Second Amendment: Only Militias Need Apply, Part II

Originally posted by mkfox on 06/15/07

So it seems clear the Second Amendment conditionally applies to state military or law enforcement forces if not simply state militias. Because there are no more militias akin to those of the Revolutionary era, does that render the amendment obsolete? Not quite. Federal law, under U.S. Code Chapter 10 § 311, first codified in 1906, defines two classes of militias: the “organized militia, which consists of the National Guard and the Naval Militia” and the “unorganized militia,” consisting of members of the militia who are not already members of the National Guard or Naval Militia and “all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32 [National Guard enlistment eligibility], under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”

Federal law makes it clear that saying a militia is comprised of any willing citizen-soldiers is inaccurate. Also, the Fifth Amendment stipulates due process rights for militia members: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger ?” But does federal law mean that all male citizens ages 17-45 have the right to “bear arms”? If the Second Amendment is applied, a specified “unorganized” militia cannot be a “well-regulated” one. Is the federal militia law unconstitutional for designating only men as eligible members? Probably not, considering that the Supreme Court ruled in 1981 in Rostker v. Goldberg in regard to national conscription, “Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women.”

The U.S. Supreme Court held in 1965 in Maryland v. U.S., “The National Guard is the modern Militia reserved to the States by ? the Constitution.” In 1990, the Supreme Court unanimously ruled in Perpich v. Department of Defense that the National Guard is the militia. The court cited a Illinois Supreme Court decision in 1879 that defined “militia”: “Lexicographers and others define militia, and so the common understanding is, to be `a body of armed citizens trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace.’ That is the case as to the active militia of this State. The men comprising it come from the body of the militia, and when not engaged at stated periods in drilling and other exercises, they return to their usual avocations, as is usual with militia, and are subject to call when the public exigencies demand it.” The court held in Perpich, “Notwithstanding the brief periods of federal service, the members of the State Guard unit continue to satisfy this description of a militia.”

U.S. gun control laws are nothing new and the young republic started interpreting the Second Amendment in regard to these restrictions at the state level. Some kind of concealed weapons laws existed in many states, and most were upheld as constitutional – a few at least in part because judges held the Bill of Rights did not pertain to the states (something the U.S. Supreme Court didn’t refute until 1925). Most of the laws struck down were found in violation of the states’ constitutions rather than the U.S. Constitution. Supreme Court Justice Joseph Story, one of the court’s most influential jurists in its history, wrote in “Commentaries on the Constitution of the United States” in 1833: “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.”
? The Tennessee Supreme Court ruled in 1840 that a state law prohibiting carrying a concealed bowie knife did not violate Section 26 of the state’s constitution – “That the free white men of this State, have a right to keep and bear arms for their common defence” – which the court affirmed was rooted in the Second Amendment. The court traced the amendment back to James II of England disarming the people and Parliament’s subsequent proclamation that “subjects which are Protestants, may have arms for their defence, suitable to their condition as allowed by law.” The Tennessee court asked, “But to keep and bear arms for what?” and answered, “It is declared that they may keep and bear arms for their common defence. ? The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed. [original emphasis]” The same court upheld this ruling four years later.
? In 1842, the Arkansas Supreme Court ruled that a state law prohibiting carrying a concealed weapon didn’t violate either the state or federal constitutions. No constitutional right is absolute, the court ruled, “And if the right to keep and bear arms be subject to no legal control or regulation whatever, it might, and in time to come doubtless will, be so exercised as to produce in the community disorder and anarchy.” A concurrent judge ruled, “If we look into the history of the country, we shall alike arrive at the conclusion that the power given the militia to keep and bear arms resulted from the necessity of having a military force at all times at the command of the Federal and State governments, armed and ready to repel force by force, sustain the laws, and enforce obedience to the mandates of their courts. ? To assert that a citizen is entitled to protection from his government, the means of securing it, is a contradiction in terms difficult if not impossible to be reconciled.”
? A Louisiana appellate court upheld a state law prohibiting concealed weapons in 1856, ruling, “[The Second Amendment] was never intended to prevent the individual States from adopting such measures of police as might be necessary, in order to protect the orderly and well disposed citizens from the treacherous use of weapons not even designed for any purpose of public defence, and used most frequently by evil-disposed men who seek an advantage over their antagonists, in the disturbances and breaches of the peace which they are prone to provoke.”
? The Texas Supreme Court upheld a law in 1872 prohibiting carrying certain deadly weapons, ruling, “The `arms’ referred to in the second amendment to the United States constitution are the arms of a militiaman or soldier, and they do not comprise dirks, bowie knives, etc., regulated by the legislature in the act of April 12, 1871. [original emphasis]” The court quoted historian Joel Bishop’s 1858 work “Criminal Law”: “As to its interpretation, if we look to this question in the light of judicial reason, without the aid of specific authority, we shall be led to the conclusion that the provision protects only the right to `keep’ such `arms’ as are used for purposes of war, in distinction from those which are employed in quarrels and broils, and fights between maddened individuals, since such only are properly known by the name of `arms,’ and such only are adapted to promote `the security of a free state.’ In like manner the right to `bear’ arms refers merely to the military way of using them, not to their use in bravado and affray.”
? In 1874, the Georgia Supreme Court upheld a state law prohibiting firearms being carried into courthouses, ruling, “The language of the Constitution of this state, as well as that of the United States, guarantees only the right to keep and bear the `arms’ necessary for a militiaman. It is to secure the existence of a well-regulated militia. ? The preamble to the clause is the key to the meaning of it. The word `arms,’ evidently means the arms of a militiaman, the weapons ordinarily used in battle ?”
? The aforementioned Illinois Supreme Court 1879 case upheld the exemption of militiamen from serving on juries and discussed a law prohibiting militiamen from drilling or parading with arms without a license from the governor. “It is within the power of the General Assembly to enact laws for the suppression of that which may endanger the public peace, and impose penalties for the infraction of such laws,” the court ruled. “What will endanger the public security must, as a general rule, be left to the wisdom of the legislative department of the government.”
? The Missouri Supreme Court upheld a state law in 1881 prohibiting carrying a firearm or deadly weapon into a house of worship, ruling, “The law prohibiting the wearing of concealed weapons, is a police regulation for the protection of society and not an infringement of the constitutional right to bear arms. It does not prohibit the right to bear arms, but provides that they shall not be worn in a manner dangerous to the welfare of society.”
? West Virginia’s supreme court ruled in 1890 and North Carolina’s ruled in 1903 that mail-carriers do not have the right to carry a revolver.
? The Kansas Supreme Court in 1905 upheld a state prohibition on carrying concealed weapons, interpreting the Second Amendment to mean, “Here, also, the right of the people to keep and bear arms for their security is preserved, and the manner of bearing them for such purpose is clearly indicated to be as a member of a well-regulated militia, or some other military organization provided for by law.”
? The Ohio Supreme Court ruled in 1920 that a state law prohibiting carrying concealed weapons did not violate the state or U.S. constitutions.

