FEDERAL CASES REGARDING THE SECOND AMENDMENT


                    U.S. Supreme Court Cases

     United States v. Cruikshank, 92 U.S. 542 (1876).  This was the
first case in which the Supreme Court had the opportunity to
interpret the Second Amendment.  The Court recognized that the
right of the people to keep and bear arms was a right which existed
prior to the Constitution when it stated that such a right "is not
a right granted by the Constitution . . . [n]either is it in any
manner dependent upon that instrument for its existence."  The
indictment in Cruikshank charged, inter alia, a conspiracy by
Klansmen to prevent blacks from exercising their civil rights,
including the bearing of arms for lawful purposes.  The Court held,
however, that because the right to keep and bear arms existed
independent of the Constitution, and the Second Amendment
guaranteed only that the right shall not be infringed by Congress,
the federal government had no power to punish a violation of the
right by a private individual; rather, citizens had "to look for
their protection against any violation by their fellow-citizens" of
their right to keep and bear arms to the police power of the state. 

     
     Presser v. Illinois, 116 U.S. 252 (1886).  Although the
Supreme Court affirmed the holding in Cruikshank that the Second
Amendment, standing alone, applied only to action by the federal
government, it nonetheless found the states without power to
infringe upon the right to keep and bear arms, holding that "the
States cannot, even laying the constitutional provision in question
out of view, prohibit the people from keeping and bearing arms, as
so 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, moreover, plainly suggested that the Second Amendment
applies to the states through the Fourteenth Amendment and thus
that a state cannot forbid individuals to keep and bear arms.  To
understand why, it is necessary to understand the statutory scheme
the Court had before it.
     The statute under which Presser was convicted did not forbid
individuals to keep and bear arms but rather forbade "bodies of men
to associate together as military organizations, or to drill or
parade with arms in cities and towns unless authorized by law . .
. ."  Thus, the Court concluded that the statute did not infringe
the right to keep and bear arms.
     The Court, however, went on to discuss the Privileges and
Immunities Clause of the Fourteenth Amendment, noting that "[i]t is
only the privileges and immunities of citizens of the United States
that the clause relied on was intended to protect."   As the Court
had already held that the substantive right to keep and bear arms
was not infringed by the Illinois statute since that statue did not
prohibit the keeping and bearing of arms but rather prohibited
military-like exercises by armed men, the Court concluded that it
did not need address the question of whether the state law violated
the Second Amendment as applied to the states by the Fourteenth
Amendment.

     Miller v. Texas, 153 U.S. 535 (1894).  In this case, the Court
confirmed that it had never addressed the issue of the Second
Amendment applying to the states through the Fourteenth Amendment. 
This case remains the last word on this subject by the Court.

     Miller challenged a Texas statute on the bearing of pistols as
violative of the Second, Fourth, and Fourteenth Amendments.  But he
asserted these arguments for the first time after his conviction
had been affirmed by a state appellate court.  Reiterating
Cruikshank and Presser, the Supreme Court first found that the
Second and Fourth Amendments, of themselves, did not limit state
action.  The Court then turned to the claim that the Texas statute
violated the rights to bear arms and against warrantless searches
as incorporated in the Fourteenth Amendment.  But because the Court
would not hear objections not made in a timely fashion, the Court
refused to consider Miller's contentions.  Thus, rather than reject
incorporation of the Second and Fourth Amendments in the
Fourteenth, the Supreme Court merely refused to decide the
defendant's claim because its powers of adjudication were limited
to the review of errors timely assigned in the trial court.  The
Court left open the possibility that the right to keep and bear
arms and freedom from warrantless searches would apply to the
states through the Fourteenth Amendment.  


     U.S. v. Miller, 307 U.S. 174 (1939).  This is the only case in
which the Supreme Court has had the opportunity to apply the Second
Amendment to a federal firearms statute.  The Court, however,
carefully avoided making an unconditional decision regarding the
statute's constitutionality; it instead devised a test by which to
measure the constitutionality of statutes relating to firearms and
remanded the case to the trial court for an evidentiary hearing
(the trial court had held that Section 11 of the National Firearms
Act was unconstitutional).  The Court remanded to the case because
it had concluded that:  

     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.
     
