Second Amendment states/individuals

This view of the state constimtional provision is close to the viewpoint of most modern gun control advocates with regard to the Second Amendment Only the right of the state to form and operate a militia is protected the legislature is free to regulate or even prohibit the individual carrying of weapons. Certainly few people would assert that anyone has the right to carry a weapon while drunk. 

This short, rather cryptic decision has been interpreted in two different ways in the continuing debate over the meaning of the Second Amendment. Gun control advocates cite it as clearly stating that the Second Amendment must be interpreted in terms of the militia clause and does not give individuals the right to keep and bear any sort of firearm they want. 

The court went on to reiterate the common themes of the Second Amendment being a collective, not an individual, guarantee and that the common law has long recognized the right of the state to regulate the details of weapon ownership and use. 

A similar California case (Kasler v. Lockyer, Cal. 4th [2000]) also included a claim that the state s assault weapons law violated the Second Amendment. However, the Ninth Circuit Court of Appeals in upholding the law also ruled that 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. ... 

Currently only the Fifth Circuit (see U.S. v. Emerson) has upheld an individual right to keep and bear arms in the Second Amendment. If the Supreme Court should eventually resolve the conflict between the circuits in favor of this interpretation, a stricter test would presumably be applied to state gun laws. Of course, some regulations might still pass such scrutiny. 

Supreme Court overturns the conviction, declaring that this right is independent of the Second Amendment and that the latter cannot be used against individuals or states, only against the federal government. 

In U.S. V. Miller the Supreme Court rejects an appeal by stating that it had been given no evidence that a sawed-off shotgun was suitable for use in a militia, and because it is not, carrying it would not be protected by the Second Amendment. Because the decision also implied an individual right to bear military-type arms, it would be cited by both supporters and opponents of gun control. 

In United States v. Verdugo-Urquidez, the Supreme Court notes in passing that the people has a consistent meaning of individuals when used in the Constitution, including the Second Amendment. 

Sanford Levinson, McCormick Professor at the University of Texas. Although he remains generally politically liberal, Levinson s studies of the Second Amendment led him to the conclusion that it did protect an individual right to keep and bear arms and that it should be taken seriously by constitutional scholars. His 1989 paper The Embarrassing Second Amendment helped touch off a renewed debate about the amendment s meaning and the suggestion that it should be, like the First and Fourth Amendments, incorporated into the Fourteenth Amendment and applied to the states. 

Carmer, Clayton E. For the Defense of Themselves and the State The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms. West-port, Conn. Praeger Publishers, 1994. Explores the conflict between the original intent of the Second Amendment, well established by scholarship as conferring an individual right to keep and bear arms, and the judicial interpretation of the Supreme Court and most other courts that have pre-... 

Ehrman, Keith A., and Dennis A. Henigan. The Second Amendment in the Twentieth Century Have You Seen Your Militia Lately University of Dayton Law Review, vol. 15, 1989, pp. 5-58. Argues that the Second Amendment guarantees an individual right to keep and bear arms only to the extent it is necessary for the maintenance of an effective militia. Because the federally directed National Guard has replaced the old state militias, it is no longer necessary for private individuals to have firearms, and there is no obstacle to prohibiting them. 

Sprigman, Chris. This Is Not a Well-Regulated Militia. Open Forum, Winter 1994, n.p. Reviews Supreme Court cases and concludes that the Court has interpreted the Second Amendment as protecting state militias, not as an individual right to bear arms. Sprigman cites United States V. Miller (1939) and argues that the militia concept is probably not relevant to modern America. 

In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals rather, it merely recognizes the right of a state to arm its militia. This states rights or collective rights interpretation of the Second Amendment has been embraced by several of our sister circuits. The government commended the states rights view of the Second Amendment to the district court, urging that the Second Amendment does not apply to individual citizens. 

We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia. However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant s Second Amendment rights. Accordingly, we reverse the district court s dismissal of the indictment on Second Amendment grounds. 

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