United States v. Cruikshank
The first major federal case dealing with the Second Amendment was United States v. Cruikshank (92 U.S. 542, 1876). The defendants, members of the Ku Klux Klan, were convicted under the Enforcement Act of 1870 of conspiracy to deprive two African-American men of their right of assembly and free speech and their right to keep and bear arms as guaranteed by the First and Second Amendments of the U.S. Constitution. In this case, the Supreme Court denied that the federal Bill of Rights applied to the states via the Fourteenth Amendment. The Court ruled that
Bearing arms for a lawful purpose is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The 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.
This finding has been interpreted in several ways. One is that the states may limit, if not ban, the possession of arms, if they so desire. Others interpret the statement, "This is not a right granted by the Constitution," as meaning that the right to bear arms existed before the Constitution and therefore exists independently of the Constitution. Still others interpret the full ruling to mean that the Second Amendment does not protect an individual's right to bear arms.
United States v. Miller
In the twentieth century, the Supreme Court first tackled the Second Amendment in a case involving a violation of the National Firearms Act of 1934, a federal law designed to make it more difficult to acquire especially dangerous "gangster-type" weapons. Jack Miller and Frank Layton were arrested by federal agents in 1938 and charged with traveling with an unregistered, gangster-style, double-barreled, sawed-off, twelve-gauge shotgun. A federal district court judge dismissed the case on the grounds that the Firearms Act violated the Second Amendment. The U.S. government appealed to the Supreme Court in United States v. Miller (307 U.S. 174, 1939).
INTENT OF THE WEAPON. The federal government argued that if the Second Amendment protected an individual's right to keep and bear arms, the only arms protected were those suitable to military purposes, not weapons like sawed-off shotguns that "constitute the arsenal of the 'public enemy' and the 'gangster'"—weapons that the National Firearms Act was intended to regulate.
The Supreme Court reversed the lower court's ruling and upheld the federal law. Because Miller had fled and did not appear to plead his case, the Supreme Court heard only the government's side of the issue and did not hear a strong argument for permitting a citizen to maintain such a weapon. The Supreme Court denied Miller the right to carry a sawed-off shotgun, noting that no evidence had been presented as to the usefulness "at this time" of a sawed-off shotgun for military purposes:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
Referring back to the debates of the Constitutional Convention and discussion of the militia, the Court observed that the debates showed
… plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense, "A body of citizens enrolled for military discipline." … Ordinarily when citizens enrolled for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Miller remains the major Supreme Court ruling and precedent concerning gun control. But what did the Supreme Court mean in Miller? The ruling has been used to support both sides of the gun rights debate. Was the court protecting an individual's right to bear arms or not? Do those arms have to have some military usefulness? The sawed-off shotgun was used in Vietnam as an effective military weapon. Does this mean that it can be shown to contribute to the common defense in modern times? And what of the machine gun, which is now forbidden under federal law but has also been used in war? Could that weapon, too, be considered as potentially helpful to the common defense? Should Americans be allowed to bear machine guns? Gun control advocates say the Court's decision in Miller allows the reasonable regulation of firearms and that the Second Amendment only applies to persons on active duty in official state militias.
USING MILLER AS PRECEDENT. The case of United States v. Tot (131 F.2d 261, 1942) originated in the arrest of Frank Tot for stealing cigarettes from an interstate shipment. Tot had previously been convicted of a crime of violence. At the time of his arrest, a .32-caliber Colt automatic pistol was seized in a search of his home. The Third Circuit Court of Appeals did not accept Tot's argument that the Second Amendment prohibited the state of New Jersey from denying him the right to own a gun even if he was a convicted felon. Citing Miller as a precedent, the court reasoned,
One would hardly argue seriously that a limitation upon the privilege of possessing weapons was unconstitutional when applied to a mental patient of the maniac type. The same would be true if the possessor were a child of immature years…. Congress has prohibited the receipt of weapons from interstate transaction by persons who have previously, by due process of law, been shown to be aggressors against society. Such a classification is entirely reasonable and does not infringe upon the presentation of the well regulated militia protected by the Second Amendment.