     Thus, for the keeping and bearing of a firearm to be
constitutionally protected, the firearm should be a militia-type
arm.

     The case also made clear that the militia consisted of "all
males physically capable of acting in concert for the common
defense" and that "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."  In setting forth this definition of the
militia, the Court implicitly rejected the view that the Second
Amendment guarantees a right only to those individuals who are
members of the militia.  Had the Court viewed the Second Amendment
as guaranteeing the right to keep and bear arms only to "all males
physically capable of acting in concert for the common defense," it
would certainly have discussed whether, on remand, there should
also be evidence that the defendants met the qualifications for
inclusion in the militia, much as it did with regard to the militia
use of a short-barrelled shotgun.  


     Lewis v. United States, 445 U.S. 95 (1980).  Lewis recognized
-- in  summarizing the holding of Miller, supra, as "the Second
Amendment guarantees no right to keep and bear a firearm that does
not have 'some reasonable relationship to the preservation or
efficiency of a well-regulated militia'" (emphasis added) -- that
Miller had focused upon the type of firearm.  Further, Lewis was
concerned only with  whether the provision of the Omnibus Crime
Control and Safe Streets Act of 1968 which prohibits the possession
of firearms by convicted felons (codified in 18 U.S.C. 922(g) in
1986) violated the Second Amendment.  Thus, since convicted felons
historically were and are subject to the loss of numerous
fundamental rights of citizenship -- including the right to vote,
hold office, and serve on juries -- it was not erroneous for the
Court to have concluded that laws prohibiting the possession of
firearms by a convicted felon "are neither based upon
constitutionally suspect criteria, nor do they trench upon any
constitutionally protected liberties."
 
     United States v. Verdugo-Urquirdez, 110 S. Ct. 3039 (1990). 
This case involved the meaning of the term "the people" in the
Fourth Amendment.  The Court unanimously held that the term "the
people" in the Second Amendment had the same meaning as in the
Preamble to the Constitution and in the First, Fourth, and Ninth
Amendments, i.e., that "the people" means at least all citizens and
legal aliens while in the United States.  This case thus resolves
any doubt that the Second Amendment guarantees an individual right.

                  U.S. Courts of Appeals Cases


     U.S. v. Nelson, 859 F.2d 1318 (8th Cir. 1988).  This case is
not a firearms case; it involves the federal switchblade knife act. 
Based on the holding in U.S. v Cruikshank, 92 U.S. 542, 553 (1876),
that the right to keep and bear arms "is not a right granted by the
Constitution," the Eighth Circuit concluded that the right is not
fundamental.  Of course, the statement in Cruikshank -- a case
which involved the theft of firearms by private citizens from other
private citizens -- simply meant that the right was not created by
the Constitution, but that it preexisted the Constitution and that
the Second Amendment was "to restrict the powers of the national
government, leaving the people to look for their protection against
any violation by their fellow-citizens of the rights it recognizes"
to the state criminal laws.  Moreover, the Eighth Circuit's one
paragraph opinion cited Miller, Oakes, infra, and Warin, infra,
without any explanation, in holding that the Second Amendment has
been analyzed "purely in term of protecting state militias, rather
than individual rights."  While this statement is true, it
certainly does not mean that Miller rejected the conclusion that an
individual right was protected.  Thus, the Eighth Circuit did not
err in concluding that it was important that "Nelson has made no
arguments that the Act would impair any state militia . . . . " 

     U.S. v. Cody, 460 F.2d 34 (8th Cir. 1972).  This case involved
the making of a false statement by a convicted felon in connection
with the purchase of a firearm.  After citing Miller for the
propositions that "the Second Amendment is not an absolute bar to
congressional regulation of the use or possession of firearms" and
that the "Second Amendment's guarantee extends only to use or
possession which 'has some reasonable relationship to the
preservation or efficiency of a well-regulated militia,'" the court
held that there was "no evidence that the prohibition of 922(a)(6)
obstructs the maintenance of a well-regulated militia."  Thus, the
court acknowledged that the Second Amendment would be a bar to some
congressional regulation of the use or possession of firearms and
recognized that Miller required the introduction of evidence which
showed a militia use for the firearm involved.


