases and not on Miller. Hale involved the prosecution and
conviction of an individual for possession of unregistered machine guns in
violation of federal law. The defendant
appealed his conviction, arguing that the indictment violated his Second
Amendment rights. The Defendant made
the plausible argument that, based on Miller, he had every right to
possess the machine guns because they were just the sort of weapons that would
be employed by a military unit, and thus were weapons that would contribute to
the preservation or (p.992)efficiency of
the militia. The Eight Circuit rejected
this interpretation of Miller, claiming without explanation that the
function of the Miller court's language to that effect was merely to
"recogniz[e] ... historical residue."
The court went on to cite Cases approvingly for the
[T]he claimant of Second
Amendment protection must prove that his or her possession of the
weapon was reasonably related to a well regulated militia.... Where such a
claimant presented no evidence either that he was a member of a military
organization or that his use of the weapon was "in preparation for a
military career," the Second Amendment did not protect the possession of
It would have been egregious enough had
the Eighth Circuit merely stopped at dismissing the holding of the
Miller opinion as "historical residue," but the court
compounded its error by conditioning Second Amendment rights upon a showing of
membership in or preparation for membership in a military organization! If "militia," as used in the
Second Amendment, (p.993)meant anything to
the Framers, it was intended to be the opposite of "army." It seems the court wanted the decision
"badly enough to lie to get it."
3. Quilici v. Morton Grove
The Seventh Circuit, in Quilici v.
Morton Grove, relied heavily on
Presser and ignored Cruikshank in its decision upholding the
constitutionality of a city's ban on the possession of handguns within the city
limits. Victor Quilici and others initially brought suit against the city in
state court. After Morton Grove removed
the action to federal district court, that court granted Morton Grove's motion
for summary judgment. In granting the
motion for summary judgment, the district court, relying on Presser,
stated that the Second Amendment had not been applied to the states through the
Fourteenth Amendment, and thus was ineffective as a restraint upon the
The Seventh Circuit agreed with the district court. In a 2-1
decision, the court held that the Second Amendment did not apply to the
states. The court ignored the fact that
the Presser decision did not address the individual right to
keep and bear arms and rejected as "dicta quoted out of context" the
language from Presser in which the Supreme Court stated that,
independent of the Second Amendment protections, states could not so impair
their citizens' right to bear arms in a manner which deprived the United States
of a means for its defense. Similarly,
the court rejected the related arguments that the entire Bill of Rights has
been incorporated and that
Presser is no longer good law.
Presser was not decided in a vacuum. The Presser
Court specifically relied upon Cruikshank in support of its decision. As previously mentioned, the
Cruikshank Court gave only cursory treatment to the Second Amendment
claim, devoting much of its decision to refuting the notion that the First
Amendment provided any protection to individuals from other individuals not
acting under government authority, and, in any event, holding that the Bill of
Rights did not operate against the states. The 1912 Supreme Court decision of Gitlow v. New
York which applied the First
Amendment, by assumption, to the states seems to have overruled Cruikshank
sub silento or at least would seem to approve the reexamination of its
theoretical underpinnings. While the Seventh Circuit is correct that the
Supreme Court has never held that the entire Bill of Rights is incorporated
through the Due Process Clause of the Fourteenth Amendment, it is curious that it declines
(p.995)to articulate the test by which the
Supreme Court purports to evaluate whether a particular provision is deserving
of incorporation and to apply that test to the Second Amendment. As the dissent points out, there is an
argument that "nothing could be more fundamental to the 'concept of
ordered liberty' than the basic right of an individual, within the confines of
the criminal law, to protect his home and family from unlawful and dangerous
Unfortunately, the Quilici court also took the
opportunity to parrot the predominant judicial thinking regarding the meaning
of the Second Amendment and contributed to a wider misunderstanding of
Miller. Predictably, the court
found that "according to its plain meaning, ... the right to bear arms is
inextricably connected to the preservation of a militia." Further, the court cited Miller for the
proposition that "the right to keep and bear arms extends only to those
arms which are necessary to maintain a well regulated militia." The court expressed incredulity at the
appellants' argument that "[t]he fact that the right to keep and bear arms
is joined with language expressing one of its purposes in no way permits a
construction which limits or confines the exercise of that right." The majority remarked blithely that
appellants "offer no explanation for how they have arrived at this
conclusion." By way of response,
one might paraphrase William Van Alstyne who writes of the Second Amendment
(p.996)that, whatever words serve as a
prelude, the right to keep and bear arms belongs to the people.
4. Love, Hickman and the Rise
of the "Collective Rights" Theory of Miller
The most popular theory of the Second
Amendment is now the so-called "collective right" theory advanced by
the government but implicitly rejected by the Supreme Court in Miller,
then resurrected by the Third Circuit Court of Appeals in United States v.
Tot. Advocated by scholars like Dennis Henigan and Andrew Herz, the
collective right argument proposes that the Second Amendment was primarily
intended to prevent federal interference with the militias of the individual
states. Since the National Guard, they argue, has replaced the militias of the
individual states, the Second Amendment--like the Third Amendment--is little more than an anachronistic
Recently, the Fourth Circuit joined the fray in Love v.
Pepersack. The Fourth Circuit
concluded that "lower federal courts have uniformly held that the Second
Amendment preserves a collective, rather than individual right" and that it is the "collective right
of keeping and bearing arms which must bear a 'reasonable relationship to the
preservation or efficiency of a well-regulated militia.'" Just as courts have not been impressed by such
arguments in the past, the present court concluded that the defendant in the
case "has likewise not identified how her possession of a handgun will
preserve or insure the effectiveness of the militia."(p.997)
Even more recently, the Ninth Circuit has embraced the
"collective rights" theory of the Second Amendment. In Hickman v.
Block the Ninth Circuit rejected
the plaintiff's Second Amendment challenge to state and municipal officials in
California who rejected his application for a concealed carry permit. The Ninth Circuit rejected the challenge,
not on the ground that the Second Amendment did not apply to the states, but on the grounds that the plaintiff lacked standing
to bring the claim at all. The court held as follows: "We follow our
sister circuits in holding that the Second Amendment is a right held by the
states, and does not protect the possession of a weapon by a private citizen.
We conclude that Hickman can show no legal injury, and therefore lacks standing
to bring this action."