The Third Circuit Court of Appeals noted that the Second 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."
In 1942 the First Circuit Court of Appeals cited Miller in the case of Cases v. United States (131 F.2d 916, 1942) to uphold the Federal Firearms Act of 1938. Jose Cases Velazquez had been convicted of a violent crime and, under the federal law, could not own a gun. The circuit court observed:
The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms, but it does not follow from this as a necessary consequence that is bad…. The right to keep and bear arms is not a right conferred upon the people by the federal constitution.
These and other cases went beyond Miller to counter the argument that the Second Amendment extends firearms rights to individuals independent of the need to ensure a well-regulated militia.
Miller is also cited in the Fifth Circuit Court of Appeals decision for U.S. v. Emerson (270 F.3d 203, 2001). In this case, Timothy Emerson was charged with violating the Lautenberg Amendment to the 1994 Gun Act (18 U.S.C.ß 922(g)(8)), which prohibits possession of a firearm by persons under a domestic violence restraining order. Emerson's estranged wife had obtained such an order from a judge in 1998, after Emerson had acknowledged his mental instability. Emerson was subsequently indicted for illegally possessing two 9mm pistols, a semi-automatic SKS assault rifle with bayonet, a semiautomatic M-14 assault rifle, and an M1 carbine. He was tried in district court, where Emerson's lawyers argued that his case should be dismissed on the grounds that the federal ban on gun possession by those under a protective order for domestic violence violated the Second Amendment. The district judge sided with Emerson and dismissed the charges, reasoning that the provision of the 1994 law violates the Second Amendment because it allows a state court divorce proceeding to deprive a citizen of his right to keep and bear arms, even when that citizen has not been found guilty of anything. However, U.S. Justice Department prosecutors then appealed the trial court's decision, stating that it directly conflicted with long-established legal precedent laid down by the U.S. Supreme Court in Miller.
When the Fifth Circuit Court of Appeals reversed the lower court decision and upheld the domestic violence gun ban against Emerson, gun control advocates viewed the decision as a victory for domestic violence victims and a safeguard for women across the country. Gun rights advocates also found something to praise in the decision, as it seemed to provide support for the argument that individuals are guaranteed the right under the U.S. Constitution to bear arms independent of the provision of a well-regulated militia. The decision of the court stated:
We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position.
An interesting sidelight to Emerson was the conflict of views of the Second Amendment that emerged from the U.S. Department of Justice (DOJ). In arguing the government's case in Emerson, the DOJ contended that it is "well settled" that the Second Amendment creates a right held by the states and does not protect an individual's right to bear arms. When he filed his brief on appeal, Emerson attached a copy of a letter from Attorney General John Ashcroft (head of the DOJ) to the National Rifle Association dated May 17, 2001. The letter stated in part: "[L]et me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."
Emerson was quickly seized upon by gun rights advocates. In 2000, California attorney Gary Gorski filed a lawsuit, Silveira v. Lockyer (312F.3d 1052), in the Eastern District Court. The case sought to overturn California's ban on semiautomatic rifles on the basis of the individual right of a person to keep and bear arms under the Second Amendment. The Silveira lawsuit lost in the Eastern District court and was appealed to the Ninth Circuit Court in 2002, which upheld the lower court's decision. The Ninth Circuit Court's written decision strongly rejected the reasoning behind the Emerson decision, stating:
The debates of the founding era demonstrate that the second of the first 10 amendments to the Constitution was included in order to preserve the efficacy of the state militias for the people's defense—not to ensure an individual right to possess weapons.
Silveira has been viewed by some observers as a significant setback for gun rights advocates.
Gun Possession by a Convicted Felon
In United States v. Synnes (438 F.2d 764, 1971), another case involving the possession of a firearm by a convicted felon, the Eighth Circuit Court of Appeals said this about the Second Amendment:
We see no conflict between [a law prohibiting the possession of guns by convicted criminals] and the Second Amendment since there is no showing that prohibiting possession of firearms by felons obstructs the maintenance of a "well regulated militia."
