SUPREME COURT CASES ON SECOND AMENDMENT/
RIGHT TO
KEEP AND BEAR ARMS
Amendment II: 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.
1998: MUSCARELLO v. UNITED STATES - In the dissent on defining "carries a firearm", several
Justices note that "Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and
bear Arms"). . . ."
1998: SPENCER v. KEMNA - In his dissent, Justice Stevens noted that a conviction
"may result in tangible harms such as imprisonment, loss of the right to vote or to bear arms. . . ."
1997: PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA v. UNITED STATES Brady Background Check overturned as unfunded mandate in violation of Tenth Amendment. Justice Thomas
requests a Second Amendment case.
1995: U.S. v. LOPEZ - Gun-Free School Zones Overturned as Congress exceeded its powers.
1994: ALBRIGHT v. OLIVER - The court quoted POE v. ULLMAN on how the right to keep and bear
arms and other rights are to have, "freedom from all substantial arbitrary impositions and purposeless
restraints" under the Fourteenth Amendment.
1992: PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY - The court quoted POE v.
ULLMAN on how the right to keep and bear arms and other rights are to have, "freedom from all substantial
arbitrary impositions and purposeless restraints" under the Fourteenth Amendment.
1990: PERPICH v. DEPARTMENT OF DEFENSE - National Guard is NOT the militia but part of Armed
Forces. Militia divided into "organized" and "unorganized".
1990: UNITED STATES v. VERDUGO-URQUIDEZ - The "people" under the First, Second, Fourth, Ninth
& Tenth Amendments are individuals, not the States.
1980: LEWIS v. UNITED STATES - This case notes in a footnote that prohibiting felons from possessing
firearms does not violate the Second Amendment.
1977: MOORE v. EAST CLEVELAND - The court
quoted POE v. ULLMAN on how the right to keep and bear arms and other rights are to have, "freedom from
all substantial arbitrary impositions and purposeless restraints" under the Fourteenth Amendment.
1973:
ROE v. WADE - The court quoted POE v. ULLMAN on how the right to keep and bear arms and other
rights are to have, "freedom from all substantial arbitrary impositions and purposeless restraints" under the
Fourteenth Amendment.
1972: ADAMS v. WILLIAMS - In the dissent, Justices Douglas & Marshall took the portions of U.S. v.
MILLER toward preservation of the Militia, but noted that some controls would be Constitutional, and
preferable to "watering-down" the Fourth Amendment in this case.
1972: LAIRD v. TATUM - The court
quoted Chief Justice Warren on how "fear and concern of military dominance" gave rise to the Second and
Third Amendments and a decentralized militia." The right to keep and bear arms is also listed with other
individual rights.
1969: BURTON v. SILLS - U.S. Supreme Court refused to hear a challenge to a STATE licensing law. Even
today, the Second Amendment is not applied to the states.
1968: DUNCAN v. LOUISIANA - Court
quotes Senator Howard, who introduced the Fourteenth Amendment for passage in the Senate, discussing why
to pass the Amendment. Sen. Howard included "the right to keep and to bear arms" with other individual
rights.
1965: GRISWOLD v. CONNECTICUT - In a case deciding that Connecticut's birth-control law
unconstitutionally intrudes upon the right of marital privacy, Justice Goldberg writes a concurring opinion
that, "I have not accepted the view that "due process" as used in the Fourteenth Amendment incorporates all
of the first eight Amendments ... I do agree that the concept of liberty protects those personal rights that are
fundamental, and is not confined to the specific terms of the Bill of Rights." As in other courts, the Second
Amendment is listed with personal rights, and not distinguished or excluded as only a collective right.
1965: MARYLAND v. U.S. - The court found that the National Guard is the modern militia guaranteed to the
states under Article 1, Section 8 of the U.S. Constitution but does not mention what is the Militia under the
Second Amendment. See also HOUSTON v. MOORE.
