|
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)
Defendant moved to suppress evidence from a warrantless search in Mexico on the ground that the Fourth Amendment only applies to government conduct within the United States against U.S. citizens or aliens with significant voluntary connection with the U.S. The Court denied the motion, noting in dicta that "the people" protected by the First, Second, Fourth, Ninth, and Tenth Amendments are persons who are part of the "national community or who have developed sufficient connection with this country to be considered part of that community." Id. at 265.
Lewis v. United States, 445 U.S. 55 (1980)
Defendant Lewis was convicted in state court of a felony
violation which was never overturned and for which he did not
receive a pardon. Subsequently, he was charged under a section
of the federal Omnibus Control and Safe Streets Act (then codified
at 26 U.S.C. § 1202(a)(1)), which makes it a crime for a convicted
felon to knowingly receive, possess or transport a firearm. Lewis
challenged the federal conviction, alleging his prior state
conviction was constitutionally invalid. The District Court
convicted Lewis and the Fourth Circuit Court of Appeals affirmed.
The Supreme Court granted certiorari, and held Lewis
could not raise the constitutionality of the prior conviction as a
defense to the new crime and the absence of such a defense from the
federal law did not render that law violative of any constitutional
protections. Id. at 65.
In addressing defendant’s equal protection challenge to the
federal law, the court found the statutory distinction between
convicted felons and all others was valid because there was a
rational basis for the distinction, noting that no more strict test
was required because the statute prohibiting possession of firearms
by a felon did not implicate any constitutionally-protected rights,
citing United States v. Miller, 307 U.S. 174, 178 (1939), (the Second
Amendment guarantees no right to keep and bear a firearm unless the
use or possession of the firearms has some reasonable relationship
to the preservation or efficiency of a well-regulated militia).
Lewis, 445 U.S. at 65-66.
United States v. Miller, 307 U.S. 174 (1939)
Defendants were charged with the crime of transporting and
possessing an unregistered sawed off shotgun, in violation of the
National Firearms Act, 26 U.S.C. § 1132, et seq. They
challenged the indictment and the trial court sustained the
demurrer, dismissing the charges. Id. at 177. The
government appealed directly to the Supreme Court.
The Supreme Court reversed the trial court, holding the
Second Amendment provided defendants no protection against the
indictment. After reviewing the language and history of the
Second Amendment, the Court concluded that the “obvious purpose”
of the Second Amendment was to “assure the continuation and render
possible the effectiveness” of the state militia. Id.
at 178. Because defendants had offered no evidence that their
possession or use of the shotgun had “some reasonable relation to
the preservation or efficiency of a well-regulated militia,”
their conduct was not protected by the Second Amendment. Id.
Miller v. Texas, 153 U.S. 535 (1894)
Dismissed defendant’s post-conviction challenge to a Texas law
prohibiting the carrying of a dangerous weapon on a public street.
Defendant sought review by the Supreme Court on several
grounds, including that the Texas law denied him the “privileges
and immunities of citizenship” because it violated his alleged
Second Amendment “right to bear arms.” Id. at 538.
The Court held the Second Amendment had no application to the
challenged state proceedings because the amendment constrains only
the federal government and has no “reference whatever to
proceedings in state courts.” Id.
Presser v. Illinois, 116 U.S. 252 (1886)
Presser was indicted in Illinois state court for violating those
sections of the state law making it a misdemeanor for any body of
men to associate as a military company of organization, except as
part of the organized state militia, unless they obtain a license
from the Governor. Presser moved to quash the indictment,
alleging that the laws at issue violated numerous constitutional
provisions, including the Second Amendment. After the state
courts denied his challenge, he sought review in the Supreme
Court.
Relying on United States v. Cruikshank, 92 U.S. 542 (1875), the Court rejected Presser’s Second Amendment challenge on the grounds that the Second Amendment constrains only federal action and had no applicability to the state law at issue. The Court also rejected Presser’s claim that the state law denied him the "privileges and immunities" of citizenship because it prevented him from associating with others as an unorganized militia. Presser, 116 U.S. at 267. In addressing this issue, the Court specifically held that "[m]ilitary organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers." Id. at 267.
