nraila.org
In Miller v. Texas, the defendant challenged a Texas statute on the bearing of pistols as violative of the Second, Fourth, and Fourteenth Amendments. The problem for Miller was that he failed to timely raise these defenses in the state trial and appellate courts, raising these issues for the first time in the U.S. Supreme Court. While the
court held that the Second and Fourth Amendment (prohibiting warrantless searches), of themselves, did not limit state action (as opposed to federal action), the court did not address the defendant's claim that these constitutional protections were made effective against state government action by the Fourteenth Amendment, because Miller did not raise these issues in a timely manner. The Court, thus, left open the possibility that these constitutional rights were made effective against state governments by the Fourteenth Amendment. Lastly, it should be noted that in this case, as in the other Supreme Court cases, the defendant was not a member of the Armed Forces, and yet the Supreme Court did not dismiss Miller's claim on that ground; thus, Miller, as a private citizen, did enjoy individual Second Amendment protection, even if he was not enrolled in the National Guard or Armed Forces.
guntruths.com
When the United States was formed, the Founding Fathers were
afraid of an overly powerful national government. For this
reason, they insisted a Bill of Rights be ratified to protect their
citizens' freedoms.
The Bill of Rights established where the new national
government may not tread. The right to keep and bear arms was
included in the Bill of Rights because it was considered to be a
personal and inalienable right.
Historically, the "militia" referred to in the Second Amendment
was drawn from the whole body of the people. It was dependent
on the individual right to keep and bear arms to even exist.
Every time the word "people" is used in the other amendments
in the Bill of Rights, it is clearly intended to refer to individual
Americans. This means each and every individual–one of the
"people"--has the right to keep and bear arms, just as he or she
is entitled to the other rights set forth in the Bill of Rights.
More from nraila.org
United States v. Cruikshank, a post-Civil War and post-emancipation case, arose out of the disarmament and murder of freed blacks in Louisiana (the "Colfax Massacre"). Klansmen were subsequently charged by the federal prosecutor with a conspiracy to prevent blacks from exercising their civil rights, including the right of
peaceful assembly and the right to keep and bear arms. The court recognized that the right to peacefully assemble and the right of the people to keep and bear arms were natural rights which even preexisted the Constitution.
The court stated, however, that the First and Second Amendment rights were protections against the federal government only, and did not restrict state government action. The court held that because these fundamental rights existed independently of the Constitution, and because the First and Second Amendments guaranteed only
that these rights shall not be infringed by the federal Congress, the federal government had no power to punish a violation of these rights by the Klansmen, who were private individuals. Although the Second Amendment protected a citizen from having his right to keep and bear arms violated by the federal government, the Second
Amendment did not protect a citizen from the acts of other private persons.
Presser v. Illinois involved an Illinois statute which did not prohibit the possession of arms, but merely prohibited "bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law . . . ." Presser was indicted for parading a private military unit of 400 armed men through the streets of Chicago without a license. The court concluded that the Illinois statute did not infringe the Second Amendment since the statute did not prohibit the keeping and bearing of arms but rather prohibited the forming of private military organizations and the performance of military exercises in town by groups of armed men without a license to do so. The court found that such prohibitions simply "do not infringe the right of the people to keep and bear arms."
The Supreme Court seemed to affirm the holding in Cruikshank that the Second Amendment protected individuals only against action by the federal government. However, in the very next paragraph, the court suggests that state governments cannot forbid individuals to keep and bear arms. After stating that "all citizens capable of bearing arms" constitute the "militia," the Court held that the "States cannot . . . prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government."
Robertson v. Baldwin did not involve a Second Amendment claim, but in discussing the 13th Amendment, the Court again recognized the Second Amendment as a "fundamental" individual right of citizens; which, like the other fundamental rights, is not absolute. "The law is perfectly well settled that the first 10 amendments to the
Constitution, commonly known as the 'Bill of Rights', were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from
the necessities of the case. . ."
In United States v. Verdugo-Urquirdez, a Fourth Amendment case, the Supreme Court interpreted the meaning of the term "the people" in the Bill of Rights. The court stated that the term "the people" in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth, and Ninth
Amendments. In other words, the term "the people" means at least all citizens and legal aliens in the United States. This case thus makes clear that the Second Amendment is an individual right that applies to individual law-abiding Americans.
Contrary to the assertion of the gun prohibitionists, the Second Amendment protects the same "people" as the other rights guaranteed in the Bill of Rights; namely you and me. This, of course, is entirely in keeping with the intent of the drafters of the Bill of Rights and also the Supreme Court's interpretation of the individual rights
guaranteed in the Bill of Rights. |