In its analysis, the Ninth Circuit ignored whatever historical
materials were provided to it, as well as the incredible amount of scholarly
information about the Second Amendment that is now available. Further, the
opinion makes several errors that cause the reader to question whether the
author of the opinion actually read the cases she cited. First, the court
repeats the erroneous statement that "no individual has ever succeeded in
demonstrating such injury in federal court." I have shown this to be completely false. Further, the court maintains that the
decision in Miller "upheld a conviction under the National Firearms
Act." This too, is incorrect. The
Supreme Court in Miller merely vacated the lower court decision that
quashed the indictment of the defendants. Further, the fact there was no appearance at the
Supreme Court for Layton, and that it was the government which pursued
the appeal from the lower court renders the Ninth Circuit's interpretation of
the Miller decision erroneous as well: "The Court rejected the
appellant's hypothesis that the Second Amendment protected his possession of [a
sawed-off shotgun] .... [T]he Court found that the right to keep and
(p.998)bear arms is meant solely to
protect the right of the states to keep and maintain armed militia." The Miller Court merely refused to
take judicial notice of the fact that Miller's sawed-off shotgun was the type
of weapon which would be useful to a militia. Further, as I pointed out
earlier, the government strenuously argued in its brief for the position that
the Ninth Circuit adopts, and which the Supreme Court did not: that the Second
Amendment protects only a state's right to an armed militia. Finally, the Ninth Circuit cites the usual suspects for
support of its position and concludes that "[b]ecause the Second Amendment
guarantees the right of the states to maintain armed militia, the states alone
stand in the position to show legal injury when this right is
The Ninth Circuit had an opportunity to make use of the works
of many talented legal scholars to correct the judicial neglect of the Second
Amendment. Sadly, with its inartful and erroneous opinion, it chose to continue
the regretful tradition of judicial indifference to those making Second
Amendment claims. The Hickman decision adds another layer of judicial
gloss on Miller, as inaccurate as it is thick, making it all the more
difficult for future courts to strip away.
Reading lower federal court opinions where a
Second Amendment challenge is raised, one can hear the exasperated sighs
emanating from the pages. Mr. Kallgren of the ABA expresses similar disbelief
at the prospect that any right thinking lawyer who paid attention during
Constitutional Law could hold the belief that the Second Amendment means
anything. "The Supreme Court has settled this!" they cry. Courts invoke Miller with
vehemence and regularity in dismissing, out of hand, challenges to the various
pieces of gun control legislation passed by Congress in the last fifty years.(p.999)
In all fairness to Mr. Kallgren and the ABA, if one were to read
only the lower court opinions since 1939, the year Miller was decided,
one would come away fairly convinced that the Supreme Court had in fact settled
all past and future issues with respect to the Second Amendment. A close
examination of the lower courts' opinions and comparison with the actual
holding of Miller, however, reveals that the lower courts have
demonstrated a remarkable obtuseness, sometimes lurching into intellectual
dishonesty. As I have shown, the courts have indulged in constitutional
gymnastics in an effort to avoid construing the Second Amendment to contain
anything resembling a right under which an individual might make a colorable
claim. On this point alone, courts might be said to be construing the wording
of a provision of the Constitution to be meaningless--a result that should be
While difficult to classify because the reasoning of the opinions
overlaps to some degree, it is possible to ascertain different approaches taken
by federal courts over the years in an effort to render the Second Amendment a
constitutional eunuch. It is fair to say that the "interpretations"
of the Miller decision tend to evolve in response to arguments following
the logic of the Miller decision to a reasonable conclusion. While few
lower courts choose to do more than issue conclusory statements regarding the
Second Amendment and the right to keep and bear arms (always slavishly citing
Miller as if the Supreme Court's decision supported their statements),
their steadfast reluctance to recognize an enforceable right in the Second
Amendment often has little to do with the Miller decision and more with
the courts' discomfit with the right to keep and bear arms as a matter of
Surveying the state of Second Amendment jurisprudence, another one
of Karl Llewellyn's judicial decision-making models comes to mind. The phrase
Llewellyn uses is "sense of the situation." This is no more than how the court "sees" the
case and how, through the application of "fireside equities," judges
think a case should be decided. Llewellyn writes that the "felt sense of a
situation" can "strongly ... affect the court's choice of techniques
for reading or interpreting and then applying the authorities." The greater the felt need, as perceived
by the courts, the more leeway they believe they have to "reshap[e] an
authority or the authorities."
Sometimes judges get so caught up in the personalities involved in a particular
case such that:
[I]t is hard to disentangle
general sense from personalities and from "fireside" equities. Such
response is dangerous ... because it leads readily to finding an out for
this case only--and that leads (p.1001)to a complicating multiplicity of refinement and
distinction, as also to repeated resort to analogies unthought through and
unfortunate of extension.
It is, instead, the business of the courts to
use the precedents constantly to make the law always a little better,
to correct old mistakes, to recorrect mistaken or ill-advised attempts at
correction--but always within limits severely set not only by the precedents,
but equally by the traditions of right conduct in judicial office.
Federal judges who address constitutional
questions are not common law judges, free to change the law in light of
changing "sense" and public policy. The Constitution as text and
tradition commands their fidelity and restrains their decisions. Presumably all
but the most unrepentant activist would acknowledge that when adjudicating
constitutional issues, justices and judges are not free to write on a blank
slate. However, many of the courts interpreting Miller in the nuclear
age have concluded that the stakes are too high to trust anyone but the State
with war-making capabilities. They then
look to history to support them in their assumptions that the Founders would
not have intended that either or interpret the amendment into meaninglessness.
This is a dangerous tactic, for as Joseph Story wrote,
If, in any case, the plain meaning
of a provision, not contradicted by any other provision in the same instrument,
is to be disregarded, because we believe the framers of that instrument could
not have intended what they say, it must be one, where the absurdity and
injustice of applying the provision to the case would be so monstrous, that all
mankind would, without hesitation, unite in rejecting the application.
According to a poll taken in the spring of
1995, seventy-five percent of Americans believe citizens possess a
constitutional right to keep and bear arms.(p.1002)
There are two lessons that might be drawn from a survey of
post-Miller Second Amendment decisions: one about federal judges; the
other, about their audience--the public at large. Federal judges, like
Llewellyn's common law judges, are driven by a sense of situation, Constitution
or no Constitution. Precedent is no obstacle to determined federal courts. This is nowhere better illustrated than
in the Second Amendment cases. One explanation of their reluctance to treat the
subject with honesty and candor may be the unappetizing prospect of having to
outline the boundaries of the right, once admitted. Unfortunately, it appears
that the judges are more uncomfortable with the right qua right. Reading
the opinions one senses not only the exasperation rising from the pages of the
judges' opinions, but also the nervousness, bordering on hysteria, which
results from someone audaciously questioning collective judicial assumptions
about the Second Amendment. Judges'
unwillingness to reexamine the judicial conventional wisdom in light of recent
scholarship and repeated use of slippery slope arguments are symptoms of an
underlying distrust of a provision of the Constitution that they think is just
plain bad public policy.
Whatever doubts the judiciary harbors about the Second Amendment,
the public seems not to share them. The seventy-five percent of Americans who
believe the Second Amendment means what it says hardly constitute the unanimous
rejection of "all mankind" Joseph Story suggests would be necessary
to render a provision of the Constitution meaningless. The gun control lobby has been able to employ the
professional bar, many federal judges,
law professors and even a former Chief
Justice of the United States to
publicize its view that the Second Amendment is antiquated and that the
(p.1003)price of its viability is
outweighed by its social cost. They have been most successful preaching to the
converted. With the wider audience of
the American people, however, the elites have been wholly unpersuasive.