United States v. Cruikshank, 92 U.S. 542 (1875)
Struck as deficient an indictment under which two defendants were
found guilty of “banding” together with intent to injure,
oppress, and threaten certain citizens of African descent in their
exercise of rights guaranteed by the constitution or laws of the
United States. Id. at 544. The Supreme Court identified two counts of the
indictment that accused the defendants of violating the alleged
victims’ “right to keep and bear arms for a lawful purpose,”
and explained that these counts were deficient:
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 means no more than 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 . . . .
Id. at 553 (citation omitted).
FIRST CIRCUIT
Court of Appeals
United States v. Coccia, 446 F.3d 233 (1st Cir. 2006)
Defendant appealed a conviction for possession of a firearm in violation of 18 U.S.C. § 922(g)(8), which outlaws possession of a firearm by anyone who is subject to a domestic restraining order. The court rejected the defendant’s claim that the statute violated the Second Amendment, noting that "no circuit court which has addressed the question has found 18 U.S.C. § 922(g)(8) unconstitutional under the Second Amendment." Id. at 243 (quoting United States v. Lippman, 369 F.3d 1039, 1044 (8th Cir. 2004)).
Gardner v. Vespia, 252 F.3d 500 (1st Cir. 2001)
Plaintiff’s application to purchase a handgun was denied after defendant police chief concluded that plaintiff was ineligible to receive or possess a firearm under 18 U.S.C. § 922(g)(9). Plaintiff filed a civil rights action, alleging that the defendant’s actions violated the Second Amendment. The court rejected this argument, relying on United States v. Miller, 307 U.S. 174 (1939) (holding that the Second Amendment does not invalidate legislative limitations on firearms that do not have a reasonable relationship to a well-regulated militia). Thus, the court held that plaintiff’s constitutional rights had not been violated, even if the defendant had erroneously determined that plaintiff was ineligible to purchase a firearm.
United States v. Friel, 1 F.3d 1231 (1st Cir. 1993)
Affirmed defendant’s conviction and rejected defendant’s
challenge under the Second Amendment to his conviction for
possession of firearms by a person convicted of a felony in
violation of
18
U.S.C. §§ 922(g)(1) and
924(a)(2). Held that
the prohibition in section 922(g)(1) does not violate the
constitutional right to bear arms because the Supreme Court
“plainly has held that the Second Amendment . . . applies only to
firearms having a ‘reasonable relationship to the preservation or
efficiency of a well regulated militia’ . . . .” Id. at 1232-33 (citations omitted).
Thomas v. Members of City Council, 730 F.2d 41 (1st Cir. 1984)
Affirmed decision by trial court that the denial of plaintiff’s
application for a permit to carry a concealed handgun by the City of
Portland, Maine did not violate plaintiff’s constitutional rights
under the Second Amendment because “[e]stablished case law makes
clear that the federal Constitution grants [plaintiff-] appellant no
right to carry a concealed handgun.” Id. at 42 (citations omitted).
United States v. Kozerski, 518 F. Supp. 1082 (D.N.H. 1981), aff’d, 740 F.2d 952 (1st Cir. 1984), cert. denied, 469 U.S. 842 (1984)
Defendant, following a felony conviction in Massachusetts, was
hired by the local police department in Swanzey, New Hampshire.
Following a complaint against him, a records check revealed his
prior conviction. He was then prosecuted as a felon in
unlawful possession, under federal law. He challenged the law
as unconstitutional under the Second Amendment. The court
rejected defendant’s challenge on the “well-established”
grounds that (1) “the Second Amendment is not a grant of a right
but a limitation upon the power of Congress and the national
government” and (2) “the right guaranteed by the Second
Amendment is a collective right to bear arms rather than an
individual right, and has application only to the right of the state
to maintain a militia and not the individual’s right to bear
arms.” Id. at 1090 (citations omitted). The
district court found defendant’s proposed analogy between himself
as a rural police officer required to carry a firearm and the
members of the militia described in the Second Amendment as "totally
without legal merit." Id.
Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom. Velasquez v. United States, 319 U.S. 770 (1943)
Affirmed defendant’s conviction under the Federal Firearms Act, rejecting defendant’s Second Amendment challenge to the constitutionality of sections of the Act, under which he was convicted of unlawfully transporting and receiving a firearm and ammunition. The court reasoned that "[t]he right to keep and bear arms is not a right conferred upon the people by the federal constitution," but rather whatever such rights people may have depends upon local legislation, which the federal government may not then infringe. Id. at 921. The court also held that while the statute curtails the right of individuals to keep and bear arms, it does not violate the Second Amendment because the only function of that provision is, as stated in United States v. Miller, 307 U.S. 174 (1939), to limit the federal government from interfering with "the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia." Id. at 922 (internal quotation marks and citation omitted).
The First Circuit went on to note that the Second Amendment did not apply where there was no evidence that appellant was or ever had been a member of a military organization even though the weapon at issue was capable of military use or familiarity with it might be regarded as valuable in training a person to use a comparable weapon of military type and use. Id. at 922-23.
District Courts
Bloomquist v. Albee, 421 F.Supp. 2d 162 (D. Me. 2006)
Plaintiff brought suit against a county and several law enforcement officers for an alleged policy, practice, and custom of conspiring to deprive male citizens of their individual Second Amendment rights, after plaintiff’s firearms were confiscated when he was served with a domestic violence protective order. The court dismissed plaintiff’s claim against the county, since he failed to provide "record evidence to support a reasonable inference that there is a custom or policy." Id. at 182.
Stanley v. Neilen, No. 02-10287-RWZ, 2003 U.S. Dist. LEXIS 5400 (D. Mass. Mar. 31, 2003) (unpublished decision)
Plaintiff applied for a renewal of
his Class A unrestricted license to carry firearms for general
protection purposes. However, defendant police chief issued
plaintiff a license restricted to carry firearms for the purposes of
hunting and target shooting only. Plaintiff filed suit alleging,
among other things, that the denial of his license to carry firearms
for other purposes violated his constitutional rights under the
Second Amendment. The court relied on Gardner v. Vespia, 252 F.3d 500 (1st Cir. 2001) in holding that the Second Amendment confers no
absolute right to bear arms.
United States v. Miles, 238 F. Supp. 2d 297 (D. Me. 2002)
Defendant was charged with making false statements in connection with two attempts to purchase long guns in violation of 18 U.S.C. § 922(a)(6). Defendant raised a constitutional challenge specifically in relation to 18 U.S.C. § 922(g)(8), which prohibits a person under specified court orders from purchasing a firearm. Defendant was subject to a protective order and was therefore a prohibited person under 18 U.S.C. § 922(g)(8). Relying on United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), defendant argued that this prohibition infringed upon a fundamental right to bear arms under the Second Amendment, requiring the court to subject the provision to strict scrutiny. The court determined that regardless of whether the Second Amendment confers a fundamental individual right, 18 U.S.C. § 922(g)(8) passes strict scrutiny because it is narrowly tailored to support the compelling governmental interest in preventing harm against family members by firearms in connection with domestic violence. Furthermore, defendant had adequate notice of any restriction on his right to possess firearms.
United States v. Milheron, 231 F. Supp. 2d 376 (D. Me. 2002)
Defendant moved to dismiss an indictment against him for possessing a firearm after having been committed to a mental institution in violation of 18 U.S.C. § 922(g)(4). Relying on United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), defendant argued that his individual rights under the Second Amendment had been infringed without sufficient due process. The court stated that only the Fifth Circuit has found that the Second Amendment confers an individual right; all other Circuits facing the issue (including the First Circuit) have relied on the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939) to endorse a collective right to bear arms arising in connection with the preservation of a well-regulated militia. Here, the court determined that because defendant presented no evidence regarding any connection to the National Guard or some other military organization that would validate his possession of a firearm, he failed to establish a liberty interest under the Second Amendment.
