A Practicing Attorney's Look At The Second Amendment
Howard J. Fezell, Esq.
Advocates of more stringent restrictions on the private ownership of firearms (if not an outright prohibition) contend that the Second Amendment guarantees only a collective right of States to maintain militias.1 One anti-gun academian, Prof. Andrew D. Herz, claims that "the gun lobby has successfully spun a mythical broad individual right to bear arms for all legal private purposes."2 According to Prof. Herz, the Courts "have clearly held" there is no such right of individuals;3 that whatever rights individuals may have to bear arms is inextricably tied to their service in a "well-regulated militia."4 However, the Supreme Court of the United States has consistently treated the right to keep and bear arms as one of individuals, without regard to their affiliation with any organized militia.5
The plain text of the Constitution
An "individual rights" interpretation of the right guaranteed by the Second Amendment6 is consistent with the plain text of the Constitution.7 The operative clause of the Second Amendment guarantees the right of the people, not of States.8 The Tenth Amendment expressly distinguishes between "the people" and "the States" by providing that: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The main body of the Constitution likewise distinguishes between "the people", "persons" and "States".9
If the Second Amendment guarantees only the right of States to maintain militias, why hasn't the Supreme Court disposed of Second Amendment claims on the grounds that the individuals asserting them lacked standing?
Whether or not a plaintiff has "standing" (the legal right to assert a claim) is a threshhold question for anyone who makes his or her living litigating cases. If the plaintiff somehow lacks standing to assert a claim, considerable time can be saved by disposing of the case without the necessity of discovery and a trial.10 The quickest way to become a hero to one's client is to have the opposition's case thrown out of court right at the beginning thereby saving the client a lot of time, aggravation, and money.
Any person asserting the violation of a constitutional right must show a direct and immediate personal injury.11 If, as Prof. Herz claims, the Second Amendment guarantees a right to bear arms "only for those individuals who are part of a `well regulated militia'",12 the Supreme Court could have quickly disposed of any Second Amendment claims addressed by it13 simply by holding that the claimant, not being affiliated with a militia, lacked standing. The Court, however, has never even suggested that an individual must be affiliated with a militia in order to assert a Second Amendment Claim.14 The failure of the Supreme Court to dispose of individual Second Amendment claims for lack of standing speaks volumes as to how the Court views the nature of that right. The individual nature of the right to keep and bear arms has never been questioned by that Court, although it made it clear in that the right to keep and bear arms (like many other rights of citizens) may be denied to convicted felons.15
Since 1857 the Supreme Court has treated the Second Amendment as guaranteeing an individual right.
v. Sanford16 (also known as the "Dred
Scott Case") the Supreme Court addressed the question of whether persons
of African descent could be citizens. It held that they could not
in an opinion written by Chief Justice Taney, a Southerner from Maryland
(where slavery was both legal and widely practiced). In 1857, Southerners
were not keen on the idea of freeing the slaves, much less bestowing upon
them the rights of citizens. The concerns of his fellow Southerners
were not lost upon Chief Justice Taney, who wrote in dicta that
if blacks were recognized as citizens in any State of the Union, they would
have the right to travel freely, engage in free speech, hold public meetings
on political issues, and "keep and carry arms wherever they went."17
If the Second Amendment guaranteed only the collective right of states
to maintain militias, there would have been no reason for Taney to fear
that black citizens could "keep and carry arms" since citizenship
does not automatically entail service in an organized state militia. What
concerned Chief Justice Taney was the rights blacks would enjoy as citizens.
The Court's opinion in Scott v. Sanford also listed the right
to keep and bear arms with other rights which the Court has held to be
of an individual nature, such as freedom of religion, free speech, freedom
of the press, peaceable assembly, trial by jury, and the right against
In United States v. Cruikshank19 the Supreme Court held that the Second Amendment, like the rest of the Bill of Rights, only operated as a restraint upon the federal government. In discussing the right to "bear arms for a lawful purpose" the Court stated that "the people" should look to localities (not the National Government) for protection against "their fellow citizens" of rights recognized by the Second Amendment.20 Cruikshank affirmed an order arresting judgments of conviction for conspiracy to deprive freed blacks in Louisiana of their civil rights. The fact that the black citizens who were victimized were not affiliated with an organized state militia had no bearing on the case. The Court in Cruikshank also used the phrase "the people" in the same context as "their fellow citizens".21 It obviously viewed "the people" referred to in the Second Amendment as meaning individuals. States, unlike individuals, do not have "fellow citizens".