It is perhaps for that reason that Andrew Herz exhorts his
like-minded colleagues to dust off "their hard drives" and
"weigh in on gun control," but not in "the insular literary
universe of the law review." He
tells his colleagues to eschew the "law review culture," in favor of
fulfilling their "social responsibility to venture forth to frame popular
arguments." Such popular arguments
are happily free from the rigors of scholarship and the examination of one's
peers--perfect for the sort of "talking head constitutionalism" Herz advocates, whereby one's reading of
the Constitution supports one's preconceived notions of good and bad policy.
Lawyers, judges, courts and the government in general have come
under increasing suspicion from those citizens who believe many of these same
elites manipulate the system at the expense of the "common man." It
is this sort of distrust that breeds the resentment that manifests itself in
what historian Gordon Wood termed "out-of-doors" political activity--private militias and the so-called "common law courts" are two
contemporary examples. By staking their prestige and power of judgment on a
position that citizens do not accept and new scholarship shows to be untenable,
federal courts that continue to nonchalantly dismiss the Second Amendment,
Miller as their authority, do so at the risk of their legitimacy.
Miller left many questions unanswered and the assumptions upon which it
was decided bear reevaluation.
The Second Amendment offers an opportunity for federal courts.
The question now is whether a federal court will seize the opportunity to
provide leadership and judicially reinvigorate a constitutional right that has
too long suffered from judicial sclerosis, or will the courts continue to
misconstrue Miller, the result being further failure and confusion? To judges who may be faced with a Second
Amendment case, scholars who wish to engage the subject, or even laypersons who
want to figure it out for themselves, I conclude with some unintentionally apt
advice (and an admonition) from Karl Llewellyn:
First: The necessity and
duty of constant creative choice demands open accounting to the authorities, to
the situation, and to reason; with an eye always on the basic need for wiser
and for clearer guidance for tomorrow.
Second: A conscious recognition of
the foregoing and a conscious effort to mobilize the best tested resources can
very materially step up marksmanship and reduce off-target shots. Insight and
inspiration flourish best in the black earth of schooled craftsmanship. The
great stroke, the fortunate stroke, that can clarify a whole area, is most
likely when the years of neat smaller jobs have gone before.
Third: There are no panaceas.
[*] Associate, Baker, Donelson, Bearman &
Caldwell. B.A., The University of the South, 1992; J.D., The University of
Tennessee, 1995. As always, Professor Glenn Harlan Reynolds, my friend and
teacher provided much needed advice and comment. Similarly, I wish to thank
both my wife, Alli Denning, and Brooks R. Smith for editing and advice. Special
thanks go to Don B. Kates, for his criticisms and his ideas, and to Dave Kopel
for advice both structural and substantive. Of course, any errors that appear
herein are mine alone.
[**] Randy E. Barnett, Foreword:
Guns, Militias and Oklahoma City, 62 Tenn. L.
Rev. 443, 458 (1995).
 Andrew Herz, Gun
Crazy: Constitutional False Consciousness and Dereliction of Dialogic
Responsibility, 75 B.U. L. Rev. 57 (1995).
 "A well regulated Militia,
being necessary for the maintenance of a free State, the right of the people to
keep and bear arms shall not be infringed." U.S. Const. amend. II.
 See, e.g.,
Joyce Lee Malcom, To Keep and Bear Arms: The Origins
of an Anglo-American Right (1994); Symposium, The Second
Amendment, 62 Tenn. L. Rev. 443 (1995);
William Van Alstyne, The Second Amendment and the Personal Right to
Arms, 43 Duke L.J. 1236 (1994); Robert Cottrol & Raymond
Diamond, The Second Amendment: Toward an Afro-Americanist
Reconsideration, 80 Geo. L.J.
309 (1991); Brannon P. Denning, Palladium of Liberty?: Causes and Consequences of the
Federalization of State Militias in the Twentieth Century,
Okla. City U. L. Rev. (forthcoming 1996);
Dennis A. Henigan, Arms, Anarchy, and the Second Amendment, 26
Val. U. L. Rev.
(1991); Don B. Kates, Jr., Handgun Prohibition and the Original
Meaning of the Second Amendment, 82 Mich. L. Rev.
204 (1983); Sanford Levinson, The
Embarrassing Second Amendment, 99 Yale L.J.
637 (1989); Glenn Harlan Reynolds, The
Right to Keep and Bear Arms Under the Tennessee Constitution: A Case Study in
Civic Republican Thought, 61 Tenn. L. Rev.
647 (1994); Glenn Harlan Reynolds &
Don B. Kates, The Second Amendment and States' Rights: A Thought
Experiment, 36 Wm. & Mary L. Rev.
1736 (1995); David C. Williams, Civic
Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101
Yale L.J. 551
 Herz, supra note
1, at 61.
 Id. at 136.
 See supra
note 3 and articles cited therein.
 For example, in light of
historical evidence, it seems that the assertions made on the part of many who
deny that the Second Amendment means much that the National Guard is the
"militia" of which the Second Amendment speaks is simply wrong.
See infra note 174 and accompanying
 For an excellent overview of
issues surrounding the Second Amendment, see Glenn H. Reynolds, A
Critical Guide to the Second Amendment, 62 Tenn. L.
Rev. 461 (1995).
 See, e.g.,
Herz, supra note 1, at 68 ("An
extraordinarily consistent body of case law has held that a variety of
restrictions on private firearms ownership, use, and sales do not violate the
Second Amendment, because such restrictions have no effect on the maintenance
of a well-regulated militia--the National Guard."). Herz, like many other
critics of the new Second Amendment scholarship, assumes that the National
Guard was the kind of militia the Framers had in mind. But see
infra note 174 and accompanying
 307 U.S.
 "It requires an
advanced case of Supreme Court-only tunnel vision to ignore more than five
decades of consistent interpretation from the federal courts." Herz,
supra note 1, at 143. Of course, that assumes
the intervening five decades of law have been correct.
 See Karl Llewellyn, The Common Law Tradition: Deciding Appeals
 See Hertz,
supra note 1, at 77.
 That this prevailing lower
court orthodoxy is being challenged by reputable scholars who are all arriving
at the conclusion that the Second Amendment means something may account for the
hysterical tone of Herz's article. It would be hard to imagine Professor Herz
making such an impassioned defense of stare decisis in the context of
the First or Fourteenth Amendments. Id. at 77-82 (arguing
that the Supreme Court should not even deign to hear another Second Amendment
case because the amendment itself is "obsolete").
 ABA Task Force on Gun
Violence, Report to the House of Delegates (1994) (copy on file
 Id. As I shall show,
this statement is wrong. See infra note 73-75 and accompanying text.
Policies Associated with the Second Amendment: Hearings Before the Subcomm. on
Crime of the House of Representatives, 103d Cong., 1st Sess., at 1
(1993) (statement of Edward E. Kallgren) [hereinafter Kallgren
 Id. at
 Id. To be sure, much
of the literature and case law arguing that the Second Amendment protects no
individual right leans heavily on the introductory clause of the Second
Amendment which speaks of a "well regulated Militia" to support the
conclusion that the Framers intended only to protect the right of states to
have a militia free from federal abrogation. See, e.g.,
Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the
Twentieth Century: Have You Seen Your Militia Lately?, 15
U. Dayton L. Rev.
(1989) (arguing that the present day National Guard is the modern
equivalent of the 18th century state militia, thus rendering the Second
Amendment anachronistic and its protections unnecessary).