Most supporters of handgun possession have accepted the right of federal and state governments to deny weapons to former felons, drug abusers, the mentally incompetent, and other potentially dangerous individuals.
Possession of a Machine Gun
The next round of court challenges came after passage of the Gun Control Act of 1968. Defendant Francis J. Warin appealed his conviction for possessing an unlicensed submachine gun (United States v. Warin [530 F.2d 103, 1976]). Warin tried to convince the Sixth Circuit Court of Appeals that a federal law prohibiting the possession of the gun violated his Second Amendment rights. The court upheld Warin's conviction, stating,
It would unduly extend this opinion to attempt to deal with every argument made by defendant and amicus curiae [a "friend of the court" that is not a party to the litigation but gives its opinions to the court] Second Amendment Foundation, all of which are based on the erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of the States.
Enhanced Penalties for "Use" of Firearms in a Drug Crime
The Supreme Court ruled in Smith v. United States (508 U.S. 223, 1993) that the federal law authorizing stiffer penalties if the defendant "during and in relation to … [a] drug trafficking crime uses … a firearm" applies not only to the use of firearms as weapons but also to firearms used as commerce, such as in a trade. John Angus Smith and a companion went from Tennessee to Florida to buy cocaine, which they planned to resell for profit. During a drug transaction, an undercover agent posing as a pawnshop dealer examined Smith's MAC-10, a small, compact, lightweight firearm that can be equipped with a silencer and is popular among criminals. Smith told the agent he could have the gun in exchange for two ounces of cocaine. The officer said he would try to get the drugs and return in an hour. In the meantime, Smith fled, and after a high-speed chase, officers apprehended him.
A grand jury was convened to decide whether there was enough evidence to justify formal charges and a trial. Smith was charged with drug-trafficking crimes and with knowingly using the MAC-10 in connection with a drug-trafficking crime, among other offenses. Under 18 U.S.C. Sec. 924(c)(1)k, a defendant who uses a firearm in such a way must be sentenced to five years' imprisonment, and if the "firearm is a machine gun or is equipped with a firearm silencer," as it was in this case, the sentence is thirty years. Smith was convicted on all counts.
On appeal, Smith argued that the law applied only if the firearm was used as a weapon. The Eleventh Circuit Court disagreed, ruling that the federal legislation did not require that the firearm be used as a weapon—"any use of ëthe weapon to facilitate in any manner the commission of the offense' suffices."
In a similar case, the Court of Appeals for the District of Columbia Circuit had arrived at the same conclusion (United States v. Harris, 959 F.2d 246, 1993). On the other hand, the Court of Appeals for the Ninth Circuit had held that trading a gun in a drug-related transaction was not "using" it within the meaning of the statute (United States v. Phelps, 877 F.2d 28, 1989). To resolve the conflict among the different circuit courts, the Supreme Court heard Smith's appeal.
In a 6–3 decision, the Court ruled in Smith v. United States that the "exchange of a gun for narcotics constitutes 'use' of a firearm 'during and in relation to … [a] drug trafficking crime' within the meaning" of the federal statute. Delivering the opinion of the majority, Justice Sandra Day O'Connor wrote that "when a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning." Definitions for the word "use" from various dictionaries and Black's Law Dictionary showed the word to mean "convert to one's service; to employ; to carry out a purpose or action by means of." In trying to exchange his MAC-10 for drugs, the defendant "used" or employed the gun as an item of trade to obtain drugs. The words "as a weapon" do not appear in the statute. O'Connor reasoned that if Congress had wanted the narrow interpretation of "use" as a weapon, it would have worded the statute so.
