Firearm case law are numerous in United States history. While many deal with Second Amendment issues, many others deal with other issues of the constitution. The Second Amendment to the United States Constitution is part of the Bill of Rights. It states that:

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.

The interpreation of the Second Amendment has only been addressed by the Supreme Court on a relatively narrow scope, and seldom at that. However, the amendment has more commonly been addressed by lower courts and often with conflicting results. New interpretations of the original Second Amendment would especially begin to gain strength around 150 years after its writing, or around the 1940's. From the adoption of the Bill of Rights in 1791 until 1905, the United States courts strictly interpreted the Second Amendment as an individual right. In 1905 the Kansas Supreme Court in Salina v. Blaksley [1] made the first collective right interpretation. This trend would continue throughout much of the latter half of the 20th century, until recent, more thorough scholarly analysis of the context of the Second Amendment has begun to reverse this trend, and bring its interpretation more in line with the time of its conception ([2],[3], [4]). However, there remains much conflict as to its interpretaion within the courts, largely because the Supreme Court has always, and continutes to, refuse hearing a case where the central issue is interpreting individual vs. collective rights within the context of the Second Amendment and Bill of Rights.

Supreme Court cases

• United States v. Miller (1939) [5] - The only Supreme Court case which was directly related to the issues of the Second Amendment. The court stated in part:

"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... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show 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.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

• United States v. Lewis (1980) [6] - Ruling that Congress may prohibit felons from possessing firearms:

"This Court has recognized repeatedly that a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm."

• Dred Scott v. Sandford (1857) [7] - The court ruled that Mr. Scott did not enjoy the protection of the Bill of Rights because of his racial background. However, in its ruling, it implies that all free men do have the right to bear arms by indicating what would happen if he was indeed afforded full protection of the Bill of Rights:

"It would give to persons of the negro race, ... the right to enter every other State whenever they pleased, ... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

Circuit Court cases relating directly to the Second Amendment

The Second Amendment currently applies to individual rights in certain State jurisdictions, while not in others.

Fifth Circuit Court of Appeals

• United States v. Emerson (2001) [8] - Fifth Circuit Court of Appeals ruling that the Second Amendment does apply to individual rights, not to collective rights, to bear arms. The court partly stated:

• • "There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words 'the people' have a different connotation within the Second Amendment than when employed elsewhere in the Constitution."

• • We hold . . . that it protects the rights of individuals, including those not . . . actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms . . . that are suitable as personal, individual weapons."

Ninth Circuit Court of Appeals

• Silveira v. Lockyer (2002) [9] - Ninth Circuit Court of Appeals ruling that the Second Amendment does not apply to individual rights:

"Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision."

Tenth Circuit Court of Appeals

• United States v. Haney (2001) [10] - Tenth Circuit Court of Appeals ruling that the Second Amendment only applies to a well regulated militia, not to individuals. In this case, Mr. Haney constructed two machine guns and voluntarily turned himself into the police and allowed a search of his premises in order to challenge the machine gun ban 922(o) on Second Amendment constitutional grounds. However, his circuit court ruled:

"we hold that a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia. This is simply a straightforward reading of the text of the Second Amendment."

• United States v. Baer (2000) [11] - Tenth Circuit Court of Appeals rejected a "time-worn" Second Amendment challenge to the federal felon-in-possession law, noting that:

"the circuits have consistently upheld the constitutionality of federal weapons regulations like [this one] absent evidence that they in any way affect the maintenance of a well regulated militia."

• United States v. Oakes (1977) [12] - Tenth Circuit Court of Appeals court ruled that:

"we rejected a Second Amendment challenge to the federal law criminalizing possession of an unregistered machinegun, 26 U.S.C. § 5861(d). We found no evidence that the firearm in question was connected with a militia, even though the defendant was nominally a member of the Kansas militia and the "Posse Comitatus," a militia-type organization registered with the state..."

State Supreme Court rulings

• Salina v. Blaksley (1905) [13] - Kansas Supreme Court with very little to no historical context study, made the first ruling in U.S. history to re-interpret the Second Amendment. It ruled that the Bill of Rights provisions only applied to members of an organized militia or members of the military. Its final line concludes:

"The defendant was not a member of an organized militia, nor of any other military organization provided for by law, and was therefore not within the provision of the Bill of Rights, and was not protected by its terms."

Court rulings relating to the 1986 Gun Owners Protection Act

• Farmer v. Higgins (1990) [14] - Eleventh Circuit Court of Appeals ruling that the ATF does not need to register new machineguns for private ownership under the exception of 18 USC 922(o)(A)(1).

• United States v. Warner (1993) [15] - Tenth Circuit Court of Appeals ruling regarding Mr. Warner, who was caught in Utah with a machine gun and convicted on 922(o), possession of a machine gun. Mr. Warner appealed on the basis that the Utah constitution allows its citizens to bear arms, and that therefore he is exempt based on 922(o)(2)(A), "under authority of the State." However, the court over ruled this, citing the Farmer case saying that machine guns were not meant to be in private hands, and that although the Utah law gives permission to own automatic firearms, it did not grant him authority.

• United States v. Rock River Armory (1991) [16] - United States District Court ruling that one cannot be prosecuted for 1934 National Firearms Act violations for machineguns prodcued after 1986:

"...since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional."

Firearm laws challenged on the Commerce Clause

• United States v. Lopez (1995) [17] - The first modern Supreme Court case to set limit on Congress' power under the Commerce Clause.

• United States v. Stewart (2005) [18] - A case on the Supreme Court docket regarding the legality of homemade machine guns. The Ninth Circuit Court of Appeals has already ruled that the Federal government does not have power under the commerce clause to regular possession of machineguns.

Other government statements on the matter

• United States Department of Justice provided one of the more thorough historical government analysis of the Second Amendment. In a 2004 report [19], the DOJ states that it interprets the Second Amendment to explicitly apply to individual rights, not collective rights. Their conclusion read:

"For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views."

• United States Senate subcommittee on the Constitution, chaired by Orrin G. Hatch, submitted a report in 1982 [20] with a definitive conclusion that the Second Amendment was written with the intent of individual rights:

"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."

External links and references

• Arms and the law - A web site with review and analysis of firearm case law