Statement, supra note 18, at 3.
 Id. at
 Id. at
 Id. at
 Llewellyn, supra note 12, at
 Id. at
 "The danger today is
that the middle and younger generations of the bar may have already lost all
confidence in the steadiness of both the courts in their work and in the law in
its. That is worse." Id. at 15.
 Id. at
 Id. at
 Id. at
 Id. at
 Id. (emphasis in
 Id. at
 Id. at
 The Federalist No. 78 (Alexander Hamilton).
 U.S. Const. art. III.
 See, e.g.,
Alexander Bikel, The Least Dangerous Branch: The
Supreme Court at the Bar of Politics (1986); John Hart Ely, Democracy and Distrust: A Theory of Judicial
Review (1980); Learned Hand, The Bill of
 See, e.g.,
Ashwander v. T.V.A, 297 U.S. 288, 341-356 (1936)
(Brandeis, J., concurring). Alex Bickel called these the Court's "passive
virtues." See Bickel, supra
note 47, at 111.
supra note 38 and accompanying
 It is no surprise that in
the wake of the Warren Court decisions of the 1950s and 1960s, which were seen
by many as purely political and having no foundation in the text of the
Constitution, there would be somewhat of a scholarly backlash against the Court
as an institution. See, e.g., Raoul
Berger, Government by Judiciary (1977); Robert H. Bork, The Tempting of America (1990).
 81 F.3d
98 (9th Cir. 1996).
 This is a remnant of a time
when courts were better able to clearly distinguish between
"military" weapons that a militia might use, like a rifle, and
nonmilitary weapons, like an easily concealable derringer, which some state
courts that decided these issues found could be regulated. For a discussion of
the difference, see Amyette v. State, 21 Tenn.
159 (1840) (holding that
the legislature has a right to prohibit the wearing of those weapons that are
either unfit for "civilized warfare" or incapable of contributing to
the common defense). But see Cases v. U.S., 131 F.2d
922 (1st Cir. 1942)
(stating that the advent of modern warfare has rendered useless any distinction
between "military" and "nonmilitary" weapons).
 [ed. footnote missing from
supra notes 34-36 and accompanying
supra note 37 and accompanying
 307 U.S.
 The only other Supreme
Court cases that directly address Second Amendment claims are Cruikshank v. U.S., 92 U.S. 542 (1875) and Presser v. Illinois, 116 U.S. 252 (1886). These decisions are
also used by courts as proof of the Supreme Court's nonrecognition of the right
to keep and bear arms.
 See, e.g.,
Herz, supra note 1, at 69 ("The
Miller holding most plausibly means only that it is a necessary
condition that a firearm be useful to the militia and an individual's service
therein, not that military utility is a sufficient condition to grant
constitutional protection. The individual using the firearm still must be doing
so in the context of service in a government-organized (not independent)
militia.") (footnote omitted). As I will point out, these interpretations
find little support in the text of the Miller opinion, often relying on
various interpretations by the lower federal courts.
Interestingly enough, and often overlooked or dismissed by lower
courts and Second Amendment critics, there are a number of Supreme Court cases
that specifically mention the Second Amendment as one of the rights individuals
possess. See United States v. Verdugo-Urquidez, 494 U.S.
265 (1990) (suggesting that
the use of the phrase "the right of the people" in the Bill of
Rights, specifically in the First, Fourth and Second Amendments should be
construed consistently); Poe v. Ullman, 367 U.S. 497, 542-43
(1961) (Harlan, J. dissenting) (stating that the right to keep and bear
arms is part and parcel of the "full scope of the liberty" provided
to the individual by the constitution); Dred Scott v. Sanford,
60 U.S. (19 How.) 393, 417 (1850) (Chief Justice Taney writing that to
admit African-Americans as citizens of the United States would mean that they
too would enjoy the individual right to keep and bear arms). All these
citations to the Second Amendment are however, dicta, and incidental to the
Court's discussion. However, the repeated references to the Second Amendment as
a "right of the people" that accompany these Supreme Court decisions,
indicate that, given the contemporaneous nature of the first ten amendments,
the language used therein should be interpreted consistently. See
Patton v. United States, 281 U.S. 276, 298 (1930)
("The first ten amendments ... were substantially contemporaneous and
should be construed in pari materia.").
 48 Stat.
1238 (1934). The Act was passed in response to public outrage over the
activities of organized crime. The act forbade the transportation of certain
firearms in interstate commerce as well as imposed taxes on firearms
transported in interstate commerce. Penalties for violation of the act included
fines and imprisonment.
 "A well regulated
Militia, being necessary for the security of a free State, the right of the
people to keep and bear arms shall not be infringed." U.S. Const. amend. II.
 Miller, 307 U.S. at
 Actually, it is more fair
to say they went along their way. The indictment was, after all, quashed, and
the defendants were legally free to go.
 See William F.
Buckley, Jr., Ban the Guns?, The Nat'l Rev.,
April 21, 1989, at 54. "Second Amendment zealots pointed out that
rather than fight the case, the defendants ... disappeared, and the result of
this was that their case was half-heartedly argued." Id. at
55. Actually, according to the opinion, there was no appearance made on
behalf of the appellees, so their position, whatever it may have been, was not
argued at all. Miller, 307 U.S. at
 Miller, 307 U.S. at 174.
 See United States v. Miller, 26 F. Supp. 1002, 1003 (W.D. Ark.
1939). The lower court opinion sustained the demurrer filed by the
defendants with the following words: "The court is of the opinion that
this section is invalid in that it violates the Second Amendment to the
Constitution of the United States ...." Id.
supra note 18 and accompanying
 Miller, 307 U.S. at
 Justice McReynolds did
refer to various state and federal statutes, as well as treatises like
Blackstone's Commentaries and state case law, but did so without much
comment. See Miller, 307 U.S. at
 The collective rights view
of the Second Amendment denies that an individual can claim an enforceable
right to keep and bear arms. The classic collective rights view of the Second
Amendment regards membership in a "well regulated Militia," as a
condition precedent to "the right of the People to keep and bear
 See Brief for Appellant at 4-5, U.S. v. Miller, 307 U.S.
174 (1939) ("Indeed,
the very language of the Second Amendment discloses that this right has
reference only to the keeping and bearing of arms by the people as members of
the state militia or other similar military organization provided for by
 Most of the historical
sources cited in dicta by Justice McReynolds mention the militia's universality
of membership in the colonies. See Miller, 307
U.S. at 179-182. This
point is significant because it belies a claim made by critics of the Second
Amendment that "the Second Amendment was not designed to ensure that every
citizen would have weapons" but rather it was drafted "to assure the
states and citizens that they could maintain effective militias."