     U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971).  Like Synnes,
infra, the court here held that the defendant could "present ...
evidence indicating a conflict" between the statute at issue and
the Second Amendment.  Since he failed to do so, the court declined
to hold that the record-keeping requirements of the Gun Control Act
of 1968 violated the Second Amendment.  As with Synnes, the court
once again implicitly recognized that the right guaranteed belonged
to individuals.


     U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other
grounds, 404 U.S. 1009 (1972).  This is another case involving
possession of a firearm by a convicted felon.  In holding that 18
U.S.C. App. Section 1202(a) (reenacted in 18 U.S.C. 922(g) in 1986)
did not infringe the Second Amendment, the court held (based upon
its partially erroneous view of Miller) that there needed to be
evidence that the statute impaired the maintenance of a well-
regulated militia.  As there was "no showing that prohibiting
possession of firearms by felons obstructs the maintenance of a
'well regulated militia,'" the court saw "no conflict" between
1202(a) and the Second Amendment.  While Miller focused on the
need to introduce evidence that the firearm had a militia use,
Synnes at least recognized the relevance of a militia nexus.  There
was a clear recognition, moreover, that the Second Amendment
guarantees an individual right.

     Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 1071
(S.D. Ala. 1989), aff'd, 894 F.2d 412 (11th Cir. 1990) (mem).  The
court held that the Second Amendment "guarantees to all Americans
'the right to keep and bear arms' . . . . "


     U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied,
435 U.S. 926 (1978).  Although the court recognized the requirement
of Miller that the defendant show that the firearm in question have
a "connection to the militia," the court concluded, without any
explanation of how it reached the conclusion, that the mere fact
that the defendant was a member of the Kansas militia would not
establish that connection.  In light of the fact that Miller (which
defines the militia as including "all males physically capable of
acting in concert for the common defense") saw no relevance in the
status of a defendant with respect to the militia, but instead
focused upon the firearm itself, this conclusion is not without
basis.


     U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975).  In the
context of interpreting the meaning of the phrase "engaging in the
business of dealing in firearms" in 18 U.S.C. 922(a)(1), the court
noted, in dicta, merely that "there is no absolute constitutional
right of an individual to possess a firearm."  Emphasis added. 
Clearly, therefore, the court recognized that the right is an
individual one, albeit not an absolute one.


     U.S. v. Johnson, 497 F.2d 548 (4th Cir. 1974).  This is one of
the three court of appeals cases which uses the term "collective
right."  The entire opinion, however, is one sentence, which states
that the Second Amendment "only confers a collective right of
keeping and bearing arms which must bear a 'reasonable relationship
to the preservation or efficiency of a well-regulated militia'." 
As authority for this statement, the court cites Miller and Cody v.
U.S., supra.  Yet, as the Supreme Court in Lewis, supra, made
clear, Miller held that it is the firearm itself, not the act of
keeping and bearing the firearm, which must have a "reasonable
relationship to the preservation or efficiency of a well-regulated
militia."  The court did, however, recognize that Miller required
evidence of the militia nexus.  Moreover, the particular provision
at issue in Johnson concerned the interstate transportation of a
firearm by convicted felons, a class of persons which historically
has suffered the loss of numerous rights (including exclusion from
the militia) accorded other citizens. 

     U.S. v Bowdach, 414 F. Supp. 1346 (D.S. Fla 1976), aff'd, 561
F.2d 1160 (5th Cir. 1977).  The court held that "possession of the
shotgun by a non-felon has no legal consequences.  U.S. Const.
Amend II."