Justice Antonin Scalia dissented from the majority's definition of the word "use." Defining the normal usage of a gun as discharging, brandishing, or using as a weapon, he observed,
Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used. It would, indeed, be "both reasonable and normal to say that petitioner 'used' his MAC-10 in his drug trafficking offense by trading it for cocaine." … It would also be reasonable and normal to say that he "used" it to scratch his head. When one wishes to describe the action of employing the instrument of a firearm for such unusual purposes, "use" is assuredly a verb one could select. But that says nothing about whether the ordinary meaning of the phrase "uses a firearm" embraces such extraordinary employments. It is unquestionably not reasonable and normal, I think, to say simply "do not use firearms" when one means to prohibit selling or scratching with them.
New Interpretations of "Use"
In April 1995 the Supreme Court narrowed the definition of "use" that had been established in Smith. The single case before the Supreme Court considered the separate criminal misdeeds of Roland J. Bailey and Candisha Robinson (Bailey v. United States, 116 S.Ct. 501 ).
In 1988 Roland J. Bailey had been stopped in his car by Washington, D.C., police officers because he was missing a front license plate and an inspection sticker. When Bailey could not produce a driver's license, the officer searched Bailey's car and found ammunition and thirty grams of cocaine. Another officer found a loaded pistol and more than $3,200 in small bills in the trunk. At his trial, Bailey was convicted of possession of cocaine with intent to deliver and using or carrying a firearm in connection with a drug offense. He appealed to the Court of Appeals for the District of Columbia Circuit.
In June 1991 Larry Hale, an undercover police officer in the process of buying drugs, saw Candisha Robinson handing crack cocaine to another person. In the same room, the person who took the cocaine from Robinson sold the drug to the officer, who paid for it with $20 in marked money. Later, while executing a search warrant on Robinson's apartment, officers found a .22-caliber derringer, two rocks of crack cocaine, and the marked money. Robinson was found guilty of cocaine distribution, and, among other things, the use or carrying of a firearm during and in relation to a drug-trafficking offense. She appealed to the Court of Appeals for the District of Columbia Circuit.
On appeal, Bailey argued that there was no evidence that he had used the gun in connection with a drug offense (United States v. Bailey, 995 F. 2d 1113 [CADC 1993]). Robinson argued on appeal that during the drug sale to the officer, the gun was unloaded and in a locked trunk and was not used in the commission of or in relation to a drug-trafficking offense (United States v. Robinson, 997 F. 2d 884 [CADC 1993]).
The Court of Appeals rejected Bailey's claim of insufficient evidence and held that he could be convicted for "using" a firearm if the jury could reasonably infer that the gun assisted in the commission of a drug offense. In Robinson's case, the court reversed her conviction for "using or carrying," because the presence of an unloaded gun in a locked trunk in a bedroom closet was not evidence of actual use. Because the decisions were contradictory, the Court of Appeals consolidated the two cases and reheard them. A majority of the judges then found that there was sufficient evidence to establish that each defendant had used a firearm in relation to a drug trafficking offense. Bailey and Robinson then jointly appealed to the Supreme Court of the United States, which granted their petition in order to clarify the meaning of "use."
In December 1995 the Supreme Court unanimously held that to establish "use," the government must show that the defendant actively employed a firearm so as to make it an "operative factor in relation to the predicate offense." This definition includes hiding a gun in a shirt or pants, threatening to use a gun, or actually using the gun during the commission of a drug crime. The Court also found that Bailey's and Robinson's "use" convictions could not be supported because the evidence did not indicate that either defendant actively employed firearms during drug crimes.
In 1998 the Supreme Court put a much broader interpretation on the federal law, which mandates a five-year prison term for a person who "uses or carries" a gun "during and in relation to" a drug trafficking crime. The three defendants in this case carried guns in the trunks of their cars. The Court ruled that having a gun in a car from which a person is dealing drugs fits the meaning of "carries" for purposes of the sentencing statutes (United States v. Muscarello [118 S.Ct. 1911]).