In Presser v. Illinois22 the Supreme Court upheld the conviction of a man charged with parading a body of armed men through Chicago without a license. Illinois law prohibited bodies of men to associate together as military organizations or to drill or parade in cities and towns unless authorized by law. Presser challenged this law as violating the Second Amendment. The Court held that these provisions did not infringe the right of the people to keep and bear arms. Citing Cruikshank, the Supreme Court in Presser also held that the Second Amendment is a limitation only upon Congress and the federal government. The Presser opinion did, however, hold that all citizens capable of bearing arms constitute the reserve military force or reserve militia of the United States and of the States; and that even without the Second Amendment states may not prohibit people from keeping and bearing arms "so as to deprive the United States of their rightful resource for maintaining public security."23 The Court in Presser thus drew a clear distinction between "the people" and "States". If the Second Amendment guaranteed only a collective right, the Court could easily have disposed of Presser's Second Amendment claim by holding that he lacked standing to assert it. Instead, the Supreme Court addressed Presser's Second Amendment claim on its merits.
In Miller v. Texas24 the Supreme Court declined to rule on the appellant's Second Amendment claim due to his failure to raise it in a timely fashion, stating, "[i]f the Fourteenth Amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court."25 Miller had been convicted of murder and on appeal argued that Texas law forbidding the carrying of weapons violated the Second Amendment. Once again, if the Second Amendment guaranteed only a collective right, such a claim could have been easily disposed of due to Miller's lack of standing. However, the Supreme Court declined to rule on Miller's Second Amendment claim not because he, as an individual, lacked standing to assert it. The Court instead held that he had failed to assert it in a timely fashion.
United States v. Miller26 involved the indictment of Jack Miller and a cohort for unlawfully transporting a short-barrelled shotgun in violation of the National Firearms Act of 1934. The federal district court sustained Miller's motion to dismiss his indictment, holding that the section of the act under which he had been charged violated the Second Amendment. The United States appealed. Jack Miller absconded. Only the Solicitor General for the United States filed a brief or appeared to argue the case. What the Supreme Court was concerned with was whether the shotgun possessed by Miller had "some reasonable relationship to the preservation or efficiency of a well-regulated militia,..."27 The Court refused to take judicial notice that a short-barrelled shotgun "is any part of ordinary military equipment or that its use could contribute to the common defense"28 and the case was remanded to the district court for further proceedings. If the Second Amendment guaranteed only a collective right, the Court could have simply held that Jack Miller, as an individual, lacked standing to assert a right to keep and bear arms. However, the fact that Miller was not affiliated with an organized state militia had no bearing on the case. The Court's opinion in Miller never even suggested that the possessor of a firearm must be a member of a militia, and the individual nature of the right to keep and bear arms went unquestioned. Nonetheless, a number of courts have selectively (and, I think, dishonestly) quoted United States v. Miller to support a conclusion that the Second Amendment guarantees only a collective right.29
United States v. Verdugo-Urquidez30 involved the search of a residence in Mexico by agents of the United States Drug Enforcement Agency. The occupant of the residence was a Mexican citizen who later sought to suppress evidence that had been obtained during the search. The Supreme Court held that the Fourth Amendment did not apply to a search by American police of the Mexican residence of a Mexican citizen and resident who had no voluntary attachments to the United States. Although this case involved a claim under the Fourth Amendment's prohibition against unreasonable searches and seizures, the opinion by Chief Justice Rhenquist makes it clear that the phrase "the people", as used in the Bill of Rights, means individuals.31 Justice Brennan, in his dissenting opinion in Verdugo-Urquidez drew a clear distinction between "the people" and "the government"32
