Resources

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/92/542.html

http://www1.law.ucla.edu/~volokh/2amteach/sources.htm

http://www.billofrightsinstitute.org/sections.php?op=listarticles&secid=11

Activity

The Second Amendment states:

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

U.S. v. Cruikshank (1876) was the first case involving the Second Amendment to reach the Supreme Court. It involved a massacre in Colfax, Louisiana where an armed mob of whites killed over 100 African Americans. The ringleaders, members of the Louisiana Ku Klux Klan, had been indicted for 32 counts of conspiring to deny African Americans the right to assemble, vote, as well as “the 'right to keep and bear arms for a lawful purpose.’”

In Cruikshank, the Court acknowledged the right to keep and bear arms, and explained that the right was older than the Constitution. “The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”

However, the Court declined to force Louisiana to protect that right to keep and bear arms, because the Bill of Rights only served to limit the actions of the federal government and not the state government. Although the Fourteenth Amendment has been interpreted many times since its passage to apply parts of the Bill of Rights to actions of state governments, Cruikshank did not make this determination. In fact, the Second Amendment remains one of the few portions of the Bill of Rights that the Supreme Court has not applied (or “incorporated”) to state governments.

Questions

1. Why did the Court say that the right to bear arms is “not a right granted by the Constitution?”
   
2. Almost twenty years later in Miller v. Texas (1894) the Court confirmed that it had not incorporated the Second Amendment (applied it to the states through the Fourteenth Amendment.) As of 2004, the Second Amendment has not been incorporated against states. Why do you think the Court has incorporated other amendments but not the Second?
   
3. In deciding the constitutionality of a criminal search, the Supreme Court held in United States v. Verdugo-Urquirdez (1990 ) that “the people” referred to in the First, Second, Fourth and Ninth Amendment, as well as the Preamble of the Constitution, means all citizens and legal immigrants. What might this assertion mean for future interpretations of the Second Amendment and whether it protects an individual right to own firearms?

Answers

1. The Supreme Court recognized the right of the people to keep and bear arms. They concurred that the right predated the Constitution and the Bill of Rights. They ruled that the right to bear arms was not dependent on the Constitution for its existence.
   
2. Answers may vary. Some students may say that the Court has not heard very many firearms cases and therefore has not had a chance to incorporate the Second Amendment. Others may say that whenever possible the Court has preferred to allow states to retain some sovereignty, and their respective decisions regarding regulating firearms are not rightfully under the Supreme Court’s jurisdiction.
   
3. The view that “the people” refers to all individuals, rather than only members of a militia, supports the perspective that the Second Amendment protects individuals from government infringing on the right to keep and bear arms.