Possession of a Firearm Near a School
The Gun-Free School Zones Act of 1990 [18 U.S.C. Sec. 921(a)(25, 26), (22(q)(1)] made it unlawful for any individual knowingly to possess a firearm in a school zone, defined as within one thousand feet of the school grounds, whether or not school was in session. Two federal appeals courts came to different conclusions about the constitutionality of the act.
THE LAW IS UNCONSTITUTIONAL. The U.S. Court of Appeals for the Fifth Circuit ruled that Congress had exceeded the power granted to it under the commerce clause of the U.S. Constitution when it enacted the Gun-Free School Zones Act (United States v. Lopez [2 F.3rd 1342, 1993]). The commerce clause gives Congress the power to regulate conduct that crosses state borders. According to the court, with few specific exceptions, "Federal laws proscribing firearm possession require the government to prove a connection to commerce." Congress had made no attempt to link the Gun-Free School Zones Act to commerce in the debates before the law was enacted and in the law itself. The appeals court asserted:
Both the management of education and the general control of simple firearms possession by ordinary citizens have traditionally been a state responsibility…. We are unwilling to … simply assume that the concededly intrastate conduct of mere possession by any person of any firearm substantially affects interstate commerce, or the regulation thereof, whenever it occurs, or even most of the time that it occurs, within 1000 feet of the grounds of any school whether or not then in session. If Congress can thus bar firearms possession because of such a nexus [connection] to the grounds of any public or private school, and can do so without supportive findings or legislative history, on the theory that education affects commerce, then it could also similarly ban lead pencils, "sneakers," Game Boys, or slide rules.
Following this reasoning, the appeals court found the Gun-Free School Zones Act unconstitutional.
THE LAW IS CONSTITUTIONAL. On the other hand, the U.S. Court of Appeals, Ninth Circuit, ruled that the commerce clause of the Constitution did, indeed, give Congress the power to pass such a law as the Gun-Free School Zones Act (United States v. Edwards [13 F.3d 291, 1993]). In 1991 Sacramento police officers and school officials approached Ray Harold Edwards II and four other males at Grant Union High School. The officers discovered a .22 rifle and a sawed-off bolt-action rifle in the trunk of Edwards' car. One of the charges against Edwards was violation of the Gun-Free School Zones Act.
Edwards appealed, claiming the law violated the Tenth Amendment because Congress did not have the authority under the commerce clause or any other delegated power to enact the Gun-Free School Zones Act. The Tenth Amendment says that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Disagreeing with United States v. Lopez, the court of appeals ruled that the Gun-Free School Zones Act
… does not expressly require the Government to establish a nexus between the possession of a firearm in a school zone and interstate commerce…. It is unneces sary for Congress to make express findings that a particular activity or class of activities affects interstate commerce in order to exercise its legislative authority pursuant to the commerce clause.
The judges used as a precedent a case upholding legislation making it illegal to possess an unregistered machine gun. In that case, the appeals court ruled that "violence created through the possession of firearms adversely affects the national economy, and consequently, it was reasonable for Congress to regulate the possession of firearms pursuant to the commerce clause."
THE SUPREME COURT RULES. In 1995 the Supreme Court struck down the Gun-Free Schools Zone Act on the grounds that Congress had overstepped its bounds because it had based the law on the commerce clause of the U.S. Constitution (United States v. Lopez [514 U.S. 549, 1995]). The commerce clause empowers Congress to regulate interstate commerce, but Congress had failed to connect gun-free school zones with commerce. Chief Justice William Rehnquist wrote that Congress had used the commerce clause as a general police power in a way that is generally retained by states. He also warned that the Gun-Free School Zones Act
… is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms…. If we were to accept the Government's arguments, we are hard pressed to [find] any activity by an individual that Congress is without power to regulate.
Congress responded in 1996 by approving a slightly revised version of the Gun-Free School Zones Act in PL 104-208 (in the form of amendments to the Department of Defense Appropriations Act, 1997). The amendments required prosecutors to prove an impact on interstate commerce as an element of the offense.
Is the Brady Law Unconstitutional?