1964: BELL v. MARYLAND - In a footnote on
Black Codes, the court noted how "Negroes were not allowed to bear arms or to appear in all public places".
1964: MALLOY v. HOGAN - The court notes in a footnote that the Second Amendment is one of the rights
not yet held applicable to the states through the 14th amendment.
1963: GIDEON v. WAINWRIGHT - The court found that Amendments that are, "fundamental safeguards
of liberty" are immune from both federal and state "abridgment" under the "Due Process Clause of the
Fourteenth Amendment." GROSJEAN v. AMERICAN PRESS CO. and POWELL v. STATE OF
ALABAMA are both cited.
1961: KONIGSBERG v. STATE BAR - The court found that Free Speech and other individual rights are
based on rights "transplanted from English soil." The court went on to find Free Speech to be in unqualified
terms and "In this connection also compare the equally unqualified command of the Second Amendment: 'the
right of the people to keep and bear Arms shall not be infringed.'"
1961: POE v. ULLMAN - Lists the "right to keep and bear arms" with "the freedom of speech, press, and
religion;" and "the freedom from unreasonable searches and seizures." The courts seemless aproach indicates
that all are individual rights.
1958: KNAPP v. SCHWEITZER - The court rejected the Fifth Amendment as applying to the States under
the Fourteenth Amendment. "By 1900 the applicability of the Bill of Rights to the States had been rejected in
cases involving claims based on virtually every provision in the first eight Articles of Amendment." The
Court cited U.S. v. CRUIKSHANK for both the First and Second Amendments.
1957: GREEN v.
UNITED STATES - Mentions how President Taft stated that the Philippine people secured "all the
guaranties of our Bill of Rights except trial by jury and the right to bear arms." See also KEPNER v. U.S. and
TRONO v. U S.
1950: JOHNSON v. EISENTRAGER - The Court found that the Fifth Amendment doesn't apply to alien
enemies on occupied alien territory. The court listed the Second Amendment as a civil-right along with the
First, Fourth, Fifth and Sixth Amendments. The Supreme Court also uses the term "werewolves."
1947: ADAMSON v. PEOPLE OF STATE OF CALIFORNIA - Justice Black in his dissent notes the
many rights not incorporated under the Fourteen Amendment, including the Eighth Amendment, Seventh
Amendment, and the Second Amendment's right of the people to keep and bear arms citing PRESSER v.
STATE OF ILLINOIS.
1939: U.S. v. MILLER - Militia-type weapons covered under Second Amendment/Militia composed of
civilians primarily and bearing their own firearms. One Summary of Miller Documents.
1936: GROSJEAN v. AMERICAN PRESS CO. - Citing the findings from POWELL v. STATE OF
ALABAMA , the court wrote, "We concluded that certain fundamental rights, safeguarded by the first eight
amendments against federal action, were also safe-guarded against state action by the due process of law
clause of the Fourteenth Amendment...."
1934: HAMILTON v. REGENTS OF THE UNIVERSITY OF
CALIF. - School's requirement for military training for all male students is upheld as constitutional, citing
"duty" to "support and defend government against all enemies."
1932: POWELL v. STATE OF ALABAMA - This fourteenth amendment case quotes from TWINING v.
STATE OF NEW JERSEY about, "the personal rights safeguarded by the first eight Amendments against
national action may also be safeguarded against state action...."
1931: U.S. v. BLAND - A woman's petition for Naturalization is rejected because she is not willing to "bear
arms in defense of the U.S." See also UNITED STATES v. SCHWIMMER & U.S. v. MACINTOSH.
1929: UNITED STATES v. SCHWIMMER - A woman's petition for Naturalization is rejected because she
was not willing to "take up arms" in defense of the U.S. The court mentioned the right to keep and bear arms
and stated, "Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the
country's defense detracts from the strength and safety of the government."
1915: STEARNS v. WOOD - An officer tried to use the Second Amendment, Tenth Amendment and other
Constitutional protections against limits on promotions in the National Guard, but the court refused to hear his
arguments.
