Category Archives: Second Amendment


United States v. Miller: Individual Second Amendment Right (05/15/1939)

United States v. Miller

Does the Second Amendment protect an individual’s right to keep and bear arms?

Argued: 03/30/1939

Decision Date: 05/15/1939

Decision Record: 8-0; no

Justices Majority: Charles Hughes, James McReynolds, Pierce Butler, Harlan Stone, Owen Roberts, Hugo Black, Stanley Reed, Felix Frankfurter

Justices Dissenting: None

Justice William Douglas did not partake in this decision.

Effect of the Decision

This case holds that the Second Amendment does not ensure the protection of every individual’s right to bear a sawed-off double barrel shotgun.

In Favor

Attorney Gordan Dean argued in representation of the United States.


Jack Miller and Frank Layton were the appellee.


The decision for the United States was a unanimous one. The opinion was written by Justice James McReynolds. He wrote, “Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o’clock in the forenoon, armed, equipped, and accoutred, as follows: . . . every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good powder, and four pounds of lead, including twenty blind cartridges, and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents.

Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seems to afford any material support for the challenged ruling of the court below.”

My Opinion:

In this case, I agree with the court’s decision. The Second Amendment gives you the right to bear arms, however, the ownership of a sawed-off double barrel shotgun without registration does not help maintain an effective state militia, which is one of the purposes of the Second Amendment. If the possession of such a weapon does not meet the purpose of the Second Amendment, his/her right has not been violated, especially since the shotgun has not even been registered. The Second Amendment does not necessarily mean that everyone can walk around in public carrying a gun or a weapon, nevertheless an unregistered one.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


District of Columbia v. Heller: Restrictions on Right to Bear Arms (06/26/2008)

District of Columbia v. Heller

Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms kept in the home to be kept nonfunctional violate the Second Amendment?

Argued: 03/18/2008

Decision Date: 06/26/2008

Decision Record: 5-4; yes

Justices Majority: John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito

Justices Dissenting: John Paul Stevens, David Souter, Ruther Bader Ginsburg, Stephen Breyer

Effect of the Decision

This case holds that there cannot be laws placed that restrict the liscensing of handguns or that require for guns to be kept disfunctional because it violates the Second Amendment.

In Favor

In the representation of the side of the District of Columbia, attorney Walter E. Delinger, III said, “The Second Amendment was a direct response to concern over Article I, Section 8 of the Constitution, which gave the new national Congress the surprising, perhaps even the shocking, power to organize, arm, and presumably disarm the State militias.

What is at issue this morning is the scope and nature of the individual right protected by the resulting amendment and the first text to consider is the phrase protecting a right to keep and bear arms.

In the debates over the Second Amendment, every person who used the phrase “bear arms” used it to refer to the use of arms in connection with militia service and when Madison introduced the amendment in the first Congress, he exactly equated the phrase “bearing arms” with, quote, “rendering military service”.

We know this from the inclusion in his draft of a clause exempting those with religious scruples.

His clause says

“The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. “

And even if the language of keeping and bearing arms were ambiguous, the amendment’s first clause confirms that the right is militia-related.”


Then in opposition, representing Heller, attorney Paul D. Clement claimed, “The Second Amendment to the Constitution, as its text indicates, guarantees an individual right that does not depend on eligibility for or service in the militia.

We would take the position that the kind of plastic guns or guns that are specifically designed to evade metal detectors that are prohibited by Federal law are not “arms” within the meaning of the Second Amendment and are not protected at all.

And that would be the way we would say that you should analyze that provision of Federal law, as those are not even arms within the provisions of the Second Amendment.

I think to make the same argument about machine guns would be a much more difficult argument, to say the least, given that they are the standard-issue weapon for today’s armed forces and the State-organized militia.”


The majority opinion was written by Justice Antonin Scalia. He wrote, “We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

Then in dissent, Justice John Paul Stevens said, “I do not know whether today’s decision will increase the labor of federal judges to the “breaking point” envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries. The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.”

Also in dissent, Justice Stephen Breyer wrote, “The majority ignores a more important question: Given the purposes for which the Framers enacted the Second Amendment, how should it be applied to modern-day circumstances that they could not have anticipated? Assume, for argument’s sake, that the Framers did intend the Amendment to offer a degree of self-defense protection. Does that mean that the Framers also intended to guarantee a right to possess a loaded gun near swimming pools, parks, and playgrounds? That they would not have cared about the children who might pick up a loaded gun on their parents’ bedside table? That they (who certainly showed concern for the risk of fire) would have lacked concern for the risk of accidental deaths or suicides that readily accessible loaded handguns in urban areas might bring? Unless we believe that they intended future generations to ignore such matters, answering questions such as the questions in this case requires judgment—judicial judgment exercised within a framework for constitutional analysis that guides that judgment and which makes its exercise transparent. One cannot answer those questions by combining inconclusive historical research with judicial ipse dixit. The argument about method, however, is by far the less important argument surrounding today’s decision. Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas. VI For these reasons, I conclude that the District’s measure is a proportionate, not a disproportionate, response to the compelling concerns that led the District to adopt it. And, for these reasons as well as the independently sufficient reasons set forth by JUSTICE STEVENS, I would find the District’s measure consistent with the Second Amendment’s demands.”

