by Dave Kopel
Liberty, Feb. 2003, pp. 31-32, 53
President Theodore Roosevelt carried a handgun for protection, loved hunting, and twice used his State of the Union to promote marksmanship training in all American schools. George W. Bush has gone even further in concrete work to protect Second Amendment rights, and victories last November by Second Amendment candidates in Missouri, Minnesota, Colorado, and other states mean that almost all of President Bush's nominees for the federal judiciary will take office. Although the president has not imposed a Second Amendment litmus test on prospective nominees, there is little doubt that his judges will be considerably more respectful of Second Amendment rights than most Clinton appointees have been.
These judges are not, however, likely be to aggressive innovators, but rather will be careful to follow precedent. For federal courts deciding issues arising under the United States Constitution, state court cases are not binding precedent, but they can provide guidance. So let's take a look at two of most important state court cases on the Second Amendment: the first case to use the Second Amendment to declare a gun control law unconstitutional, and the first case to claim that Second Amendment rights belong to the government, not the people.
In the 1846 case Nunn v. State (1 Ga. 243), the Georgia Supreme Court was faced with a challenge to a recently enacted handgun ban. Because the Georgia state constitution did not have its own right to arms provision, the Georgia Supreme Court turned to the U.S. Constitution's Second Amendment.
The Georgia legislature had banned the sale and possession of knives intended for offensive or defensive purposes, and pistols, except "such pistols as are known and used as horseman's pistols." The law made an exception which allowed the possession, but not the sale, of the banned weapons if the weapon were worn "exposed plainly to view."
The Georgia Supreme Court combined natural rights analysis with the Second Amendment to declare the law unconstitutional. True, the Georgia Constitution had no right to arms; but the absence of an explicit right did not empower the legislature to infringe the fundamental rights of Americans. Since when, inquired the Georgia Court, "did any legislative body in the Union have the right to deny to its citizens the privilege of keeping and bearing arms in defence of themselves and their country?"
The Court wrote that "The language of the second amendment is broad enough to embrace both Federal and State governments nor is there anything in its terms which restricts its meaning" (emphasis in original). Interestingly, anti-slavery activist Lysander Spooner had made a similar argument the year before, in his 1845 book The Unconstitutionality of Slavery, in which he argued that state laws which forbade slaves to possess arms unless their master consented were a violation of the Second Amendment.
The Georgia court kept the introductory clause to the Second Amendment firmly in view: "our Constitution assigns as a reason why the right should not be interfered with, or in any manner abridged, that the free enjoyment of it will prepare and qualify a well-regulated militia, which are necessary to the security of a free State." So: "If a well-regulated militia is necessary to the security of the State of Georgia and of the United States, is it competent for the General Assembly to take away this security, by disarming the people? What advantage would it be to tie up the hands of the national legislature, if it were in the power of the States to destroy this bulwark of defence?" (emphasis in original).
This argument anticipated the U.S. Supreme Court's ruling in the 1886 case Presser v. Illinois. While upholding a particular gun control law (against armed mass parades in public), the U.S. Supreme Court noted that state gun control laws which interfered with the militia of the United States would be unconstitutional.
The Georgia Court described the Second Amendment as an "unlimited right" which meant:
The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying of a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.
The Nunn opinion concluded by holding that the state legislature's ban on concealed carrying was valid because it did not interfere with a citizen's Second Amendment right; but insofar as the law "contains a prohibition against bearing arms openly, it is in conflict with the Constitution, and void. . ." Since the indictment did not specify that Mr. Nunn's weapon was concealed, the charges were quashed.
The Nunn court's approach to natural rights was not unusual for its time; in an 1857 Massachusetts case, Chief Justice Lemuel Shaw — perhaps the most influential state court judge of the period — used principles of "natural justice" to find that the state constitution required the use of grand juries for infamous crimes, despite the absence of any grand jury language in the Massachusetts Bill of Rights. (Jones v. Robbins, 8 Gray 329 [Mass. 1857].) In The Bill of Rights(1998), Yale law professor Akhil Amar analyzes the similarities between Nunn, Jones v. Robbins, and similar rights-protective cases from antebellum state courts.
After the Civil War, Georgia added a right to arms to its state constitution. The final form of the right, adopted in 1877 is: "The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne." Since then, Georgia courts have measured gun control laws against the Georgia state constitution, without relying on the U.S. Second Amendment.
