Early Second Amendment Jurisprudence

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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.

For most of its history, the Second Amendment was not substantively addressed by the Supreme Court. Few nineteenth and early twentieth century cases implicated the Second Amendment directly, and thus the small number of references in early cases were glancing and largely unilluminating as to the nature and scope of the right protected by the Amendment.

In the 1820 case Houston v. Moore,1 the Court addressed the constitutionality of a state statute providing for state court-martial punishment of militia members called into the service of the United States who refused deployment.2 The case turned not on the Second Amendment but rather on the nature of federal and state authority over the militia, with the Court concluding that the state retained concurrent jurisdiction, at least where not withdrawn by Congress, to punish militia members in such circumstances.3 In a dissenting opinion, Justice Joseph Story agreed that “a State might organize, arm, and discipline its own militia in the absence of, or subordinate to, the regulations of Congress.” Justice Story explained that “[the Second Amendment] may not, perhaps, be thought to have any important bearing on this point. If it have, it comfirms and illustrates, rather than impugns the reasoning already suggested.” 4 Although Justice Story did not provide further elaboration of how the Second Amendment might “confirm[ ] and illustrate[ ]” the proposition that a state retains concurrent, subordinate authority over the militia, it seems he may have been suggesting that the Amendment’s reference to the importance of a “well regulated militia” supported such authority.

Another passing reference to the Second Amendment in a pre-Civil War case came in the infamous and now-superseded Dred Scott v. Sandford5 decision. In holding that Black Americans were not citizens of the United States, the majority opinion in Dred Scott listed among the implications of an alternative conclusion that citizenship “would give them the full liberty of speech in public and in private . . . ; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” 6

Following the Civil War, the Court issued several opinions that more squarely implicated the Second Amendment and established for a time that the Amendment was a bar only to federal government action.7 In United States v. Cruikshank,8 the Court vacated the convictions of a group of men under a federal statute proscribing conspiracies to deprive citizens of rights “granted or secured . . . by the constitution or laws of the United States,” among other things.9 The indictment averred, in relevant part, that the defendants intended to prevent two Black men from exercising their right “of ‘bearing arms for a lawful purpose.’” 10 The Court rejected the proposition that this could be a valid basis for a violation of the statute, as “[t]his is not a right granted by the Constitution.” 11 Rather, according to the Court, the Second Amendment “means no more than that it shall not be infringed by Congress,” i.e., it “has no other effect than to restrict the powers of the national government,” and thus the actions of private “fellow-citizens” could not deprive the victims of a right covered by the Second Amendment.12 In the 1886 case Presser v. Illinois,13 the Supreme Court addressed a Second Amendment challenge to Illinois laws prohibiting “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” 14 The Court held that these provisions did not infringe the right of the people to keep and bear arms, as the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state.” 15

Given scant guidance from the Supreme Court, there was no definitive resolution in the twentieth century of what the right protected by the Second Amendment encompasses, and what role, if any, the textual reference to a “well regulated Militia” plays in addressing that question. The Second Amendment is divided into a first clause ( “A well regulated Militia, being necessary to the security of a free State” ) and a second clause ( “the right of the people to keep and bear Arms shall not be infringed” ). Courts, commentators, and Congress debated, over the course of decades, the meaning of, and relationship between, these two clauses, primarily with respect to whether (1) in light of the first clause, the Amendment protects a collective right tied to maintaining formal, organized militia units; or (2) in light of the second clause, the Amendment protects an individual right to possess a firearm unconnected with service in a militia.16

The Supreme Court’s most thorough consideration of the Second Amendment in the twentienth century came in United States v. Miller,17 a 1939 decision that seemed to tie the Second Amendment right “to keep and bear arms” to militia use. Miller involved a federal statute, the National Firearms Act, which required registration of short-barreled shotguns, among other things.18 After reciting the original provisions of the Constitution dealing with the militia, the Miller Court observed that “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.” 19 The significance of the militia, the Court continued, was that it was composed of “civilians primarily, soldiers on occasion.” 20 It was upon this force that the states could rely for defense and securing of the laws, on a force that “comprised all males physically capable of acting in concert for the common defense,” who, “when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 21

The Miller Court accordingly rejected the proposition that the federal restriction on short-barreled shotguns violated the Second Amendment, holding that absent evidence “tending to show that possession or use of” a short-barreled shotgun “at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, [the Court] cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 22 According to the Court, there was no indication that such weapons were “any part of the ordinary military equipment or that [their] use could contribute to the common defense.” 23 Years after Miller, the Court, in upholding a federal firearms statute prohibiting a convicted felon from possessing a firearm, characterized in a footnote Miller’s holding as being that “the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’” 24

The lack of clarity regarding the fundamental nature and scope of the Second Amendment following Miller fueled disagreement in the latter part of the twentieth century as to its application to an expanding set of federal, state, and local laws governing the private possession and sale of firearms. Writing in dissent in Adams v. Williams,25 a 1972 Fourth Amendment case involving an arrest for unlawful possession of a handgun without a permit, Justice William O. Douglas, joined by Justice Thurgood Marshall, underscored his view that the Second Amendment “was designed to keep alive the militia” and thus would not pose an obstacle even to a ban on the possession of pistols by “everyone except the police.” 26 In a concurring opinion in the later case Printz v. United States,27 involving the background check process for certain firearm purchases under the Brady Handgun Violence Prevention Act, Justice Clarence Thomas acknowledged that the Second Amendment was “somewhat overlooked” in the Court’s jurisprudence but had “engendered considerable academic, as well as public, debate.” 28 On the latter point, Justice Thomas alluded to “an impressive array of historical evidence” in scholarly commentary indicating that the Second Amendment protects a “personal right” to keep and bear arms and suggested that such an understanding supported an argument that the federal government’s regulation of at least the “purely intrastate sale or possession of firearms” would be unconstitutional.29