Costerus v. Neal, No. 00-12156-MEL, 2001 U.S. Dist. LEXIS 3295 (D. Mass. Mar. 9, 2001) (unreported decision)
Dismissed a pro se plaintiff’s civil action against various towns and town employees for violations of his state and federal constitutional rights to store and possess firearms. Plaintiff filed suit after his application for a license to carry certain types of guns was denied because of plaintiff’s alleged failure to comply with a required firearms safety course and his alleged involvement in domestic and firearms related crimes. Id. at *1-*2. The state court reversed the denial and granted the application. Id.
In dismissing plaintiff’s Second Amendment claims, the court found that the Second Amendment neither applies to the states nor creates an actionable, individual right to bear arms. Id. at *3. The court cited Presser v. Illinois, 116 U.S. 252, 265 (1886) and United States v. Miller, 307 U.S. 174, 178 (1939) for its holding and explicitly rejected plaintiff’s reliance on "a passing reference made in Justice Harlan’s dissent in Poe v. Ullman, 367 U.S. 497, 543 (1961), to the ‘right to bear arms’ . . . ." Id.
Nollet v. Justices of the Trial Court, 83 F. Supp. 2d 204 (D. Mass. 2000), aff’d, 248 F.3d 1127 (1st Cir. 2000)
Plaintiffs brought a civil rights action alleging that certain
state statutes authorizing the confiscation of firearms and
ammunition and the revocation of firearms licenses in cases of
domestic violence violated the Second Amendment. Although the
suit was dismissed for failing to state a claim under
42 U.S.C. §
1983, the court responded to plaintiffs’ Second Amendment claim,
in dicta, by observing that the Amendment applies only to federal
government activity, not to activity by the states.
Mayberry v. Rizzo, No. 95-199-P-H, 1996 U.S. Dist. LEXIS 2305 (D. Me. Jan. 26, 1996) (unreported decision)
Plaintiff brought suit against the City of Portland and several
of its officers, alleging that by detaining plaintiff and seizing
his unconcealed firearm the officers and the city violated his civil
rights, including those under the Second Amendment. The court
entered summary judgment in favor of defendants, holding that the
Second Amendment applies only to actions of the federal government,
and not to those by state or city officials, and has never been
incorporated into the due process protections of the Fourteenth
Amendment.
Bemis v. Kelley, 671 F. Supp. 837 (D. Mass. 1987)
Plaintiff filed a civil rights action against the City of Boston and federal law enforcement officials. Plaintiff claimed that the law enforcement officials’ seizure of the plaintiff’s .357 Magnum revolver and his firearms license violated the Second Amendment. Relying on United States v. Robinson, 414 U.S. 218 (1973), the court rejected plaintiff’s claim concluding that the Second Amendment does not grant an accused the right to retain a firearm while being arrested. Bemis, 671 F. Supp. at 842. The court also held that a review of the plaintiff’s license to carry a firearm was not a violation of any constitutional right. Id.
SECOND CIRCUIT
Court of Appeals
Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005)
Plaintiff, a Virginia resident who frequently traveled to New York, was ineligible for a New York license to carry a concealed handgun because he was not a resident of New York state. He sued various New York state officials, maintaining that the state licensing scheme violated the Second Amendment. In affirming the lower court’s holding that plaintiff’s claim was “meritless,” the court stated that the Second Amendment only imposes a limitation on federal, not state legislative efforts. Thus, the court held that the Second Amendment did not apply to state officials and dismissed plaintiff's claim.
United States v. Scanio, No. 97-1584, 1998 U.S. App. LEXIS 29415 (2d Cir. Nov. 12, 1998) (unpublished decision), aff’d, 165 F.3d 15 (2nd Cir. 1998) (mem.)
Appellant was convicted of a felony and subsequently had to relinquish his firearms per the provisions of a statute. The court rejected appellant's claim that the statute violated the Second Amendment. Id. at *2. Citing the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939), the court held that the Second Amendment was designed to protect the right of the states to keep and maintain armed militia. Scanio, 1998 U.S. App. LEXIS 29415 at *5.