In Planned Parenthood v. Casey33 the Supreme Court considered the constitutionality of provisions in a Pennsylvania abortion statute requiring the informed consent of the patient, a 24-hour waiting period, parental consent, spousal notification, and reporting and recordkeeping. The plaintiffs claimed that such provisions constituted a deprivation liberty in violation of the Due Process Clause of the Fourteenth Amendment. Planned Parenthood held that the substantive liberties protected by the Fourteenth Amendment against interference by the States was not limited to those rights already guaranteed against federal interference by the first eight amendments to the Constitution. In doing so, the Court listed the right to keep and bear arms in the same context as other rights which it has held to be of an individual nature (e.g., compensation for taking of property; freedom of speech, press, and religion; freedom from unreasonable searches and seizures).34 That the Court would even mention the right to keep and bear arms in a discussion of the rights protected by the Due Process Clause of the Fourteenth Amendment demonstrates that it considers the Second Amendment to guarantee an individual right. The touchstone of due process is protection of the individual against arbitrary action of government.35 The First and Fourth Amendments guarantee individual, as opposed to collective, rights.36 The Court's opinions in Verdugo-Urquidez and Planned Parenthood demonstrate that if "the people" whose rights are guaranteed by the First, Fourth, Ninth, and Tenth Amendments are individuals, "the people" whose rights are guaranteed by the Second Amendment must also be individuals.
Prof. Herz's conclusion that the Courts "have clearly held" there is no such right of individuals to keep and bear arms37 is entirely without legal basis as far as the Supreme Court is concerned. If gun-prohibitionists seek legal authority that the Second Amendment guarantees only a collective right of states to maintain militias, they will have to look someplace else.
(Underlining in quotations below does not designate hypertext, but only provides emphasis.)
Note 1 See, e.g., Herz, Gun Crazy: Constitutional False Consciousness And Dereliction Of Dialogic Responsibility, 75 B. U. L. Rev. 57 (1995).
Note 2 Id.
at 57-58. One would presume that the phrase "legal private purposes",
as used by Prof Herz, is intended to include self-defense against criminal
assaults. According to one federal Circuit Court of Appeals, that is a
fundamental right. United States v. Panter, 688 F.2d 268,
271 (5th Cir. 1982). The significance of access to firearms to give
meaning to the fundamental right recognized in Panter is highlighted by
the fact that the Supreme Court has held that local governments have no
obligation to protect any particular individual from the violent acts of
another; that the obligation of the authorities to provide protection extends
only to the public at large. See DeShaney v. Winnebago County
Department Of Social Services, 489 U.S. 189, 196-97 (1989), South
v. Maryland 59 U.S. 396 (1856).
Note 3 Id. at 58.
Note 4 Id. Prof. Herz's assertion as to the collective nature of the right guaranteed by the Second Amendment is consistent with that of other gun-prohibitionists. For example, one group associated with Handgun Control, Inc. (HCI) claims that, "possession of a gun by an individual is constitutionally protected only when his/her possession relates to service in a `well regulated Militia,' i.e. the National Guard." Center To Prevent Handgun Violence Legal Action Project, Exploding the NRA's Second Amendment Mythology (1994), p. 12.
Note 5 See notes 16 - 34, infra, and accompanying text.
Note 6 The
text of the Second Amendment to the United States Constitution reads as
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.
Note 7 As
noted by Prof. Akil Reed Amar of Yale Law School in The Bill of Rights
as a Constitution, 100 YALE L. J. 1131, 1166 (1991):
The states' rights reading [of the Second Amendment] puts great weight on the word "militia," but this word appears only in the Amendment's subordinate clause. The ultimate right to keep and bear arms belongs to "the people," not the "states." As the language of the Tenth Amendment shows, these two are of course not identical and when the Constitution means "states," it says so. Thus, as noted above, "the people" at the core of the Second Amendment are the same "people" at the heart of the Preamble and the First Amendment, namely Citizens.