See Ehrman & Henigan, supra note 22, at
 See Appellant's Brief, supra note 73, at
12 ("[The right to keep and bear arms], however, it is clear, gave
sanction only to the arming of the people as a body to defend their rights
against tyrannical and unprincipled rulers. It did not permit the keeping of
arms for purposes of private defense."). See also id. at 15 ("Indeed, the very declaration that 'a
well-regulated militia, being necessary to the security of a free State,'
indicates that the right to keep and bear arms is not one which may be utilized
for private purposes but only one which exists where the arms are borne in the
militia or some other military organization provided for by law and intended
for the protection of the state.").
In fact only three and a half pages of the government's brief
were devoted to the argument that even if the Second Amendment protected the
individual right to bear arms, the only arms it protected were those that were
suitable to military purposes, as opposed to those weapons that
"constitute the arsenal of the 'public enemy' and the 'gangster'"
that the National Firearms Act was aimed at prohibiting. See
id. at 18, 20. Even this argument met with mixed
success, as the Supreme Court stated that it would not take judicial notice
that the weapons at issue were the type suitable for use by a militia;
it did not accept the government's argument that these weapons served no
military purpose at face value. See Miller, 307
U.S. at 178.
 Cf. Tennessee Elec. Power Co. v. TVA, 306 U.S. 118 (1939) (holding
that an electric company cannot challenge TVA because it has no "legal
right" to be free from competition); Alabama Power Co. v.
Ickes, 302 U.S. 464 (1938).
 Even commentators like Herz
admit that the Court's holding was "less than crystal clear."
See Herz, supra note 1, at 68.
 Miller, 307 U.S. at
 "The lower federal
courts have shown remarkable unanimity in applying the Second Amendment. Never
in history has a federal court invalidated a law regulating the private
ownership of firearms on Second Amendment grounds." Richard H. Kuh,
The Firearm Explosion: The Bar Has Not Been Silent, N.Y.L.J., January 20, 1994, at 2 (quoting former
Solicitor General Erwin M. Griswold).
Of course, once again, because of the district court's opinion in
Miller, the inaccuracy of this statement cannot be overstated. Mr. Kuh's
statement is just plain wrong. See supra note
70 and accompanying text.
Certainly the only reason for the "unanimity" of the
lower federal courts is that despite how they might feel about the prior
decisions, absent indications the Supreme Court is going to depart from
precedent, they are bound to apply it. Or rather to misapply it, for as I
argue, subsequent lower courts have read Miller more broadly than the opinion
warrants. See Quilici v. Morton Grove, 695 F.2d
270 (7th Cir. 1982), cert.
denied, 464 U.S. 863 (1983) ("[I]t seems
clear that the right to bear arms is inextricably connected to the preservation
of a militia. This is precisely the manner in which the Supreme Court
interpreted the [S]econd [A]mendment in [Miller].").
 See, e.g.,
Quilici, 695 F.2d at
269. In Quilici,
the Seventh Circuit upheld an ordinance passed by the city of Morton Grove,
Illinois that, in essence, banned the possession of handguns within the city
limits. Id. at
263. In its decision,
the Seventh Circuit cited Presser v. Illinois, 116 U.S.
252 (1886), as controlling.
Id. at 269. The court held that
Presser "plainly states that '[t]he Second Amendment declares that
it shall not be infringed, but this ... means no more than 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....'" Id.
(quoting Presser, 116 U.S. at
265). For a discussion
of Presser, see infra notes 100-10
and accompanying text.
 92 U.S.
 See Henigan,
supra note 3, at
 Cottrol &
Diamond, supra note 3, at
 The section made it a crime
[T]wo or more persons shall band
or conspire together, or go in disguise upon the public highway, or upon the
premises of another, with intent to violate any provision of this act, or to
injure, oppress, threaten, or intimidate any citizen, with intent to prevent or
hinder his free exercise and enjoyment of any right or privilege granted or
secured to him by the Constitution or laws of the United States, or because of
his having exercised the same ....
347 (citing 16 Stat. 141
 Cruikshank, 92 U.S. at
 See Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a
Constitutional Right 159 (1984) ("The federal courts ...
could not offer relief against defendants accused of conspiracy to deprive
complainants of their freedom of action and their firearms, for these
violations were common-law crimes actionable only at the local level.").
 Cruikshank, 92 U.S. at
 Id. Cf.
Eckert v. Philadelphia, 477 F.2d 610, 610 (3rd Cir.
1973) (stating that "the right to keep and bear arms is not a right
given by the United States Constitution"); U.S. v.
Kozerski, 518 F. Supp. 1082, 1090 (D.N.H. 1981) ("It is well
established that the Second Amendment is not a grant of a right but a
limitation on the power of Congress and the national government ....").
 Cruikshank, 92 U.S. at
 See Gitlow v. New York, 268 U.S. 652 (1925) (assuming that the
First Amendment operated as a restraint on state governments). Even though not
all of the Bill of Rights has been applied to the states through the Due
Process Clause of the Fourteenth Amendment, the extreme reliance of the Supreme
Court's dismissal of the Second Amendment claim in Cruikshank upon their
rationale for the dismissal of the First Amendment claim in the same case seems
to preponderate in favor of at least a reexamination by lower courts of the
Cruikshank decision's rationale.
 See Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968). While the
jury may still be out on whether the Due Process Clause of the Fourteenth
Amendment was actually meant to incorporate the Bill of Rights, unless
the Court is prepared to repudiate a doctrine it has developed over a half
century of decisions, it ought to at least be consistent in its application of
 116 U.S.
at 253 (quoting
Ill. Mil. Code Art. XI
 The Supreme Court's
opinion notes that the group was incorporated under the laws of Illinois and
stated its aim, in its charter, as having the purpose of "improving the
mental and bodily condition of its members" that they may be qualified
"for the duties of citizens of a republic." This goal it intended to
accomplish through "knowledge of ... laws and political economy ... and
... in military and gymnastic exercises." Id. at
 Id. U.S. at 254-55.
 Id. at 254.
 Id. at 264.
 Id. at 265.
 Id. "The
... proposition to the effect that Cruikshank held that the Second
Amendment is not a limitation on the states ignored that Cruikshank did
not involve state infringement of rights." Halbrook, supra note 88, at
 Id. at 265-66.
 See Halbrook, supra note 88, at
e.g., Quilici, 695 F.2d at
supra note 40 and accompanying
supra note 38 and accompanying
F.2d 916 (1st Cir. 1942).
 "The First Circuit
Court of Appeals, in deciding [Cases] began what can only be described
as a rebellion against the holding in Miller that the Second Amendment
guarantees the right of every individual to keep and bear any arms suitable for
militia use." Halbrook, supra note
88, at 188.
 Cases, 131 F.2d at 922 (emphasis added).
 Id. at 923.
 Id. The court
also found the Commerce Clause empowered the Federal Government to pass such
firearm statutes despite the language of the Second Amendment. Id.
 A later circuit court
opinion, citing the Cases interpretation of the Miller decision,
called adherence to the Miller court's test as "madness" in an
age of nuclear weapons. See United States v. Warin, 530
106 (6th Cir. 1976). Of
course, the very language of the Second Amendment itself suggests limits to the
Second Amendment's guarantee. See Kates, supra note
3, at 261 (suggesting
the language of the Second Amendment itself would exclude from protection
"weapons too heavy or bulky for the ordinary person to carry").
