Summary: U.S. Supreme Court on the Right to Arms

by Fielding Lewis Greaves, CRPA Life Member

In statements relating directly (or indirectly, in the cases of Murdock, Bivens, Carlson, and Hafer) to the Second Amendment right to Bear Arms, the United States Supreme Court has said:

  • In 1856, that the rights American citizens enjoy by reason of their citizenship, rights which "the courts would be bound to maintain and enforce," including the right "to hold public meetings upon political affairs, and to keep and carry arms wherever they went." (Dred Scott v. Sandford, 60 US 691, 705 (1856))
  • In 1876, that the Constitution did not grant a right to arms, but that like the rights of assembly and petition, the right to arms existed long before the Constitution, adding: "Neither is it in any manner dependent upon that instrument for its existence." (United States v. Cruikshank, 92 US 542, 553 (1876))
  • At least seven times in this century - 1908, 1932, 1936, 1963, 1968, 1976, &1992 - that the first eight amendments express fundamental, individual, personal rights guaranteed by the Constitution. (Twining v. New Jersey, 211 US 78 (1908), Powell v. Alabama, 287 US 45 (1932), Grosjean v. American Press Co., 297 US 233 (1936), Gideon v. Wainwright, 372 US 335 (1963), Duncan v. Louisiana, 391 US 166 (1968), Moore v. East Cleveland, 431 US 494 (1976), and Planned Parenthood v. Casey, No. 91-744 (1992); in a concurring opinion Griswold v. Connecticut, 381 US 479 (1965); and by implication in Wolf v. Colorado, 338 US 25 (1949)
  • In 1886, that "the states cannot prohibit the people from keeping and bearing arms." (Presser v. Illinois, 116 US 252 (1886))
  • In 1897, that the right to arms was inherited from our English ancestors, has existed "from time Immemorial," and is one of our "fundamental" rights (Robertson v. Baldwin, 165 US 275 (1897))
  • In 1876, 1886, and 1939 that all able-bodied males are members of the militia (U.S. v. Cruikshank (1876); Presser v. Illinois (1886); U.S. v. Miller, 307 US 174 (1939)). Federal militia law (10 USCS 311 &312) says all able-bodied men aged 17 to 45, with some exemptions (per Section 312), are militia members, and 22 states today already include females equally with males in the militia.
  • In 1939, that when called for militia duty, "these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." (U.S. v. Miller (1939)
  • In 1943, that a license fee levied on the exercise of a Constitutional right is prior restraint, and is a flat tax on exercise of that right, and is therefore unconstitutional (Murdock v. Pennsylvania, 319 US 105 (1943)). this was a First Amendment case on the freedom of press and religion.
  • In 1990, that the term "the people" explicitly as used in the Second and other Amendments, in the Preamble, and elsewhere in the Constitution, means all the individuals who make up our national community. (U.S. v. Verdugo-Urquidez No. 88-1353 (1990))
  • In 1895, that individuals have a right to possess and use firearms for self-defense (Beard v. United States, 256 US 335 (1921))
  • In 1921, that a person who is facing a deadly attack may use lethal force in his self-defense, adding: "Detached reflection cannot be demanded in the presence of an uplifted knife." (Brown v. United States, 256 US 335 (1921)).
  • In 1971 and 1980, that a federal official who deprives a citizen of a right guaranteed by the U.S. Constitution may be held personally liable for damages. (Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 338 (1971) and Carlson v. Green, 446 US 14 (1980))

Reprinted with permission from the July 1995 issue of "The Firing Line", the monthly newsletter of the California Rifle and Pistol Club.