The Second Amendment as an Individual Right

From: Lee, Philip F^** Sent: Tuesday, May 09, 2000 10:17 AM To: 'OAG@oag.state.md.us' Subject: Re: The Second Amendment as an Individual Right Sir, Certain as I am that you would not wish it to be thought that you intentionally deceived your audience the other night when you spoke to AGC Baltimore, I wish to draw your attention to a misstatement you made. There you asserted no court has held the Second Amendment to the U. S. Constitution preserves an individual right to keep and bear arms. I draw your attention to U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999) which is one of several cases where Federal Courts (including the Supreme Court) have held the Second Amendment as an individual right of the people to keep and bear arms. When you read that case you will see citations where the Supreme Court has held that use of the term "the people" is the same in the Second Amendment as in the other amendments and, hence, refers to individuals.  For example, the fourth amendment protects individuals against arbitrary search and seizures and in that amendment "the people" is used. The Emerson case may be found on the Web at http://www.guncite.com/court/fed/46fsupp2d598.html. Also, you should be aware of United States v. Cruikshank, 92 U.S. 542 (1876) (see http://www.guncite.com/court/fed/sc/92us542.html) In that case Mr. Chief Justice Waite delivered the Court's opinion which included the statements:
	The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the constitution or laws of the United States, except such as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States. . . . The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than 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 what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.
This decision makes clear that, when the U. S. Constitution was adopted in the 1790's, the individual rights possessed by the people to keep and bear arms were not yielded by the people. Even anti-gun-rights scholars such as Professor Laurence Tribe have recognized the individual nature of the Second Amendment protection of those rights (see N.Y. Times 34, p. 3, May 30, 1999). In fact, even without the Second Amendment, Cruikshank makes clear that the Constitution gives the national government no power to disarm the people. One might argue (that is the gist of what the Court upheld in Cruikshank) that any state (e.g. Maryland) may restrict those rights and not violate the Constitution (such arguments were used in early Federal court cases concerning the Second Amendment and other Bill of Rights cases). The principal basis of early Supreme Court rulings in the area of Bill of Rights was set by Chief Judge Marshall when he held that the scope of applicability of the U.S. Constitution was only to the national government except when explicitly stated in the Constitution that a provision applied to the states. As you know, the Fourteenth Amendment and decisions flowing from that amendment have overturned Marshall's interpretation and applied provisions of the Bill of Rights to state governments as individual rights. In modern times, the Supreme Court has held that the Constitution's prohibition against unreasonable searches and cruel and unusual punishment apply to state as well as national government. Since "the people" in those other Bill of Rights clauses is the same usage as in the Second Amendment, it would be difficult to hold that there was not an individual right to keep and bear arms and to do so would eviscerate the Fourteenth Amendment itself. Since the Court has noted "the people" means the same throughout the Constitution already, the individual right to bear arms should receive the same protection against State regulation. Such state regulations have already been limited by the US Supreme Court decision in Presser v. Illinois, 116 U.S. 252, 265 where the Court held that states may not deny the national government a well regulated militia which is necessary to the security of a free State. In that decision, the Court stated "the militia is all citizens capable of bearing arms." The Court noted that:
	It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as 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.
So the U. S. Constitution provides limits on what the states may do concerning the people's rights to arms even without the Second Amendment. A ban on the right of the people to keep and bear arms which prevented them from performing their duty to the national government would be contrary to Presser v. Illinois. Nor can the general government waive that duty, since a power to waive the duty is not among the enumerate powers of the United States. Lastly, let me point to Maryland's special circumstance which makes many of its limits on arms of questionable validity under the State Constitution. Maryland's Constitution, Declaration of Rights, Art. 3 specifically incorporates the U. S. Constitution into the Maryland Constitution. That clause reads:
	The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding."
Specifically, that article renders supreme the provision of the U. S. Constitution that "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." For Article 3 states that the judges of this state shall be bound by provisions of the U. S. Constitution. That meaning cannot be interpreted as applying to the interpretation of the U. S. Constitution in the Federal context (such interpretations is for Federal Courts). Rather, this provision makes it necessary for the U. S. Constitutional provisions to be interpreted as binding on the Maryland Government. Obviously, this is more than stating that the state law shall conform to the Federal Constitution. The wording is precise: "The Constitution of the United States ... shall be the Supreme Law of the State; and the Judges of this State ... shall be bound thereby .... No longer can a Maryland court say that the Second Amendment applies only to the national government. Maryland's Constitution has adopted the wording of the Federal Constitution. It must interpret the Second Amendment of the U.S. Constitution in the context of application within the State Constitution. That part of the U. S. Constitution now bears on the State Constitution and in that context means that the State government may not disarm the people. I am sure that it was ignorance that caused your misstatement about the individual right to keep and bear arms last night and that you will now begin to do your duty to protect the civil rights of the peaceable citizens of Maryland to keep and bear arms as your oath of office requires you to do. Sincerely, Philip F. Lee ^** Since this message was sent to Attorney General Curran, the Fifth Circuit Court of Appeals reviewed the Emerson case and confirmed that the Second Amendment addressed an individual right – see: http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm. Attorney General J. Joseph Curran, Jr. has also rendered an opinion which defines the militia in a historically correct manner. It could be argued that this definition of militia and Presser v. Illinois, 116 U.S. 252, 265 combine to assure Marylander’s right to arms – See: "81 Opinions of the Attorney General 1996", [Opinion No. 96-028 (September 13, 1996)]. Specifically, AG Curran’s opinion contains under II The Governor and Militia Training the text:
	Article 65, §5 provides for the militia's organization by dividing it into two classes, the organized militia and the unorganized militia. 2 The organized militia consists of the Maryland National Guard (“MDNG”), the MDDF, and the reserve militia (Minute Men). 3 Subject to certain exceptions, the “unorganized” militia consists of “all able-bodied citizens of the State,” whom the Governor may order into State service if troop strength in the organized militia is insufficient to deal with a crisis. See Article 65, §§1, 2, and 8.
Links to all opinions from 1996 may be found at the following address: http://www.oag.state.md.us/Opinions/1996/96index.htm This specific opinion has link: http://www.oag.state.md.us/Opinions/1996/96-028.pdf