Lawson v. Kirschner, No. 97-7834, 1998 U.S. App. LEXIS 14776 (2d Cir. May 20, 1998) (unpublished decision), cert. denied, 525 U.S. 1169 (1999)
The Connecticut Commissioner of Public Safety revoked plaintiff’s gun permits after plaintiff failed a sobriety test while carrying loaded firearms on his person and in his car. Plaintiff filed suit, alleging that the permit revocation violated his rights under the Second Amendment. The court rejected this argument, finding as a matter of law that the Second Amendment does not confer a fundamental right to possess a gun, and plaintiff had no constitutional right to a gun permit. Id. at *7.
United States v. Toner, 728 F.2d 115 (2d Cir. 1994)
Upheld defendants' convictions for violations of three federal firearms provisions. One of the federal statutes at issue prohibits possession of firearms by an illegal alien. Defendants, both illegal aliens, challenged this statute on equal protection grounds. In stating that a rational basis standard and not strict scrutiny applied to a Fifth Amendment equal protection challenge, the Second Circuit noted "the right to possess a gun is clearly not a fundamental right." Id. at 128 (internal quotation marks and citation omitted).
District Courts
United States v. Campbell, No. 04 Cr. 903 (GEL), 2005 U.S. Dist. LEXIS 16284 (S.D.N.Y. July 26, 2005) (unreported decision)
The court rejected defendant’s appeal of a conviction for possession of a firearm by a convicted felon under 18 U.S.C. § 922(g), noting that the constitutionality of federal statutes prohibiting possession of firearms by convicted felons has been upheld by the Supreme Court in Lewis v. United States, 445 U.S. 55, 63 (1980). Lewis cited various Courts of Appeals decisions upholding firearm regulations, including section 922(g) against Second Amendment challenges. Further, the court stated that neither courts nor academics nor any other authorities have contended that any Second Amendment privileges vest for felons. Id. at *4.
Garcha v. The City of Beacon, 351 F. Supp. 2d 213 (S.D.N.Y. 2005)
Plaintiff, a New York State Corrections Officer, was arrested in a domestic violence dispute and the Beacon Police confiscated his pistol. After plaintiff was sentenced, a judge ordered his weapon destroyed and plaintiff sued, claiming that the city's destruction of his pistol violated the Second Amendment. In granting defendant's motion to dismiss based on the failure to state a claim, the court held that defendant's actions in no way violated the Second Amendment.
Walczyk v. Rio, 339 F. Supp. 2d 385 (D. Conn. 2004)
Plaintiffs brought an action pursuant to 42 U.S.C. § 1983 (giving individual citizens a civil cause of action for deprivation of rights) alleging that a police search of their homes and confiscation of numerous firearms violated the Second Amendment. In granting defendants summary judgment, the court held that there was no recognizable 42 U.S.C. § 1983 cause of action based on a right to own firearms unrelated to the maintenance of a militia.
NAACP v. Acusport, Inc., 271 F. Supp. 2d 435 (E.D.N.Y. 2003)
The civil rights organization sued manufacturers, importers, and distributors of handguns for public nuisance under New York law. The court rejected the argument that the suit was barred by the Second Amendment, holding that the Amendment only limits the authority of the federal government. Id. at 462. The court also observed that "there is no justification in the federal Constitution for private persons failing to exercise reasonable care in meeting their legal responsibility to help ensure a safe society.... [The] practices of the gun industry place society at risk." Id.
Dew v. United States, 1998 U.S. Dist. LEXIS 4176 (S.D.N.Y. Apr. 1, 1998) (unpublished decision), aff'd, 192 F.3d 366 (2d Cir. 1999), cert. denied, 529 U.S. 1083 (2000)
Plaintiffs, Agents of the FBI and past, present, and prospective members of the Reserve component of the United States Armed Forces, argued that the Reserve Policy (which excluded Special Agents from service in the Ready Reserve) violated their Second Amendment rights. The court rejected this argument, citing United States v. Miller, 307 U.S. 174 (1939) for the proposition that it is "settled constitutional law that the Second Amendment is not a source of individual rights. Rather, the Second Amendment grants a collective right to the States to preserve 'a well regulated militia.'" Id. at *6. The court went on to say that the Reserve Policy could not possibly violate plaintiffs' rights under the Second Amendment because of both the lack of such an individual right and the plaintiffs' failure to show that their service in the Ready Reserve would bear "some reasonable relationship to the preservation or efficiency of a well-regulated militia," as required by Miller. Id. (citation omitted).