In The Second Amendment and The Personal Right to Arms, Vol. 43 DUKE LAW JOURNAL 1236, 1243-44 (1994) Prof. William Van Alstyne of Duke University Law School writes:
[The Second Amendment] looks to an ultimate reliance on the common citizen who has a right to keep and bear arms rather than only to some standing army, or only to some other politically separated, defined, and detached armed cadre, as an essential source of security of a free state. In relating these propositions within one amendment, moreover, it does not disparage, much less does it subordinate "the right of the people to keep and bear arms." To the contrary, it expressly embraces that right and indeed it erects the very scaffolding of a free state upon that guarantee. It derives its definition of a well-regulated Militia in just this way for a "free State:" The Militia to be well regulated is a Militia to be drawn from just such people (i.e. people with a right to keep and bear arms) rather than from some other source (i.e. from people without rights to keep and bear arms). (emp. in original)
In TO KEEP
AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 162-63 (Harvard University
Press, 1994) Historian Joyce Lee Malcolm writes:
The Second Amendment was meant to accomplish two distinct goals, each perceived as crucial to the maintenance of liberty. First, it was meant to guarantee the individual's right to have arms for self-defence and self-preservation. Such an individual right was a legacy of the English Bill of Rights. This is also plain from American colonial practice, the debates over the Constitution, and state proposals for what was to become the Second Amendment. In keeping with colonial precedent, the American article broadened the English protection. English restrictions had limited the right to have arms to Protestants and made the type and quantity of such weapons dependent upon what was deemed "suitable" to a person's "condition." The English also included a proviso that the right to have arms was to be "as allowed by law."
Americans swept aside these limitations and forbade any infringement upon the right of people to keep and bear arms. These privately owned arms were meant to serve a larger purpose as well, albeit the American framers of the Second Amendment, like their English predecessors, rejected language linking their right to "the common defence." When, as Blackstone phrased it, "the sanctions of society and laws are found insufficient to restrain the violence of oppression," these private weapons would afford the people the means to vindicate their liberties. The Second and related objective concerned the militia, and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public, and Madison's original version of the amendment, as well as those suggested by the states, described the militia as either "composed of" or "including" the body of the people. A select militia was regarded as little better than a standing army. The argument that today's National Guardsmen, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation.
The collective interpretation of Second Amendment espoused by Prof. Herz implies that individual States somehow require a constitutional guarantee to maintain a militia. Had the framers of the Bill of Rights recognized such a need, and desired to guarantee the right of the States to maintain militias (but not of individuals to keep and bear arms), they could have adopted language submitted by Roger Sherman of Connecticut. His proposed amendment placed the militia under the control of the states but contained no right to keep and bear arms:
The militia shall be under the government of the laws of the respective States, when not in the actual Service of the united [sic] States, but such rules as may be prescribed by Congress for their uniform organization & discipline shall be observed in officering and training them, but military Service shall not be required of persons religiously scrupulous of bearing arms.
Dowlut, Federal And State Constitutional Guarantees To Arms, 15 U. DAYTON L. REV. 59, 65 (1989). See also Halbrook, The Right Of The People Or The Power Of The State: Bearing Arms, Arming Militias, And The Second Amendment, 26 VAL. UNIV. L. REV. 131 (1991). Language qualifying the right to keep and bear arms by inserting the phrase "for the common defense" next to the words "bear arms" was likewise rejected, underscoring a refusal to limit the right to military purposes. Dowlut, supra, at 66.
Note 8 Amar, note 6, supra.
Note 9 U.S.
Const., art. I., Sec. 2 provides, in pertinent part, as follows:
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, . . . (emp. added) No Person shall be a Representative who shall not have attained the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. (emp. added) U.S. Const., art. I, Sec. 3 originally provided that: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. (emp. added)
Note 10 A lawyer defending a civil action who desires to challenge the plaintiff's capacity to bring the action would raise that issue in the form of a negative defense. See Fed. R. Civ. P. 9(a). A party's lack of standing to assert a claim might also be put before the court by way of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), or a motion for summary judgment pursuant to Fed. R. Civ. P. 56.