While not all court decisions in the 19th century were as supportive of the Second Amendment as was Nunn, no case from that century ruled that the Second Amendment was anything other than an individual right.*
The notion that the Second Amendment is a power of the government, rather than a right of people, was invented in 1905. In the town of Salina, Kan., James Blaksley was convicted of carrying a pistol while intoxicated. When he appealed his conviction, neither Blaksley nor the prosecutor argued that the Second Amendment did not pertain to individuals, and the matter was therefore never briefed. The government attorney had simply argued that the local law was a reasonable gun control. Nevertheless, the Kansas Supreme Court chose to issue a decision announcing that the Second Amendment, and the right to arms in the Kansas state constitution, did not belong to citizens. (Salina v. Blaksley, 83 P. 619 [Kan. 1905].)
According to the Salina court, the "right to arms" meant only that the state militia, in its official capacity, and while in actual service, could not be disarmed. The Salina court rejected or misdescribed every 19th-century source of authority which it used. (No 18th-century or prior sources were cited.)
The Kansas court rejected the Kentucky case of Bliss v. Commonwealth(12 Ky. [2 Litt.] 90 [1822] [Kentucky state constitution found to forbid a ban on concealed carry].) and the long line of cases holding that in order to secure a well-regulated militia, individual citizens needed to be able to own and practice with guns.
The Salina court quoted a sentence from Joel Bishop's famous legal treatise Statutory Crimes that "the keeping and bearing of arms has reference only to war, and possibly also to insurrections." The quote was accurate, but the Kansas court avoided the language surrounding the quote and other writings by Bishop, which made it clear that Bishop thought the right to arms was "declaratory of personal rights," and therefore belonged to individuals, not the state.
Lastly, the Kansas Court quoted Commonwealth v. Murphy, an 1896 decision which had upheld, against a state constitutional claim, a Massachusetts law (similar to the Illinois law upheld by the U.S. Supreme Court in Presser) which banned mass parades with weapons. The Massachusetts court had written: "The right to keep and bear arms for the common defense does not include the right to associate together as a military organization, or to drill and parade with arms in cities or towns, unless authorized so to do by law." (44 N.E. 138 [Mass. 1896].) But the Massachusetts holding that the right to arms does not authorize individuals to behave in a certain manner is not the same as the Kansas holding that there is no individual right at all.
The Salina Court did not discuss the pre-Civil War history of Kansas, in which the proslavery government's disarmament of individual citizens was denounced nationally as a violation of the Second Amendment by the 1856 national Republican Convention and by Massachusetts radical Republican Charles Sumner, in a fiery speech on the floor of the Senate.
The main basis of the Salina holding is the Kansas Court's textual analysis of the implications of the Kansas arms right provision and of the Second Amendment. The Second Amendment was not at issue in the case, and was simply analyzed as a guide to textual analysis of the Kansas provision. The court made no attempt to explain why the framers of the Kansas Constitution, in the middle of an Article titled "Bill of Rights," suddenly inserted a provision that had nothing to do with rights, but which instead tautologically affirmed a power of the state government: in essence, that the militia is under the complete power of the state government.
Decades later, the Kansas Supreme Court moved away from Salina by declaring a local gun control ordinance unconstitutional. (Junction City v. Mevis, 601 P.2d 1145 [Kan. 1979].) By then, however, Salina's no-right theory had spread far beyond the boundaries of Kansas. The next case to adopt a non-right theory was United States v. Adams, (11 F. Supp. 216 [S.D. Fla. 1935]), in which a federal district court stated that the Second Amendment "refers to the militia, a protective force of government; to the collective body and not individual rights." The Salina on-rights position was widely adopted by federal district and appellate courts in the last three decades of the 20th century, although the Salina case itself was not always acknowledged.
While Attorney General Ashcroft has come under fire for acknowledging that the Second Amendment belongs to the people, he is simply returning to a position held by United States attorneys general before the administration of Lyndon Johnson. The contrary position, promoted by Johnson's attorneys general, and written into Department of Justice policy by the Nixon administration, is founded on a 1905 Kansas case which is itself utterly lacking in logic or precedent. As courts grapple with Second Amendment issues in the 21st century, we may hope that they reject the fraud that began with Salina, and are guided by the spirit of freedom articulated so eloquently in Nunn v. State.
Footnote
* In 1842, a concurring opinion by an Arkansas Supreme Court judge said that the Second Amendment right was merely "an assertion of that general right of sovereignty belonging to independent nations, to regulate their military force." State v. Buzzard, 4 Ark. 18, 32 (1842) (Dickinson, J., concurring). This is the only known document from the 19th century asserting that the Second Amendment does not guarantee a right of individuals to possess firearms. The concurring opinion was not cited by any other 19th-century courts. Even in Arkansas, all subsequent case law regarded the Second Amendment as an individual right. (E.g., Fife v. State, 31 Ark. 455, 456 [1876].)
The issues discussed in the paper are covered in more detail in Kopel's BYU Law Review article The Second Amendment in the Nineteenth Century.