1908: TWINING v. STATE OF NEW JERSEY - The Court concluded that the privilege
against self-incrimination (Fifth Amendment) wasn't incorporated into the Fourteenth Amendment, nor are
other personal rights including the 7th Amendment, "and the right to bear arms, guaranteed by the 2d
Amendment" citing PRESSER v. STATE OF ILLINOIS
1905: TRONO v. U.S. - In questioning whether an action of the Supreme Court of the Philippines, then a
U.S. possession, violated an act of Congress applying most of the Bill of Rights to the Philippines, the court
noted that the Act omitted "the provisions in regard to the right of trial by jury and the right of the people to
bear arms, . . . . " See also KEPNER v. U.S.
1904: KEPNER v. U.S. - Noted that the act of Congress regarding rights in the Philippines forget several
Amendments, including the "the right of the people to bear arms" among several others. See also TRONO v.
U.S.
1900: MAXWELL v. DOW - Cited PRESSER v. STATE OF ILLINOIS on how "all citizens capable of
bearing arms constitute the reserved military force of the national government".
1900: U S v. ELDER - The court repeatedly cited Government officials in the 1800s that provided "notice
that they should keep arms sufficient for their defense."
1900: THE PANAMA - The court recognized that a ship carries guns and cannons for "self-defense" and
quoted from Portalis, "defense is a natural right, and means of defense are lawful in voyages at sea, as in all
other dangerous occupations of life". However, this did not apply to enemy property like the Panama.
1897: ROBERTSON v. BALDWIN - The court notes that each of the "Bill of Rights" have limitations on
those rights, including the freedom of speech and of the press; the right of the people to keep and bear arms;
double jeopardy, etc.
1896: BROWN v. WALKER - In his dissent, Justice Field quoted the counsel for the appellant: "The
freedom of thought, of speech, and of the press; the right to bear arms; exemption from military dictation;. . . .
. -- are, together with exemption from self-crimination, the essential and inseparable features of English
liberty."
1894: MILLER v. TEXAS - Court refused to expand the Second and Fourth Amendment to the States since
it was not brought up first during the trail. A very unfortunate trial mistake.
1892: LOGAN v. U.S. - The Court was faced with a question about the scope of the conspiracy statute
involved in U.S. v. CRUIKSHANK. The court found that the First and Second Amendments under
Cruikshank are not granted by the Constitution, but were both already existing and only a limitation on
Congress. This case failed to recognize the Fourteen Amendment (Equal Protection - 1868).
1886: PRESSER v. STATE OF ILLINOIS - Second Amendment only a limitation on Congress, not the
States. This case failed to recognize the Fourteen Amendment (Equal Protection - 1868).
1875: U.S. v. CRUIKSHANK - First and Second Amendment rights only limitation on Congress. These
rights are not granted by, nor in any manner dependent, upon the Constitution. This case failed to recognize
the Fourteen Amendment (Equal Protection - 1868).
1866: EX PARTE MILLIGAN - The court
discounted the notion that The Fourth, Fifth, and Sixth Amendments were limitations on "war-making"
powers. Similarly, the right of the people to keep and bear arms would not "hinder the President from
disarming insurrectionists, rebels, and traitors in arms while he was carrying on war against them."
1857: DRED SCOTT v. SANDFORD - Slavery kept legal based in part on the fear that freed slaves could
"carry arms wherever they went" under the Second Amendment.
1844: THE MALEK ADHEL - A piracy case where the court noted that "All vessels going to the Pacific
carry arms for defence."
1820: HOUSTON v. MOORE - This case seems to distinguish the Militia
powers under Article 1, Section 8 of the U.S. Constitution and "the right to keep and bear arms." Future
decisions only mention one provision or the other. See also MARYLAND v. U.S.
1803: MARBURY v. MADISON - The court found that the Constitution is the "superior, paramount law" of
the land and that "a law repugnant to the constitution is void; and that courts, as well as other departments, are
bound by that instrument."