Lower courts and at least one congressional subcommittee weighed in as well. In the ninety-seventh Congress, the Senate Judiciary Committee’s Subcommittee on the Constitution issued a report concluding, among other things, that the Second Amendment protects “a right of the individual citizen to privately possess and carry in a peaceful manner firearms and similar arms.” 30 By the turn of the century, most U.S. Courts of Appeals to have considered the matter interpreted the Second Amendment as speaking of a collective right tied to military or militia use of firearms,31 though a divided panel of the U.S. Court of Appeals for the Fifth Circuit in 2001 reached a contrary conclusion.32 Then, in 2007, a split panel of the D.C. Circuit struck down District of Columbia restrictions on the private possession of handguns as inconsistent with the Second Amendment,33 and the Supreme Court granted review,34 leading to the Court’s first significant pronouncements on the Second Amendment in almost seventy years.

1: 18 U.S. 1 (1820).
2: Id. at 12.
3: Id. at 14.
4: Id. at 21 (Story, J., dissenting).
5: 60 U.S. 393 (1857), superseded by constitutional amendment, U.S. Const. amend. XIV.
6: Id. at 417; see also id. at 450 (stating, in reference to the applicability of the Bill of Rights to the territories, that Congress could not “deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.” ). In a later case, the Court in dicta suggested that “the right of the people to keep and bear arms . . . is not infringed by laws prohibiting the carrying of concealed weapons.” Robertson v. Baldwin, 165 U.S. 275, 281–82 (1897). As described infra, the Court has since squarely addressed a Second Amendment challenge to state laws restricting public carry, in New York State Rifle & Pistol Assocation v. Bruen, No. 20-843 (U.S. June 23, 2022).
7: This view of the Second Amendment has been invalidated by subsequent Supreme Court precedent. See Amdt2.5 Post-Heller Issues and Application of Second Amendment to States; see also Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights.
8: 92 U.S. 542 (1875).
9: Id. at 548.
10: Id. at 553.
11: Id.
12: Id.
13: 116 U.S. 252 (1886).
14: Id. at 264–65.
15: Id. at 265; see also Miller v. Texas, 153 U.S. 535, 538 (1894) (stating that it was “well settled” that the Second Amendment “operate[s] only upon the federal power, and [has] no reference whatever to proceedings in state courts” ).
16: A sampling of the diverse literature in which the same historical, linguistic, and case law background shows the basis for strikingly different conclusions includes: Staff of Subcomm. on the Constitution, S. Comm. on the Judiciary, 97th Congress, 2d Sess., The Right to Keep and Bear Arms (Comm. Print 1982); Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment (1984); Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol ed., 1993); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Symposium, Gun Control, 49 Law & Contemp. Probs. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995); William Van Alystyne, The Second Amendment and the Personal Right to Bear Arms, 43 Duke L.J. 1236 (1994); Symposium, Symposium on the Second Amendment: Fresh Looks, 76 Chi.-Kent L. Rev. 3 (2000).
17: 307 U.S. 174 (1939).
18: Id. at 175.
19: Id. at 178.
20: Id. at 179.
21: Id.
22: Id. at 178.
23: Id.
24: Lewis v. United States, 445 U.S. 55, 65 n.8 (1980).
25: 407 U.S. 143 (1972).
26: Id. at 150–51 (Douglas, J., dissenting).
27: 521 U.S. 898 (1997).
28: Id. at 938 n.2 (Thomas, J., concurring).
29: Id. at 939.
30: Staff of Subcomm. on the Constitution, S. Comm. on the Judiciary, 97th Congress, 2d Sess., The Right to Keep and Bear Arms 11 (Comm. Print 1982).
31: E.g., United States v. Nelson, 859 F.2d 1318, 1320 (8th Cir. 1988) (stating that cases after Cruikshank had “analyzed the [S]econd [A]mendment purely in terms of protecting state militias, rather than individual rights,” and the defendant had “made no arguments that the [challenged statute] would impair any state militia” ); Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999) ( “[T]he Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia.” ); United States v. Napier, 233 F.3d 394, 403 (6th Cir. 2000) (recognizing that, as of the date of decision, the lower federal courts had uniformly held that the Second Amendment protects a collective, rather than an individual, right).
32: United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001). One judge on the panel wrote a special concurrence refusing to join in the section of the opinion concluding that the Second Amendment protected an individual right, characterizing it as dicta and unnecessary to resolve the case. Id. at 272 (Parker, J., specially concurring).
33: Parker v. District of Columbia, 478 F.3d 370, 400–01 (D.C. Cir. 2007).
34: District of Columbia v. Heller, 552 U.S. 1035 (2007) (mem.) (order granting petition for writ of certiorari, as limited).