Note 11 Baker v. Carr, 369 U.S. 186, 204 (1962).
Note 12 Herz, supra, at 58.
Note 13 See notes, 19 - 29, infra, and accompanying text.
Note 14 Even Congress interprets the Second Amendment as guaranteeing an individual right. In enacting the Firearms Owners Protection Act of 1986, Congress included an express prefatory statement of "Congressional Finding and Declaration" providing, in pertinent part: The Congress finds that the rights of citizens -- (A) to keep and bear arms under the second amendment to the United States Constitution [USCS Constitution, Amendment 2] . . . require additional legislation to correct existing firearms statutes and enforcement policies." (emp. added) Pub.L. 99-308, Sec. 1(b) (1986). See 18 U.S.C.S. Sec. 921, History; Ancillary Law And Directives (Lawyer's Cooperative Pub. Supp. 1993) p. 123. Note that Congress used the phrase "the rights of citizens", not "the rights of citizens serving in an organized militia". As discussed in note 9, supra, the Constitution recognizes that only natural persons may be citizens, and draws a clear distinction between "persons" and "States". Such a finding and declaration by Congress evidences a belief on its part that an individual right (as opposed to a collective right) to keep and bear arms is guaranteed by the Second Amendment.
Note 15 Lewis v. United States, 455 U.S. 55 (1980) (Supreme Court upheld constitutionality of federal statute making it unlawful for a convicted felon to possess a firearm).
Note 16 60 U.S. (19 How.) 393 (1857).
Note 17 Id. at 416-17 (dictum).
Note 18 Id.
at 450 (dictum). What Justice Taney wrote on this point is
But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of government. The powers of the government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. . . .
For example, no one, we will presume, will contend that Congress can make any law in a territory respecting the establishment of a religion or free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for the redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel anyone to be a witness against himself in a criminal proceeding.
Utilizing the process that has come to be known as "selective incorporation", the Supreme Court has subsequently held the rights described by Taney as being individual in nature. See Gitlow v. New York, 268 U.S. 652 (1925)(First Amendment right to freedom of speech; appeal of criminal conviction); Near v. Minnesota, 283 U.S. 697 (1931)(First Amendment right to freedom of the press; appeal of defendant in suit to enjoin nuisance); De Jonge v. Oregon, 299 U.S. 353 (1937)(First Amendment right to peaceable assembly; appeal of criminal conviction); Cantwell v. Connecticut, 310 U.S. 296 (1940)(First Amendment guarantee of freedom of religion; appeal of criminal conviction); Everson v. Board of Education, 330 U.S. 1 (1947) (First Amendment prohibition against establishment of religion; appeal from reversal of judgment setting aside resolution providing for transportation of pupils to both public and parochial schools); Irvin v. Dowd, 366 U.S. 17 (1961) (Sixth Amendment right to impartial jury; appeal of dismissal of petition for habeas corpus); Mapp v. Ohio, 367 U.S. 643 (1961)(barred use of evidence seized in violation of Fourth Amendment; appeal of criminal conviction); Malloy v. Hogan, 378 U.S. 1 (1964)(Fifth Amendment right against self-incrimination; appeal of denial of writ of habeas corpus); Duncan v. Louisiana, 391 U.S. 145 (1968)(Sixth Amendment right to jury trial; appeal of criminal conviction).
Note 19 92 U.S. 542 (1876).
Note 20 Id. at 553.
Note 21 Id.
Note 22 116 U.S. 252 (1886).
Note 23 Id. at 265.
Note 24 153 U.S. 535 (1894).
Note 25 Id. at 538.
Note 26 307 U.S. 174 (1939).
Note 27 Id. at 178.
Note 28 Id.
Note 29 In Miller, the Court discussed the historical background of the term "militia":
The Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily 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. (emp. added)
307 U.S. at 178-79 (emp. added)
Miller made it clear that the militia whose continuation and effectiveness the Second Amendment was intended to assure consists of individuals who, by necessity, must be free to possess arms of the kind in common use.