My Opinion:

In this case, I agree with the majority’s decision. The Second Amendment clearly states that all citizens can enjoy the right to bear arms. Enforcing a law that requires for all handguns to be left at home and kept disfunctional goes against that, and is therefore a violation. If a person has to keep their guns disfunctional, then they can’t even enjoy their constitutional right to the Second Amendment. Any law that interferes with the constitutional right to bear arms is a violation of the citizens’ rights.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Voisine v. United States: Reckless Domestic Violence (06/27/16)

Voisine v. United States

Should a reckless domestic assault qualify as a “misdemeanor crime of domestic violence,” taking away their Second Amendment rights as if they have committed a felony?

See 18 U.S.C. § 922(g)(9) for more.  

Decision Date: June 27, 2016

Decision Record: 6-2; yes

Justices in Favor: Elena Kagan (LC*), Samuel Alito (R), Ruth Bader Ginsburg (L), Anthony Kennedy (LC), John Roberts (RC), and Stephen Breyer (L)

Justices Dissenting: Clarence Thomas (R) and Sonia Sotomayor (L)

Effect of the Decision

This case has the effect of possibly unjustly eroding a person’s Second Amendment constitutional right to firearm ownership.

In Favor

The argument in favor, in this case, made by attorney Ilana Eisenstein, claims, “The argument is that this Court should effectuate Congress’s purpose by giving Section 922(g)(9) the meaning that Congress intended, which is to cover generally applicable assault and battery statutes regardless of whether, on a rare instance, they may wrongly end up covering an individual who was perhaps recklessly driving and injured a family member.”


In the opposition, Mr. Voisine, who was represented by attorney Virginia Villa, stated, “The same state of mind should attach to each (bodily injury or offensive touching), and that is why intentionality is the state of mind that under the common law must attach to each. Because intentional battery covered both the offensive physical contact as well as the physical injury, whereas recklessness covers only bodily injury.”


Justice Clarence Thomas, finally breaking his 10-year silence, with regard to reckless domestic assault brought up an argument in favor of Mr. Voisine. He said in his dissent, “The ‘reckless’ standard could result in people forever being denied their constitutional right to firearm for ‘a single conviction for an infraction punishable only by a fine.’”

Then in the opinion paper, he wrote, “The majority decides that a person who acts recklessly has used physical force against another. But that fails to appreciate the distinction between intentional and reckless conduct. A ‘use’ of physical force requires the intent to cause harm.” Justice Thomas, along with Justice Sonia Sotomayor, were the only two justices that sided with Mr. Voisine.

On the other hand, the majority side of the decision, the side of the United States, wrote on the opinion slip, “Several decades earlier, the Model Penal Code had taken the position that a “mens rea” of recklessness should generally suffice to establish criminal liability, including for assault … So in linking §922(g)(9) to those laws, Congress must have known it was sweeping in some persons who had engaged in reckless conduct (without intent).”

Then it proceeded to say, “That language, naturally read, encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm.” The majority of the decision included, Justices Kagan, Alito, Ginsburg, Kennedy, Roberts, and Breyer.

My Opinion:

First of all, it’s required that the Supreme Court Justices follow the constitution in making their decisions, however, the majority decision in this case would likely be found unconstitutional if challenged on those grounds. Second of all, § 922(g)(9) states that misdemeanor domestic violent acts are treated as a felony, and felons are already stripped of their constitutional right to own a gun, therefore instead of adding ambiguity to misdemeanor offenses, specific domestic violence cases should be made by felonies to retain clarity. Additionally, whereas misdemeanors are minor offenses that are not granted a jury trial, thus because domestic violence is only a misdemeanor, the person’s Second Amendment rights could be taken away without a jury trial, for something as unintentionally injuring his child in an accident while texting and driving. This should not be allowed as without intent it is not reckless domestic assault.  Thus in order to prevent people from unjustly losing their constitutional rights, the appropriate misdemeanor offenses should be re-classified as felonies.

The law requires the “use of physical force,” and a “use of physical force” requires the intent to cause harm. I agree with what Justice Thomas wrote in his opinion slip: “The majority overlooks the critical distinction between conduct that is intended to cause harm and conduct that is not intended to cause harm.”

For conduct to rise to the level of domestic violence against a family member, it requires intent. The majority’s interpretation of the law is too broad. The intention of the law was to be applied to domestic violence with intent. Consider that recklessly driving and harming a family member unintentionally, would have no relationship to the probability of committing an act of domestic violence or of using a firearm in an improper manner, because there was no intent to harm.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right