Of the Second Amendment cases, U.S. v. Miller is the most mis-cited (intentionally and otherwise) by the lower courts, not to mention the news media, textbooks and encyclopedias. Some courts have acknowledged the true holdings of Miller , but then simply disregarded them. Though referenced again below, please don't forget to read how some courts deliberately mis-cite Miller .

Presser v. Illinois ruled that the states had the right to strictly regulate private military groups and associations. It also reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon the federal government and not the states. However Presser also stated that setting the Second Amendment aside, the states could not prohibit the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."

This case is often misunderstood or quoted out of context by claiming Cruikshank held the Second Amendment does not grant a right to keep and bear arms. However, the court also said this about the First Amendment. The court explained that these rights weren't granted or created by the Constitution, they existed prior to the Constitution.

U.S. v. Cruikshank involved members of the Ku Klux Klan depriving black victims of their basic rights such as freedom of assembly and to bear arms. The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress. Thus the federal government had no power to correct these violations, rather the citizens had to rely on the police power of the states for their protection from private individuals.

The other five Supreme Court cases directly related to the Second Amendment are: U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), U.S. v. Miller (1939), and Lewis v. U.S. (1980). One the Supreme Court refused to hear, Burton v. Sills (1968), and one concerning the meaning of the Fourth Amendment and "the people," U.S. v. Verdugo-Urquidez (1990), are also discussed. (Links to the Supreme Court decisions are provided at the end of each section.)

Cruikshank was the first Second Amendment case to reach the Supreme Court. This case is occasionally misrepresented as holding the Second Amendment does not protect an individual right to keep and bear arms. Typically, Cruikshank is cited out of context by claiming the court held the Second Amendment "is not a right granted by the Constitution." (For example, see U.S. v. Nelsen, 859 F.2d 1318 [8th Cir. 1988] or the ACLU of Massachusetts on the Second Amendment.)



What you are not told is that the same thing was said about the First Amendment and the Court considered these rights pre-existing, thus they are not granted by the Constitution.

Among the counts against Cruikshank et. al, were charges to deprive two blacks of their First and Second Amendment rights. Regarding the First Amendment charges the court stated:

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government... It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection... The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone... ...For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

Similarly regarding the Second Amendment violations the court wrote:

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..."internal police."

Complete text of U.S. v. Cruikshank, 92 U.S. 542 (1875).

Presser v. People of Illinois (1886)

Herman Presser was found guilty of parading a group of armed men without authorization in the state of Illinois. The defendant claimed Illinois law violated provisions in the Constitution including the Second Amendment. The Court ruled the states have the power to control and regulate military bodies, including drilling and parading activities. The Court re-affirmed that the Second Amendment applied as a limitation only on the national government and commented no further about it. However the court in dicta (a side opinion which does not form part of the judgment for the purposes of precedent [stare decisis] ) wrote:

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.

Complete text of Presser v. Illinois, 116 U.S. 252 (1886).

Miller v. Texas (1894)

Franklin Miller, convicted of murder, on appeal, claimed his Second and Fourth Amendment rights had been violated under the Fourteenth Amendment. The court upholding the conviction, reaffirmed Cruikshank v. U.S. and stated: "And if 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." In other words the court wouldn't even consider whether Miller's rights had been violated under the Fourteenth Amendment because he had not filed such a claim in his original trial.

Complete text of Miller v. Texas, 153 U.S. 535 (1894).

U.S. v. Miller (1939)

Frank Layton and Jack Miller were charged with violating the 1934 National Firearms Act, which regulated and taxed the transfer of certain types of firearms, and required the registration of such arms. The Miller court held the following:



1) The National Firearms Act was not an unconstitutional usurpation of police power reserved to the states.



2) "In the absence of evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length,' which is the subject of regulation and taxation by the National Firearms Act of June 26, 1934, has some reasonable relationship to the preservation or efficiency of a well-regulated militia, it cannot be said the the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument, or that the statute violates such constitutional provision."



3) "It is not within judicial notice that a shotgun having a barrel of less than 18 inches in length is any part of the ordinary military equipment or that its use could contribute to the common defense."



4) "The Second Amendment must be interpreted and applied with a view to its purpose of rendering effective the Militia."

As noted in the Summary section, Miller has often been mis-cited. Note that in the entire text of Miller, neither the words "state militia" nor "National Guard" are to be found.

Regarding item 4) above, the Miller court defined the Militia as the following:

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.

while far from clear, this passage is not inhospitable to the view that it is a private individual right to keep and bear arms which is protected. For only if there existed such a "body of citizens" in possession of "arms supplied by themselves," could they, should the need arise, be "enrolled for military discipline" to act "in concert for the common defense." (Barnett R., and Kates D., Under Fire: The New Consensus on the Second Amendment, Emory Law Journal [1996].)

This phrase does not conflict with the preceding sentence in the passage from Miller, for "enrollment" in the militia does not imply or depend on actual military service or training. Under the first Militia Act, for example, those subject to militia duty were enrolled by the local commanding officer, and then notified of that enrollment by a non-commissioned officer. § 1, 1 Stat. 271, 271 (1792). Whether the members carried out their duties or not, they were still "enrolled." Under the statute in effect at the time Miller was decided (as in the statute in force today), enrollment was accomplished by the operation of law alone, and most members of the militia were probably not even aware that they belonged to such a body. National Defense Act, ch. 134, § 57, 39 Stat. 166, 197 (1916); 10 U.S.C. § 311(a) (1994). Thus, neither the Miller opinion nor any of the various militia statutes can be used to shore up the insupportable notion that the Second Amendment protects only a right to serve in the National Guard. (Lund, Nelson, The Past and Future of the Individual's Right to Arms, [Footnote 54], Georgia Law Review [1996].)

