on the
2nd Amendment
DESPITE ANTI-GUNNERS' CLAIMS, THE SUPREME COURT
HAS UPHELD THE INDIVIDUAL'S RIGHT TO BEAR ARMS
SINCE THE DAY THE CONSTITUTION WAS SIGNED.
Firearms prohibitionists frequently claim that no
federal court has
ever said Americans have an individual constitutional
right to arms.
Perhaps such anit-zealots don't consider our U.S. Supreme Court to
be
'federal," and so remain ignorant of how it has viewed
the issue over
the past century and more.
In statements relating both directly and indirectly
to the Second
Amendment right to arms, the Supreme Court has handed
down a number of
decisions reaffirming the right of the individual
to bear arms.
*****In l857, the court decided that a slave could
not be a citizen
because if he were a citizen, he would be entitled
to enjoy all the
rights which American citizens enjoy by reason of their
citizenship,
rights which the "courts would be bound to maintain
and enforce,"
including the rights 'to hold public meetings upon
political affairs,
and to keep and carry arms wherever they went." (Scott
v Sandford, 60
US 69l, 705)
*****In l876, the Supreme Court ruled that the Constitution
did not
grant a right to arms, but that like the rights
to assembly and petition,
the rights to arms existed long before the
Constitution. "Neither is it in
any manner dependent upon that instrument for
its existence.
" (United States v Cruikshank, 92 US 542,
553) *****In l886, the
court said that, even setting aside the Second
Amendment, "the states
cannot prohibit the people from keeping and
bearing arms so as 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." (Presser v Illinois, 116 US 252)
*****In 1895, the Supreme Court ruled that individuals
have a right to
possess and use firearms for self-defense. (Beard v United States,
158
US 550)
*****In 1897, the court ruled that the right to arms
is an "ancient"
and "fundamental" right, a right which was "inherited
from our English
ancestors" and has existed "from time immemorial."
(Robertson v
Baldwin, 165 US 275)
*****In l914, the court ruled by implication that even
resident aliens
have the right to possess "weapons such as pistols
that may be supposed
to be needed occasionally for self-defense." (Patsone
v Pensylvania,
232 US 138)
*****In l921, the Supreme Court decided that a person
facing a deadly
attack may use lethal force in his self-defense, adding: "Detached
reflection cannot be demanded in the presence of an
uplifted knife."
(Brown v United States 256 US 335)
*****In l931, the Supreme court stated that "the great
and essential
right of the people are secured against legislative
as well as against
executive ambition. They are secured, not by laws paramount
to
prerogative, but by constitutions paramount to laws."
(Chief Justice
Hughes, quoting James Madison, in Near v Minnesota
283 US 697, 714)
THE MILITIA IS 'EXPECTED TO APPEAR BEARING ARMS....OF
THE KIND IN COMMON USE AT THE TIME."
*****In l876, l886. and l939, the Supreme Court ruled
that all
able-bodied males are members of the militia. (U.S.
v Chruitshank
(l876): Presser v Illinois (l886): U.S. v Miller, 307
US l74 (1939)
(Note: Federal militia law (10 USCS 311) says all able-bodied males
aged
17 to 45 are militia members, with those exempted listed
in 10 USCS
312. At least 22 states today already include females
equally with
males in the militia. The militia, says 10 USCS 311, consists of
the
organized militia (the National Guard) and the unorganized
or reserve
militia ( all the rest).
*****In l939, the Supreme court ruled that when called
for militia duty,
"these men were expected to appear bearing arms supplied
by themselves
and of the kind in common use at the time." (U.S. v
Miller, 307 US 174)
*****In l943, the court stated that a license fee levied
on the exercise
of a constitutional right is prior restraint, the
equivalent of is a
flat tax on the exercise of that right, and is
therefore
unconstitutional. (Murdock v Pensylvania, 319 US 105.
This was a First
Amendment case on freedoms of press and religion.)
*****In l968, the court ruled that a convicted felon
is exempt from
obeying gun registration laws, that "a proper claim
of the
constitutional privileged against self-incrimination
provides a full
defense to prosecutions either for failure to register
a firearm....or
for possession of an unregistered firearm." (Haynes
v US 390 US 85)
*****The Supreme Court has ruled at least seven times
in this
century--in l908, l932, 1936, 1963, l968, l976 and
l992 - that the first
eight amendments express fundamental personal rights
guaranteed by the
Constitution. (Twining v New Jersey, 211 US 78 (l908),
Powell v Alabama,
287 US 45 (1932), Grosian v American Press Co., 297
US 233 (1936),
Gideon v Wainwright, 372 US 335, (1963), Duncan v Louisiana, 391 US
166
(1968), Moore v East Cleveland, 431 US 494 (1976),
and Planned
Parenthood v Casey, No 9l-744 (l992); as well as in
a concurring opinion
in Griswold v Connecticut 381 US 479 (1965)
"AN OFFICIAL WHO 'UNDER...STATE LAW" DEPRIVES A
CITIZEN
OF A RIGHT MAY BE HELD PERSONALLY LIABLE."
*****In l980, the court ruled that a person enjoys
a fundamental right
to possess arms until his first conviction for a felony
offense. (Lewis
v U.S. 445 US 95)
*****In l990, the Supreme Court ruled that the term
"the people"
explicitly as used in the Second and other Amendments,
in the Preamble,
and elsewhere in the Constitution, meaning all the
individuals who make
up our national community. (U.S. v Verdugo-Urguidez,
No. 88-1353)
*****The court stated in l971 and l980 that a federal
official who
deprives a citizen of a right guaranteed by the U.S.
Constitution may be
held personally liable for damages (Bivens v Six Unknown
Named Agents of
the Federal Bureau of Narcotic, 403 US 388 (1971) and
Carlson v Green
446 US 14 (l980)
*****In l99l, the Supreme Court ruled that a state
official who, "under
color of state law," deprives a citizen of a right
guaranteed by the
federal Constitution may be held personally liable
for damages. (Hafer
v Melo, No. 90-68l)
*****In its first truly significant case, the Supreme
Court asserted its
power to overturn laws of Congress with the ruling
written by our great
Chief Justice John Marshall, which said simply: "All
laws repugnant to
the Constitution are null and void." (Marbury v Madison,
5 US 137 (l803)
*****The Court also definitively stated in the middle
of this century:
"The United States is entirely a creature of the
Constitution. Its
power and authority have no other source. It can only act in accordance
with all the limitations imposed by the Constitution." (Reid v
Covert,
354 US l (1957).