The District of Columbia Circuit Court of Appeals ruled on March 9, 2007, in Parker v. District of Columbia that three District of Columbia private firearms statutes – denying registration of a pistol not registered before 1976 except for a retired police officer, prohibiting carrying a concealed weapon in public, and requiring firearms kept in the home to be unloaded, disassembled or bound by trigger lock – violate the Second Amendment. This was the first time a federal appeals court struck down a gun control law on Second Amendment grounds, but this ruling contradicts Supreme Court precedence and several other federal appeals court rulings. The last time the Supreme Court defined the Second Amendment was in 1939 in U.S. v. Miller, when the court ruled unanimously that a federal law prohibiting the interstate transport of a saw-off shotgun did not violate the Second Amendment. Speaking through Justice James McReynolds, the court clearly indicated that the amendment refers to the organization and armament of state militias. “In the absence of any evidence tending to show that possession or use of a `shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” The court pointed to historical precedence with writings of William Blackstone, Adam Smith and H.L. Osgood to show how militias had always been a focus of common defense in England and colonial America. “Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed,” McReynold’s decision stated. “But none of them seems to afford any material support for the challenged ruling of the court.” The Supreme Court since cited Miller in a 1980 case upholding a federal law prohibiting convicted felons of possessing firearms. The dissenting judge in Parker scolded the majority for ignoring precedence: “However the Second Amendment right has been subsequently labeled by others – whether collective, individual or a modified version of either – Miller’s label is the only one that matters. And until and unless the Supreme Court revisits Miller, its reading of the Second Amendment is the one we are obliged to follow.”

The amicus curiae brief submitted to the court in Miller by the United States argued: “The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress. It cannot be doubted that the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England and of this country. In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. 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 law. The `arms’ referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to the use by criminals are not within the protection of the Amendment. ? Indeed, the very declaration in the Second Amendment that `a well-regulated militia, being necessary to the security of a free State,’ indicates that the right secured by that Amendment to the people 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.”

At least 42 federal appeals court rulings in 10 of the 11 circuits have upheld the militia interpretation since Miller. The first federal appeals court decisions after Miller that denied the individual-right interpretation of the Second Amendment were the First and Third Circuits in 1942. The First Circuit ruled, “The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right.” The Third Circuit called possessing weapons a “privilege” and ruled, “Weapon bearing was never treated as anything like an absolute right by the common law.” With Miller nearly 70 years old, an increase in gun-rights lawsuits to combat the increase of gun control legislation and a change of heart on the issue in the Justice Department, federal appeals courts continue to hear Second Amendment challenges. (The Sixth Circuit Court of Appeals affirmed the constitutionality of the federal assault weapons ban in 1997 but on interstate commerce grounds rather than Second Amendment challenges.) After a federal district judge invalidated a law prohibiting possession of a firearm while on a restraining order on Second Amendment grounds, the Fifth Circuit Court of Appeals became the first appeals court to reject the militia interpretation – sort of. The appeals court ruled in U.S. v. Emerson in 2001 that the Second Amendment referred to individual firearm rights, but the court still upheld the federal law in question, reinstated the defendant’s original charges and remanded the case back to trial court, where the defendant was ultimately convicted and sentenced. Because the appeals court did not invalidate the law in question on constitutional grounds, the Second Amendment affirmation should only be regarded as non-biding dicta. Two years later, the Fifth Circuit upheld the conviction of a felon possessing a firearm and ruled, “Emerson is a carefully worded decision, and we do not address the contention that its recognition of a individual right to keep and bear arms is dicta.” A defendant tried to cite Emerson in a 2004 Tenth Circuit appeal, but the court rejected this claim: “First, we cannot rely on a ruling from another circuit when this court has ruled to the contrary. … Second, the Fifth Circuit stands alone in its interpretation of the Second Amendment as conferring an individual right to bear arms. In contrast, the Fourth, Sixth, Seventh, and Ninth Circuits have adopted the most restrictive interpretation (also known as `the collective rights model’) of the Second Amendment. Under `the collective rights model,’ the Second Amendment never applies to individuals but merely recognizes the state’s right to arm its militia. Under this interpretation of the Second Amendment, an individual has a right to bear arms, but only in direct affiliation with a well-organized state-supported militia.”

Because of the conflict between the District of Columbia Circuit Court of Appeals’ ruling in Parker and dozens of other appeals courts rulings, the Supreme Court now has just cause to decidedly affirm what the Second Amendment means.

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