Opponents of the Brady Handgun Violence Prevention Act of 1993 (PL 103-159) challenged its constitutionality soon after it had passed. Under the Brady Law, Congress had ordered local chief law enforcement officials nationwide to conduct background checks on prospective handgun purchasers who bought their guns through federally licensed dealers. Two sheriffs, Jay Printz of Ravalli County, Montana, and Richard Mack of Graham County, Arizona, appealed the verdicts from lower courts (which gave the two similar cases different rulings) to a U.S. Court of Appeals.
The two cases were consolidated for the purposes of the appeal. The sheriffs charged that Congress exceeded its powers under the Tenth Amendment of the U.S. Constitution, which defines the separate powers and relationship between the federal government and the sovereign powers of the individual states. They argued that the federal government had placed federal burdens on local police agencies with no federal compensation. Representing the federal government, Acting Solicitor General Walter Dellinger argued that the government had the right to require local agencies to carry out federal orders as long as those agencies were not forced to make policy. The case came before the Supreme Court in December 1996.
In June 1997 the Supreme Court struck down the Brady Law provisions that required local chief law enforcement officials to conduct background checks on prospective handgun purchasers and to accept the form on which that background check is based (Printz v. United States [117 S.Ct. 2365]). The Supreme Court declared that these provisions violated the Tenth Amendment to the U.S. Constitution. Justice Antonin Scalia wrote:
The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.
The Court unanimously upheld the Brady Law's five-day waiting period for handgun purchases, however, because the waiting period was directed at gun store owners and was not a federal mandate to state officials. Most chief law-enforcement officers continued to voluntarily conduct background checks until the National Instant Check System (NICS), instituted by the Brady Law, became effective in November 1998.
Selling Guns without a License
The Firearms Owners' Protection Act (PL 99-308, 1986) prohibits any person other than a licensed dealer from dealing in firearms. Anyone who "willfully violates" this law is subject to a fine and up to five years in prison. Sillasse Bryan bought several pistols in Ohio, using "straw purchasers" (legally qualified buyers who purchase for someone not legally qualified). After filing the serial numbers off the guns, he resold the guns in New York City, in areas known for drug dealing. At his trial the defense argued that Bryan could be convicted only if he knew of the specific federal licensing requirement of the law. His argument failed and Bryan was convicted. In 1998 the Supreme Court interpreted "willfully violates" to mean that the defendant only needs to know that he was selling guns illegally. Bryan's conviction was upheld (United States v. Bryan [118 S.Ct. 1939]).
Federal Guns-for-Felons Program
Courts cannot restore firearm privileges to anyone convicted of a felony, according to a 2002 U.S. Supreme Court ruling (United States v. Thomas Lamar Bean [253 F.3d 234]). In this case, Thomas Lamar Bean, a registered gun dealer in Texas, drove to Mexico for dinner with associates one night after a gun show in 1998. Although he had asked one of his associates to remove the firearms and ammunition from his car, the Mexican police found one box of ammunition inside. He was convicted of importing ammunition to Mexico, which is a felony. As a result of his conviction, he was subsequently barred from "possessing, receiving or distributing firearms or ammunition" in the United States. However, under Title 18, Section 925 (c), Bean was allowed to petition the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) for reinstatement of his gun privileges, known as the guns-for-felons program. The ATF turned him down, stating that they had no money to process his application after the 1992 Appropriations Act passed by Congress had barred the ATF from spending money on such activities. Bean filed suit in U.S. District Court in Texas, which decided to lift his prohibition. The Fifth Circuit Court of Appeals affirmed that decision.
The U.S. Supreme Court, however, rejected Bean's contention that ATF's failure to act amounted to a de facto denial of his application. In the decision, Justice Clarence Thomas stated that "mere inaction by ATF does not invest a district court with independent jurisdiction to act on an application." The Court also ruled unanimously that the federal "relief from disability" guns-for-felons program could not be revived by federal judges. They did not comment on Bean's claim that he had a Second Amendment right to get his guns back.