Trend of the United States Supreme Court Regarding the Right to Bear Arms

By Syreeta L. McNeal, CPA, JD

Second (2nd) Amendment of the United States Constitution 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.[1]

There are four recognized general considerations regarding the Second Amendment. The first view is that the Second Amendment is a limitation only on the federal government and not on states.[2] The second view is that the Second Amendment guarantees a collective right rather than an individual right.[3] The third view is that the Second Amendment guarantees an individual right rather than a collective right.[4] The final view is that the Second Amendment right is not applicable in absence of a reasonable relationship to a "well regulated militia."[5]

The buzz surrounding this week’s United States Supreme Court decision in District of Columbia v. Heller is relevant because it advocated, in a 5-4 decision, that the Second Amendment should be viewed under the third view which guarantees an individual right rather than a collective right as it applies to citizens keeping handguns and other firearms for private use in their homes.[6] This view should not be a surprise looking at the trend of rulings by the Supreme Court on the Second Amendment. To understand the significance of this decision, it is important to see how the United States Supreme Court has ruled over time on the Second Amendment and what view was the basis of the Court’s decision at that time.

Here is a summary of the cases rendered by the Supreme Court regarding the four general views:

Case Name (Year); View
U.S. v. Cruikshank (1875)[7]; 1
Presser v. People of State of Ill. (1886)[8]; 1
Miller v. State of Texas (1894)[9]; 1
U.S. v. Miller (1939)[10]; 4
Burton v. Sills (1969)[11]; 3
U.S. v. Bass (1971)[12]; 2
Lewis v. U.S. (1980)[13]; 3
District of Columbia v. Heller (2007)[14]; 3

Note:
· 1 = Second Amendment is limitation only on Federal Government and not on states
· 2 = Second Amendment guarantees a collective right rather than individual right
· 3 = Second Amendment guarantees an individual right rather than a collective right
· 4 = Second Amendment right is not applicable in absence of reasonable relationship to "well regulated militia."

As the chart indicates, from 1875 to 1894, the United States Supreme Court cases dealt with limiting the application of the Second Amendment on the federal government and not on the states. To understand this application, it is important to understand the makeup of the United States Supreme Court during this era. The United States just ended a civil war between the North and South in 1865. During the period of reconstruction, Radical Republicans gained control of both the Presidency and Congress and began to pass laws to expand legal rights for blacks with the passage of the Thirteenth (13th), Fourteenth (14th), and Fifteenth (15th) Amendments. Unlike these branches of the federal government, the Supreme Court had justices who were loyal to the Southern Confederacy. They hated the fact that the North won the Civil War and used their rulings to limit federal domination over the states. As a result, the cases passed from 1875 to 1894 reflect that trend.

In 1939, the Supreme Court appeared to have the case on the Second Amendment reflect the mood of the country being in the midst of World War II by limiting the right to bear arms to being used under a well regulated militia. From 1969 until the present, the trend has been for the Supreme Court to follow the third view allowing the Second Amendment to be an individual right, instead of a collective right except for one outlier in 1971. So, it should not be surprising that the latest Supreme Court case, District of Columbia v. Heller, guaranteed an individual right rather than a collective right as it applies to citizens keeping handguns and other firearms for private use in their homes.[15]

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[1] U.S. Const. amend. II
[2] Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[3] Id.
[4] Id.
[5] Id.
[6] District of Columbia v. Heller, ___ U.S. ____ (2007).
[7] U.S. v. Cruikshank, 92 U.S. 542 (1875). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[8] Presser v. People of State of Ill., 116 U.S. 252 (1886). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[9] Miller v. State of Texas, 153 U.S. 535 (1894). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[10] U.S. v. Miller, 307 U.S. 174 (1939). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[11] Burton v. Sills, 394 U.S. 812 (1969). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[12] U.S. v. Bass, 404 U.S. 336 (1971). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[13] Lewis v. U.S., 445 U.S. 55 (1980). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[14] District of Columbia v. Heller, ___ U.S. ____ (2007). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[15] District of Columbia v. Heller, ___ U.S. ____ (2007).