Applied along with some old-fashioned common sense, these limits would take
care of the parade of horribles (the individual right to possess nuclear
weapons) that gun control advocates always spring on anyone who suggests the
language of the Second Amendment means something.
most of Cases may be considered mere dictum because its narrow
holding was that convicted violent felons (a class which traditionally had
forfeited various civil rights, including militia membership) could be
constitutionally disarmed." Halbrook,
supra note 88, at 189.
infra note 217 and accompanying
F.2d 261 (3rd Cir. 1942).
 "[N]ot a single
original source quoted in Tot substantiates its assertion that the
Second Amendment 'was not adopted with individual rights in mind,'" and
"at least two of [the articles cited by the court] directly contradict the
Tot thesis." Halbrook, supra
note 88, at 190-91.
 Tot, 131 F.2d at 265.
 Id. at 266.
 "The contention of
the appellant in this case could, we think, be denied without more under the
authority of [Miller]." Id.
 Id. (footnotes
 "The experiences
in England under James II of an armed royal force quartered upon a defenseless
citizenry was fresh in the minds of the Colonists." Id. I confess
being puzzled by the court's choice of historical examples here. Might not the
memory of the armed royal forces of George III being quartered among the
colonists in America have been a bit fresher in the minds of those who framed
the Second Amendment?
 Tot, 131 F.2d at 266.
United States v. Hale, 978 F.2d
1019 (8th Cir. 1992).
 Tot, 131 F.2d at 266. Again, the court
indulged in a straw man argument. None of the scholars cited in note 3 argued
for an unqualified or absolute right to keep and bear arms.
 The Statute of
Northampton, enacted by Richard III, stated as follows:
[N]o man great or small, of
whatever condition soever he be, except the King's servants in his presence,
... and also upon a cry for arms to keep the peace, and the same in such places
where such acts happen, be so hardy as to come before the King's Justices, or
other of the King's ministers doing their office, with force and arms, nor
bring no force in affray of the peace, nor to go nor ride armed by night nor by
day, in fairs, markets, nor in the presence of the Justices or other ministers,
nor in no part elsewhere....
David T. Hardy,
Origins and Development of the Second Amendment 15 (1986) (quoting
Statute of Northampton, 1328, 2 Edw. III, ch. 3).
Despite the absolute language of the statute, there is no evidence whatsoever
that anyone was actually prosecuted under it. In fact, when James II attempted
to use the Statute of 1328 against a militant Bristol Anglican named Sir John
Knight, the King's Bench refused to interpret it as anything approaching an
absolute prohibition. See Malcom,
supra note 3, at 104-05. According to the
reports of the case, the King's Bench noted that the statute was "almost
gone in desuetudinem." See Hardy,
supra at 16 (quoting Sir John Knight's Case, 87 Eng.
Rep. 75, 90 Eng. Rep. 330 (King's Bench 1687)) (the latter term
being used to denote a statute that has lapsed from neglect). Sir John was
acquitted by a jury, and the Chief Justice noted the intent of the statute was
to punish those who went armed to "terrify the King's subjects."
Id. Further, the court specifically recognized that it was customary to
allow "[g]entlemen to ride armed for their security." See
Malcom, supra note 3, at 105. Professor Malcom further notes that
"[i]t was very likely the unwillingness of the Court of King's Bench to
apply the statute of 1328 in Knight's case that drove home to [James II] the
need for a more general statute to disarm subjects." Id.
 Tot, 131 F.2d at 266 (footnote omitted).
 Id. For an
examination of Tennessee's version of the Second Amendment and the case law
interpreting it, see Reynolds, supra note 3.
 Tot, 131 F.2d at 266.
e.g., Andrews v. State, 50 Tenn. 141, 156-57 [ed. 3
182-83] (1871) (holding
that the attempt to ban "military weapons" like "repeating
pistols" was unconstitutional under the Tennessee constitution). For a
discussion of Andrews, see Reynolds, supra note
3, at 663-65. As
previously mentioned, at the time these cases were decided, there was general
agreement as to the line of demarcation between military and nonmilitary
 Article I, section 10
of the Constitution limits the legislative power to those "herein
granted." Further, the Tenth Amendment seems to have been meant to
backstop Constitutional silence by explicitly resolving any doubts about where
any residuum of power lies: either the states or the people.
 Halbrook, supra note 88, at
189 (footnote omitted).
 Thompson v. Dereta, 549 F. Supp. 297, 299 (C.D. Utah 1982) (quoting
United States v. Swinton, 521 F.2d 1255, 1259 (10th Cir.
1975)). This case represents another bad habit lower courts have
developed: making sweeping statements about the Second Amendment followed by a
citation to another lower court decision. Sometimes, as in this case, it is
misleadingly followed by a citation to Miller, as if the Supreme Court's
decision contained language that somehow echoed that of the language quoted
from the other lower court.
 Rice v.
United States, 850 F. Supp. 306, 309 (E.D. Penn. 1994).
 See Van
Alstyne, supra note 3, at
1254 ("The freedoms of speech
and of the press, it has been correctly said, are not absolute. Neither is
one's right to keep and bear arms absolute."). See also Don
B. Kates, The Second Amendment: A Dialogue, 49 J.L.
& Contemp. Probs. 142,
145-46 (1986) (writing that
"reasonable gun controls are no more foreclosed by the second amendment
than is reasonable regulation of speech by the first amendment").
 Thus, they seem to be
abdicating that oft-quoted role of the judiciary: to interpret the law.
See Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 177
(1803) ("It is emphatically the province and duty of the judicial
department to say what the law is.").
 569 F.
Supp. 395 (D.S.C. 1983).
 This statute prohibits
the sale of firearms to those who have been found to be "mentally
defective" or who have been committed to any mental institution.
Id. at 398.
 Id. (citations
Eckert v. City of Philadelphia, 477 F.2d 610, 610 (3rd Cir.
United States v. Kozerski, 518 F. Supp. 1082, 1090 (D.N.H.
 The notion that the
Constitution, as a document, "grants" any rights would have horrified
the Framers, many of whom were opposed to the Bill of Rights on the ground that
any enumeration would tempt people to claim that no rights existed outside
U.S. v. Wiley, 309 F. Supp. 141, 145 (D. Minn. 1970) (citing
Cases v. United States, 131 F.2d
916 (1st Cir. 1942)).
F.2d 103 (6th Cir.), cert.
denied, 426 U.S. 948 (1976).
 Id. at 105. The source of the term
"sedentary militia is unclear." Id. at
n.1. The term was likely
drawn from the Ohio Constitution. See Ohio Const. Art. IX, § 1 (subjecting all
resident citizens between the ages of 17 and 67 to possible militia service).
 Warin, 530 F.2d at 105. The district court
also found that the defendant was "an engineer and designer of firearms
whose employer develops weapons for the government ...." Id.
Further, the defendant had made the nine-millimeter submachine gun himself.
 "Agreeing as we do
with the conclusion in Cases ... that the Supreme Court did not lay down
a general rule in Miller, we consider the case on its own facts and in
light of applicable authoritative decisions." Id.