     U.S. v. Johnson, Jr., 441 F.2d 1134 (5th Cir. 1971).  Once
again, this decision merely quotes from Miller the statement
concerning the requirement of an evidentiary showing of a militia
nexus and a consequent rejection, without even the briefest of
analysis, of the defendant's challenging to the constitutionality
of the National Firearms Act of 1934 (NFA).  Apparently, the
defendant failed to put on evidence, as required by Miller, that
the firearm at issue had a militia use.  Thus, Miller bound the
appeals court to reject the defendant's challenge. 


     Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir.
1982), cert. denied, 464 U.S. 863 (1983).  In rejecting a Second
and Fourteenth Amendment challenge to a village handgun ban, the
court held that the Second Amendment, either of itself or by
incorporation through the Fourteenth Amendment, "does not apply to
the states. . . ."  The court, in dicta, went on, however, to
"comment" on the "scope of the second amendment," incorrectly
summarizing Miller as holding that the right extends "only to those
arms which are necessary to maintain a well regulated militia." 
Thus, finding (without evidence on the record) that "individually
owned handguns [are not] military weapons," the court concluded
that "the right to keep and bear handguns is not guaranteed by the
second amendment."


     U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971).  This is
another case involving the NFA in which the court merely followed
Miller in holding that the NFA did not infringe the Second
Amendment.


     Stevens v. United States, 440 F.2d 144 (6th Cir 1971).  In a
one sentence holding, the court simply concluded that the Second
Amendment "applies only to the right of the State to maintain a
militia and not to the individual's right to bear arms ...." 
Merely citing Miller as authority for this conclusion, the court
undertook no analysis of Miller or of the history of the
ratification of the Second Amendment.  This case, moreover,
involved possession of firearms by convicted felons, a class of
persons whose right traditionally have been more restricted than
law-abiding citizens.

     
     U.S. v. Day, 476 F.2d 562 (6th Cir. 1973).  Citing Miller, the
court merely concluded, in reviewing a challenge to the statute
barring dishonorably discharged persons from possessing firearms,
that "there is no absolute right of an individual to possess a
firearm."  Emphasis added.  Since there are certain narrowly
defined classes of untrustworthy persons, such as convicted felons
and, as here, persons dishonorably discharged from the armed
forces, who may be barred the possession of firearms, it is a
truism to say that there is not an absolute right to possess
firearms.  In so saying, the court implicitly recognized the
individual right of peaceful and honest citizens to possess
firearm.


     U.S. v. Warin, 530 F.2d 103 (6th Cir 1976), cert. denied, 426
U.S. 948 (1976).  Following, and relying upon, its earlier decision
in Stevens, supra, the court simply concluded, without any
reference to the history of the Second Amendment, that it "is clear
the Second Amendment guarantees a collective rather than an
individual right."  The court also indicated that, in reaching its
decision, it was relying upon the First Circuit's decision in
Cases, infra.   Yet in concluding that not all arms were protected
by the Second Amendment, Cases did not hold, as did Warin, that the
Second Amendment afforded individuals no protections whatever. 
Warin also erred in concluding that Warin's relationship to the
militia was relevant to determining whether his possession of a
machine gun was protected by the Second Amendment since the Supreme
Court in Miller focused on the firearm itself, not the individual
involved.  In fact, Miller quite expansively defined the
constitutional militia as encompassing "all males physically
capable of action in concert for the common defense."


     U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on other
grounds, 319 U.S. 463 (1943).  This is another case involving
possession of a firearm by a convicted felon.  Despite holding that
the failure of the defendant to prove, as required by Miller, a
militia use for the firearm was an adequate basis for ruling
against the defendant, the court, in dicta, concluded that the
Second Amendment "was not adopted with individual rights in mind .
. . ."  This result was based on reliance on an extremely brief --
and erroneous -- analysis of common law and colonial history.  In
addition, apparently recognizing that it decided the case on
unnecessarily broad grounds, the court noted that, at common law,
while there was a right to bear arms, that right was not absolute
and could be restricted for certain classes of persons "who have
previously . . . been shown to be aggressors against society."


