Right to Bear Arms

The historical context of an amendment illuminates its text, but in the final analysis, its meaning is determined only upon examination of the specific words in the amendment. Only the Second Amendment starts with a "mini-preamble." For years scholars have debated as to whether "militia" was intended to be the subject of the sentence, and whether the comma before "shall" was grammatically necessary, or if it was a mistake.

The Second Amendment and a right to bear arms were first addressed in the 1875 case of United States v. Cruikshank. The case dealt with some Ku Klux Klansman convicted of conspiring to deprive two African Americans of the right to assemble, the right of free speech, and the right to keep and bear arms. The Supreme Court held that "bearing arms for a lawful purpose is not a right guaranteed by the Constitution . . .The Second Amendment declares that it shall not be infringed; but this . . . means no more than it shall not be infringed by Congress. This [amendment] has no other effect than to restrict the powers of the national government." Cruikshank began the precedent that continues to the present day: unlike most of the rest of the Bill of Rights, the Second Amendment has never been incorporated into the Fourteenth Amendment (it pertains only to federal power and has never been made applicable to the states through the Due Process Clause of the Fourteenth Amendment).

The 1886 case of Presser v. Illinois involved a challenge to an Illinois law barring paramilitary organizations from drilling or parading without a license. Although stating that "it is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States," and "states . . .cannot prohibit the people form keeping and bearing arms," the Supreme Court found that the challenged activity "is not an attribute of national citizenship." Presser confirmed that the Second Amendment's meaning is to prevent the federal government from infringing upon the right of the state to form militias, and unequivocally rejected the idea of a citizen-created militia. Two more late-nineteenth century cases, Miller v. Texas, and Robertson v. Baldwin, essentially reiterated these points.

Although debate surges unabated around the right to bear arms, the Supreme Court has only once addressed the issue in the twentieth century. In United States v. Miller (1934), two men challenged their convictions for transporting an unregistered 12-gauge sawed off shot gun across state lines, a violation of the National Firearms Act. The Supreme Court ruled that the Second Amendment does not guarantee the right to keep and bear a double-barreled, sawed off, 12-gauge shot gun, because its possession did not have "some reasonable relationship to the preservation or efficiency of a well-regulated militia."

The Supreme Court has shown no indication of revisiting these early cases, and the lower courts have generally followed precedent. In one widely-publicized case in the United States Court of Appeals, Quilici v. Village of Morton Grove (1982), a town's ban of handguns was found to be constitutional. The Supreme Court declined to accept an appeal of the case.