F.2d 144 (6th Cir. 1971).
 Warin, 530 F.2d. at
106 (quoting Stevens, 440 F.2d at 149).
 After the quoted
statement, the Stevens court cites to page 178 of the Court's opinion in
Miller. Miller merely noted that absent evidence that a sawed-off
shotgun was somehow related to a well regulated militia, the court could not
say that its possession was protected by the Second Amendment. Miller, 307 U.S. at
178. That is the whole
of its treatment of the Second Amendment claim in Stevens, yet the
Warin court cites it as if it was a conclusion with some legitimate
basis in law. The Sixth Circuit's opinions are monuments to intellectual
dishonesty with regard to the Second Amendment and the Miller opinion.
 Stevens, 440 F.2d at 149.
 Warin, 530 F.2d at 106 (citations omitted)
 The Sixth Circuit's
argument is the B side to a familiar argument put forth by gun control
advocates: The Second Amendment should be interpreted to protect only the right
to keep and bear those arms in use at the time of the Framing, i.e., flintlock
muskets. Strangely enough, such quaint constitutional analysis is quickly
abandoned when interpreting the First Amendment's free speech clause or the
Eighth Amendment's cruel and unusual punishment clause--both of which have been
employed in ways the Framers could never have imagined.
1019 (8th Cir. 1992).
 Id. at 1017.
 Id. at 1018.
 Id. at 1019.
 Id. at 1020 (emphasis in
original) (citations omitted).
 The entire purpose for
the Framers' provisions in the Constitution for "militias" must be
understood in light of their juxtaposition with "standing armies."
Compare U.S. Const. art. I,
§ 8, cl. 12 (giving Congress the power to "raise and support
Armies") with U.S. Const.
art. I, § 8, cl. 15 (giving Congress the power to "provide for
calling forth the Militia ..."). Standing armies were antithetical to the
ideals of eighteenth century republican ideology. Joyce Lee Malcom writes that
"[American] jealousy of their personal right to have weapons was magnified
by what one historian characterized as an 'almost panic fear' of a standing
army ...." See Malcom, supra
note 3, at 143. See also J.G.A. Pocock, The Machiavellian Moment: Florentine Political
Thought and the Atlantic Republican Tradition 432 (1975)
(describing the scheme for military training of all freeholders in England as
"essentially a means of education in civic virtue").
Furthermore, the "militia" as a military force
comprised of the body of the citizenry was distinguished from a "select
militia"--like the modern National Guard--which was regarded as just as
threatening to civic republican ideals as a standing army. See
Malcom, supra note 3, at 142 ("Although armies were particularly
feared, the colonists were also alert to the dangers of a 'select militia'
....") (footnote omitted). Don Kates takes aim at those, like Dennis
Henigan or officials of the ACLU, who have suggested that the National Guard
and the "Militia" of the Second Amendment are equivalent. Kates
The American Civil Liberties
Union's argument against an individual right interpretation states that the
amendment uses "militia" in the sense of a formal military force
separate from the people. But this is plainly wrong. The Founders ... defined
it in some phrase like "the whole body of the people," while their
references to the organized-military-unit usage of militia, which they called a
"select militia," were strongly pejorative.
Kates, supra note
3, at 216.
 For contemporaneous
statements expressing distrust of standing armies, see 5
The Founders' Constitution 210 (Philip B. Kurland
& Ralph Lerner eds., 1987) (excerpting statements from the
Pennsylvania Constitution of 1776, and the debates in Congress over the Bill of
Rights). For the history of the elimination of the state militia as a player in
national defense policy, see Denning, supra note 3 (describing the successful efforts of the military
establishment to bring state militia units under federal control).
Despite scholarly opinion to the contrary, the
Militia-equals-National-Guard-equals-no-right-to-keep-and-bear-arms is a
familiar refrain among those holding a collectivist view of the Second
Amendment. See Henigan, supra note 3,
But see Williams, supra note 3, at
598 (acknowledging that it is
"probable that [the Amendment] used 'Militia' in this broader
sense"). Rarely, however, do these proponents take their argument to its
logical conclusion. But see Reynolds & Kates, supra
note 3, at 1745
(taking the argument seriously in an effort to demonstrate to those who use it
the unintended consequences of such a position). In fact, I have argued
elsewhere that the those forming the neomilitias, so much in the news recently,
often take this position as support for the legality of their actions.
See Denning, supra note 3.
The Supreme Court recognized as much when it stated as follows:
The Militia which the States were
expected to maintain and train is set in contrast with Troops which they were
forbidden to keep .... The sentiment of the time strongly disfavored standing
armies; the common view was that adequate defense ... could be secured through
the Militia--civilians primarily, soldiers on occasion.
Miller, 307 U.S. at
 See Llewellyn, supra note 12 at
v. Morton Grove, 695 F.2d 261 (7th
Cir. 1982), cert. denied, 464 U.S. 863
 Id. at 264.
 Id. at 264-65. See
Quilici v. Morton Grove, 532 F. Supp. 1169 (N.D. Ill.
 Id. While
Illinois, like many other states, had a provision in its constitution that
ostensibly protected the right to keep and bear arms, the provision bore a
qualification which I argue renders it almost useless as a protection. Article
1, section 22 of the Illinois constitution reads: "Subject only to the
police power, the right of the individual citizen to keep and bear arms shall
not be infringed." Ill. Const.
art. I, § 22. Conditioning such a right on the continued approval
of the state tends to reduce the efficacy of such a right. In any event, the
Quilici court found that Morton Grove's proposal was well within its
police powers and that as a matter of state constitutional law, the ordinance
was valid. Quilici, 695 F.2d at
 Quilici, 695 F.2d at
 Id. at 270.
Presser, 116 U.S. at
supra note 180 and accompanying
U.S. 652 (1925).
 "The Supreme Court
has specifically rejected the proposition that the entire Bill of Rights
applies to the states through the [F]ourteenth [A]mendment."
Quilici, 695 F.2d at
270 (citations omitted).
e.g., Duncan v. Louisiana, 391 U.S. 145, 148-49
(1968) (stating as one test whether the "right is among those
'fundamental principles of liberty and justice which lie at the base of all our
civil and political institutions'"); Palko v. Connecticut,
302 U.S. 319, 325 (1937) (asking whether a right is "the very
essence of a scheme of ordered liberty") (overruled by
Benton v. Maryland, 395 U.S. 784 (1969)).
 Quilici, 695 F.2d at
278 (Coffey, J.,
 No sooner does the
court finish stating that "since we hold that the second amendment does
not apply to the states, we need not consider the scope of its guarantee of the
right to bear arms," than it "briefly comment[s] on ... the scope of
the second amendment." Id. at
 Id. Actually,
the Supreme Court's language was a bit broader; it conditioned its holding on
the "absence of any evidence tending to show" the possession or use
of a shotgun "has some reasonable relationship to the
preservation or efficiency of a well regulated militia." See
Miller, 307 U.S. at
178 (emphasis added).