Prof. Sanford Levinson of the University of Texas School of Law is of the opinion that:
"Miller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course assault weapons."
Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 654-55 (1989).
However, by quoting only the underlined portion of the first paragraph and ignoring those in the third paragraph which are excerpted above, some courts have misconstrued Miller as holding that the Second Amendment guarantees only a collective right of States to maintain a militia. One such example is City Of East Cleveland v. Scales, 460 N.E. 2d 1126 (1983), which quotes the first paragraph from Miller set forth above, but totally ignores the language in the third. Another example is United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), which involved the appellant's possession of an unregistered machine gun. The court quoted Miller for the proposition that the purpose of the Second Amendment was "to preserve the effectiveness and assure the continuation of the state militia." Id. at 387. However, Oakes offers no explanation as to how Miller would require the possessor of a firearm to be associated with an organized militia before being able to assert the protection of the Second Amendment. Other courts simply cite Miller as authority that the Second Amendment guarantees only a collective right of States to maintain a militia, but offer no discussion as to how Miller supports that proposition. See, e.g. Stevens v. United States, 440 F.2d 144 (6th Cir. 1971). Stevens cites Miller for the proposition that "[s]ince the Second Amendment right `to keep and bear arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm." Id. at 149. Stevens, however, quotes no language from Miller that would support this conclusion. The same is true of United States v. Warin, 530 F.2d 103, 106, (6th Cir. 1976)(quoting Stevens); United States v. Kozerski, 518 F.Supp. 1082, 1090 (D.N.H. 1981)(quoting Warin); and Krisko v. Oswald, 655 F. Supp 147, 149 (E.D.Pa. 1987)(quoting Stevens). United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) involved a convicted felon who was found in possession of a firearm. It cited Miller for the proposition that "[t]he courts have consistently held 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.'" However, no explanation of how Miller supports this collective rights interpretation is offered. Quilici v. Village Of Morton Grove, 695 F.2d 261 (1982) involved a constitutional challenge to a local ban on the possession of handguns. Quilici discusses Miller. Id. at 270. But it offers no explanation as to how Miller could be read to support the proposition that the Second Amendment guarantees only a collective right.
Note 30 494 U.S. 259 (1990)(dictum).
Note 31 In Verdugo-Urquidez, Chief Justice Rhenquist discussed the phrase "the people" in the following terms:
"The people" seems to have been a term of art employed in select parts of the Constitution. . . . The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. const., Amdt. 1, ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") . . . . While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
U.S. at 265 (emp. added)
Note 32 In his dissenting opinion Justice Brennen described the phrase "the people" as follows:
[T]he term `the people' is better understood as a rhetorical counterpoint to "the government," such that rights that were reserved to "the people" were to protect all those subject to "the government."
at 287 (emp. added)
Note 33 __ U.S. ___, 112 S.Ct. 2791 (1992).
Note 34 In its discussion of the scope of "liberty" protected by the Due Process Clause of the Fourteenth Amendment the Court stated:
Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9. As the second Justice Harlan recognized:
"[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777 (Harlan, J., dissenting from dismissal on jurisdictional grounds.)
112 S.Ct. at 2805 (emp. added)
Note 35 Dent v. West Virginia, 129 U.S. 114, 123 (1889); Wolff v. McDonnell, 418 U.S. 539, 558 (1974). The linchpin of Prof. Herz's argument is that the right to bear arms is contingent upon one's service in a militia (presumably under the firm control of a State government). According to Herz, the right is ultimately the right of States to arm their own militias. If that is the case, how could the right to keep and bear arms fall within the scope of liberties which the Supreme Court says are protected by the Due Process Clause? Neither Prof. Herz nor any of the authorities cited by him have an answer.
Note 36 See Gitlow v. New York, 268 U.S. 652 (1925)(First Amendment guarantee of freedom of speech applicable to States); Mapp v. Ohio, 367 U.S. 643 (1961)(barred use of evidence seized by State agents in violation of Fourth Amendment).
Note 37 See note 3, supra.