     U.S. v. Graves, 554 F.2d 65 (3rd Cir. 1977).  Since the
defendant in this case did not raise the Second Amendment as a
challenge to the "statutory program which restricts the right to
bear arms of convicted felons and other persons of dangerous
propensities," the only discussion of the Second Amendment is
found in a footnote wherein the court states "[a]rguably, any
regulation of firearms may be violative of this constitutional
provision."  


     Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert.
denied sub nom., Velazquez v. U. S., 319 U.S. 770 (1943).  In this
case, the court held that the Supreme Court in Miller had not
intended "to formulate a general rule" regarding which arms were
protected by the Second Amendment and concluded, therefore, that
many types of arms were not protected.  Nonetheless, the court in
Cases expressly acknowledged that the Second Amendment guarantees
an individual right when it noted that the law in question
"undoubtedly curtails to some extent the right of individuals to
keep and bear arms ...."  Id. at 921.  Emphasis added.  Moreover,
the court in Cases concluded, as properly it should have, that
Miller should not be read as holding that the Second Amendment
guaranteed the right to possess or use large weapons that could not
be carried by an individual.






                    U.S. District Court Cases


     U.S. v. Gross, 313 F.Supp. 1330 (S.D. Ind. 1970), aff'd on
other grounds, 451 F.2d 1355 (7th Cir. 1971).  In rejecting a
challenge to the constitutionality of the requirement that those
who engage in the business of dealing in firearms must be licensed,
the court, following its view of Miller, held that the defendant
had not shown that "the licensing of dealers in firearms in any way
destroys, or impairs the efficiency of, a well regulated militia."


     U.S. v. Kraase, 340 F.Supp. 147 (E.D. Wis. 1972).  In ruling
on a motion to dismiss an indictment, the court rejected a facial
constitutional challenge to 18 U.S.C. 922(a)(5) -- which prohibited
sales of firearms to residents of other states.  Recognizing that
an individual right was protected, it held that "second amendment
protection might arise if proof were offered at the trial
demonstrating that his possession of the weapon in question had a
reasonable relationship to the maintenance of a 'well-regulated
Militia.'"


     Thompson v. Dereta, 549 F.Supp. 297 (D. Utah 1982).  An
applicant for relief from disabilities (a prohibited person)
brought an action against the federal agents involved in denying
his application.  The court dismissed the case, holding that,
because there was no "absolute constitutional right of an
individual to possess a firearm," there was "no liberty or property
interest sufficient to give rise to a procedural due process
claim."


     Vietnamese Fishermen's Assoc. v. KKK, 543 F.Supp. 198 (S.D.
Tex. 1982).  Like the statute faced by the Supreme Court in Presser
v. Illinois, 116 U.S. 252 (1876), the Texas statute and the
injunction at issue here prohibited private military activity. 
Mischaracterizing Miller, the court held that the Second Amendment
"prohibits only such infringement on the bearing of weapons as
would interfere with 'the preservation or efficiency of a well-
regulated militia,' organized by the State."  Later, however, the
court, following Miller, explained that the "Second Amendment's
guarantee is limited to the right to keep and bear such arms as
have 'a reasonable relationship to the preservation or efficiency
of a well regulated militia.'"  The courts's understanding of the
Second Amendment is thus inconsistent and, given the facts of the
case, largely dicta.  


     U.S. v. Kozerski, 518 F.Supp. 1082 (D.N.H.1981), cert. denied,
469 U.S. 842 (1984).  In the context of a challenge to the law
prohibiting the possession of firearms by convicted felons, the
court, while holding correctly (see discussion of Nelson, supra)
that the Second Amendment "is not a grant of a right but a
limitation upon the power of Congress and the national government,"
concluded that the right "is a collective right . . . rather that
an individual right," citing only Warin, supra.  As a district
court in the First Circuit, however, the court was bound by Cases,
supra, which expressly recognized that the right belonged to
individuals.
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