The Supreme Court reversed and remanded the case back to the district court, giving the defendants a chance to provide evidence that a short-barrelled shotgun could contribute to "the efficiency of a well-regulated militia." (The Court was apparently unaware of the use of short-barreled shotguns in trench warfare during World War I. [http://nraila.org/FactSheets.asp?FormMode=Detail&ID=17] )

Note, Miller only required evidence that the weapon contribute to the efficiency of a well-regulated militia. The Court never said the defendants had to belong to a well-regulated militia. In other words the Miller case interpreted the Second Amendment to mean one has the right to own militia type weapons.

The defendants had not appeared for their Supreme Court hearing and they had no legal representation as well! Miller was murdered in April of 1939 (one month before the Court's decision). After the decision, Layton pleaded guilty to transporting a sawed-off shotgun, and received five year's probation. [http://rkba.org/research/miller/Miller.html] ) And so even though the case had been remanded, it was never tried in the lower courts.

In its brief the U.S. government argued the "collective rights" theory. (See GunCite's rebuttal to the U.S. government's brief.)

More importantly please read how the Miller case has been mis-cited by some federal courts and how some rulings are simply based on judges own feelings, desires, and values rather than the rule of law and valid evidence.

Though some circuit courts have adopted a "collective rights" theory of Miller (see the link in the previous paragraph), the first circuit court to analyze Miller held a weapon centric view of the case. However, it did not feel "that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases" because it would "in effect hold that the limitation of the Second Amendment is absolute." (Cases v. U.S., 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).)

Many years later, Justice Hugo Black (one of the judges who decided Miller), commenting on the Second Amendment said,

Although the Supreme Court has held this Amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute. (Black, Hugo, The Bill of Rights, New York University Law Review, Vol. 35, April 1960.)

A criticism of the Miller decision itself.

Complete text of U.S. v. Miller, 307 U.S. 174 (1939).

Lewis v. U.S. (1980)

Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 forbids the possession of firearms by a convicted felon. Lewis, the petitioner, was convicted of a felony in a 1961 state court "for breaking and entering with intent to commit a misdemeanor". In 1977, in Virginia, Lewis was charged with receiving and possessing a firearm in violation of the above act. Lewis, claimed his latest conviction violated the Fifth and Sixth Amendments because he had no counsel present during his 1961 trial.

The court upheld Lewis' conviction, holding:

(a)...the fact that there are remedies available to a convicted felon - removal of the firearm disability by a qualifying pardon or the Secretary of the Treasury's consent, as specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding - suggests that Congress intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose to keep firearms away from persons classified as potentially irresponsible and dangerous. (b) The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment, since Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. And use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by criminal sanction, is not inconsistent with Burgett v. Texas, 389 U.S. 109; United States v. Tucker, 404 U.S. 443; and Loper v. Beto, 405 U.S. 473.

These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to [445 U.S. 55, 66] the preservation or efficiency of a well regulated militia").

Note, the Court restated the Miller court's focus on the type of firearm.

The Court also commented it was customary to deny convicted felons the right to vote, hold union office, or practice medicine.

Complete text of Lewis v. U.S., 445 U.S. 55 (1980).

Burton v. Sills (1985)

From Stephen Halbrook's "That Every Man be Armed: The Evolution of a Constitutional Right":

A...striking erosion of the right to possess arms was exemplified in the New Jersey case of Burton v. Sills (1968). It originated when members of sportsman clubs and gun dealers brought an action to declare unconstitutional the state's gun-control law, which imposed restrictive requirements. Conjuring up an image of "political assassinations, killings of enforcement officers, and snipings during riots," the court expressed exaggerated fears of a revolution. The New Jersey Supreme Court restricted the definition of militia to "the active, organized militias of the states," that is, the National Guard. The court's very use of these adjectives to modify the word "militia" ignores the constitutional militia comprised of all persons capable of bearing arms. The Burton opinion simply fails to provide scholarly, historical, and analytical treatment of the subject, as indeed primarily only the antebellum state opinions do provide.

U.S. v. Verdugo-Urquidez (1990)

This case dealt with whether nonresident aliens, located in a foreign country, were entitled to Fourth Amendment rights. The Court ruled they were not. In discussing the meaning of "the people" in the Fourth Amendment, the Court commented:

" '[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' 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') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). 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. "

(National Rifle Association, Fact Sheet: Federal Court Cases Regarding the Second Amendment).

However, the Court didn't discuss whether the militia clause is a limiting factor, and how it might restrict the people's right to keep and bear arms. Moreover, in U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992), the Eighth Circuit stated:

"Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265 ... Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias. This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia ... Whether the 'right to bear arms' for militia purposes is [Page 24] 'individual' or 'collective' in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia. Id. at 1020."

On a concluding side-note:

"Interestingly, the majority opinion's analysis of 'the people' protected by the Bill of Rights was an elaboration of a point made by the dissenting opinion from the Ninth Circuit Court of Appeals, when the majority had held that Mr. Verdugo was entitled to Fourth Amendment protections. When the Verdugo case went to the Supreme Court, the Solicitor General's office quoted from Ninth Circuit's dissent, but used ellipses to remove the dissent's reference to the Second Amendment. The Supreme Court majority, of course, put the Second Amendment back in."

--- The Supreme Court's Thirty-five Other Gun Cases. By David B. Kopel. Forthcoming in the St. Louis University Public Law Review.

Johnson v. Eisentrager (1950)

The Supreme Court held that enemy combatants were not entitled to Fifth Amendment Due Process rights, because if that were the case, they would also be entitled to “freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against ‘unreasonable’ searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.” (source)

Complete text of Johnson v. Eisentrager, 339 U.S. 763, 784 (1950).