Nor is the difference in phraseology insignificant. The Seventh Circuit's
formulation of the Miller holding is considerably more restrictive, not
to mention less ambiguous than that of the Supreme Court.
 Quilici, 695 F.2d at
 See Van
Alstyne, supra note 3, at
1237-38. Professor Nelson Lund makes
the similar point that nothing is wrong with the amendment, the problem lies
with modern readers of the amendment. See Nelson Lund,
The Past and Future of the Individual's Right to
Arms, Geo. Mason U. L. Rev. (forthcoming
1996). He writes that "[t]he clumsiness of the modern reader ...
can be cured if one simply uses standard interpretive tools and avoids imposing
anachronistic prejudices on the text." Id.
 "No Soldier shall,
in time of peace be quartered in any house, without the consent of the Owner,
nor in time of war, but in a manner to be prescribed by law."
U.S. Const. amend. III.
 See Herz,
supra note 1; Henigan, supra
 47 F.3d
120 (4th Cir. 1995).
 Id. at 124.
 Id. (quoting
United States v. Johnson, 497 F.2d 548 (4th Cir. 1974) (quoting
United States v. Miller, 307 U.S.
 81 F.3d
98 (9th Cir. 1996).
 Id. at 100.
Presser, 116 U.S. at
 Hickman, 81 F.3d at 101.
supra note 68 and accompanying
supra note 64 and accompanying
 Hickman, 81 F.3d at 101.
supra note 77 and accompanying
 Hickman, 81 F.2d at 102.
 Of course, the Supreme
Court was thought to have "settled" the issue of Congress's power
under the Commerce Clause, too. See United States v.
Lopez, 115 S. Ct. 1624 (1995). Thus the argument that a constitutional
argument is invalid because the Supreme Court has "settled" this
issue is a dangerous one to make--the Court could always change its mind.
 When one federal
appeals court judge had the temerity to disagree with his court's general
statements regarding the Second Amendment, while still concurring with the
result, he was attacked, almost hysterically, in the court's opinion.
In the case of United States v. Hale, 978 F.2d
1016 (8th Cir. 1992), Circuit
Judge Beam wrote a special concurrence in which he stated, in relevant part:
I ... agree that Hale's
possession of ... [an unregistered firearm] ... is not protected by the Second
Amendment. I disagree that Cases v. United States, 131
F.2d 916 (1st Cir. 1942);
United States v. Warin, 530 F.2d
103 (6th Cir. 1976);
United States v. Oakes, 564 F.2d 394 (10th Cir.
1977); and United States v. Nelson, 859 F.2d 1318
(8th Cir. 1988) properly interpret the Constitution or the Supreme
Court's holding in United States v. Miller ... insofar as they say that
Congress has the power to prohibit an individual from possessing any type of
firearm, even when kept for lawful purposes. Judge Gibson's opinion seems to
adopt that premise and with that holding, I disagree.
Hale, 978 F.2d at
1021 (Beam, J.
For his part, Judge Gibson said:
The concurrence flies in the face
of stare decisis in arguing that this court did not properly interpret the
Second Amendment or Miller in Nelson, which is consistent with
our earlier decisions in Cody and Decker. The concurrence would
also flout uniform precedent from other circuits, particularly since
Nelson cites and relies on Oaks and Warin and Cody
n.3. This petulant aside
is a good example of how terrified judges are of questioning too closely the
underpinnings of these Second Amendment cases. Many courts use stare
decisis precisely in this manner: as a sword to strike down those who would
question the reasoning of the cases.
Contemporary construction is
properly resorted to to illustrate and confirm the text, to explain a doubtful
phrase, or to expound an obscure clause; and in proportion to the universality
of that construction, and the known ability and talents of those, by whom it is
given, is the credit, to which it is entitled. It can never abrogate the
text; it can never fritter away its obvious sense; it can never narrow down its
true limitations; it can never enlarge its natural boundaries.
1 Joseph Story,
Commentaries on the Constitution of the United States 288 (3d. ed.
1858) (emphasis added) (footnotes omitted).
 Nor am I alone in my
suspicions. Sanford Levinson has written that he
cannot help but suspect that the
best explanation for the absence of the Second Amendment from the legal
consciousness of the elite bar, including that component found in the legal
academy, is derived from a mixture of sheer opposition to the idea of private
ownership of guns and the perhaps subconscious fear that altogether plausible,
perhaps even "winning" interpretations of the Second Amendment would
present real hurdles to those of us supporting prohibitory regulations.
Levinson, supra note
3, at 642.
 See Karl
N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or
Canons About How Statutes Are to be Construed, 3 Vand.
L. Rev. 395, 397 (1950).
 Id. at
 Id. at
398-99. Or, one might add, by the text of the Constitution.
Warin, 530 F.2d at
106 ("If the
logical extension of the defendant's argument for the holding of Miller
was inconceivable in 1942, it is completely irrational in this time of nuclear
 Story, supra note 215, at 303
(quoting Sturgis v. Crowninshield, 17 U.S. (4 Wheat.) 122
 In that poll, the
question presented was whether one agreed or disagreed with the following
statement: "Do you agree that the Constitution guarantees you the right to
own a gun?" In response, 75% of those polled agreed; only 18% disagreed.
The Fight to Bear Arms, U.S. News And World
Report, May 22, 1995, at 29.
Curiously, the poll, taken only a month after the Oklahoma City
bombing, indicated that people were less willing, as compared to the previous
year, to exchange some of their constitutional rights for greater
"security." The numbers indicated that 47% of those asked would not
trade liberty for security, as opposed to 38% in 1994. Id.
 See Llewellyn, supra note 12, at
401 (describing a student's conclusion about a Pennsylvania state court
judge as: "Gibson, C.J. decided as he wanted to, whether the
precedents were in his way or not.").
supra note 214 and accompanying
supra note 222 and accompanying
supra note 18 and accompanying
 See N.Y. Times, May 2, 1994, at A24 (advertisement from
constitutional law professors opining that the Second Amendment protected only
a state's right to have a National Guard unit and that opinions to the contrary
were somehow fraudulent).
 See Warren
E. Burger, The Right to Bear Arms, Parade
Magazine, Jan. 14, 1990, at 4.
 See Gary
Wills, To Keep and Bear Arms, The N.Y. Rev. of
Books, Sept. 21, 1995, at 62 (arguing that the Second Amendment
was anachronistic and rhetorical at the time Madison proposed it).
supra note 1, at 146.
Reynolds & Kates, supra note 3, at
e.g., H. Jefferson Powell, Rules for Originalists, 73
Va. L. Rev. 659, 677 (1987) ("Rule 8: If
your history uniformly confirms your predilections, it is probably bad
 See Gordon S. Wood, The Creation of the American Republic,
1776-1787, at 320 (1969). Wood writes:
These were not the anarchic
uprisings of the poor and destitute; rather they represented a common form of
political protest and political action in both England and the colonies during
the eighteenth century by groups who could find no alternative institutional
expression for their demands and grievances, which were more often than not
Id. (footnote omitted).
Denning, supra note 3, at
supra note 12 and accompanying
 Llewellyn, supra note 12, at