Engblom v. Carey, No. 79 Civ. 4785 (RWS), 1981 U.S. Dist. LEXIS 14442 (S.D.N.Y. Sept. 3, 1981) (unreported decision)
Plaintiffs were state corrections officers who were evicted from their correctional facility residences after participating in a labor strike, and were barred from retrieving their personal weapons from the residences during the strike. The officers brought suit against state government officials alleging, among other things, that the defendants' actions violated the Second Amendment. The court dismissed plaintiffs' Second Amendment challenge, stating that "the Second Amendment is addressed exclusively to infringing action by the federal government[,]" therefore such a claim cannot be brought against an entity, official or agent of state government. Engblom, at*4-*5. The court stated further that regulating the possession or use of weapons does not violate the Second Amendment unless the activity infringed has some reasonable relationship to the preservation or efficiency of a well-regulated militia.
THIRD CIRCUIT
Court of Appeals
United States v. Willaman, 437 F.3d 354 (3d Cir. 2006), rev’d sub nom. Willaman v. Ferentino, NO. 05-1116, 173 Fed. Appx. 942 (3d Cir. Apr. 5, 2006) (unpublished decision), cert. denied, 126 S. Ct. 2902 (2006)
The court upheld defendant’s conviction for knowingly and unlawfully possessing a machine gun in violation of 18 U.S.C. § 922(o), rejecting the defendant’s argument that Congress had no right to "amend the Second Amendment merely by legislation." The court relied on United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 118 S.Ct. 446 (1997), noting that "this court has on several occasions emphasized that the Second Amendment furnishes no absolute right to firearms." Willaman, 437 F.3d at 357 (quoting Rybar, 103 F.3d at 286).
Miller v. New Jersey, No. 04-3502, 144 Fed. Appx. 926 (3d Cir. Aug. 2, 2005) (unpublished decision)
A sheriff’s detective appealed an issuance of summary judgment against his claim that restrictions on his carrying a firearm violated his absolute right to possess a firearm. After receiving several domestic violence complaints against the detective, the county prosecutor’s office denied the detective firearm privileges, after which the detective filed a complaint against the office and the state of New Jersey for violating 42 U.S.C. § 1983. The court rejected his claim that his role in the sheriff’s office was analogous to that of a member of a state militia in times of crisis. The appellant believed he had an absolute right "under the Second Amendment to possess a firearm [while] off-duty since it is reasonably related to his service in the state-sanctioned militia." Id. at 928-29. The court relied on United States v. Miller, 307 U.S. 174 (1939), where the Supreme Court held that a defendant "could not avail himself of second amendment protection because his weapon possession bore no reasonable relationship to the preservation of a well regulated militia." Miller v. New Jersey, 144 Fed. Appx. at 929.
United States v. Bell, No. 02-2340, 66 Fed. Appx. 408, 2003 U.S. App. LEXIS 11202 (3d Cir. June 3, 2003) (unpublished decision)
Defendant appealed his conviction under 18 U.S.C. § 922(g), which prohibits possession of a firearm by a felon. Defendant argued that the statute violated the Second Amendment. Relying on United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), the court rejected defendant’s argument, holding that the Second Amendment "furnishes no absolute right to firearms." Bell, 66 Fed. Appx. at 408.
United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 118 S. Ct. 446 (1997)
Rejected defendant’s Second Amendment and Commerce Clause challenge to his conviction for unlawful transfer or possession of machine guns in violation of 18 U.S.C. § 922(o). Defendant, a federally licensed firearms dealer who obtained the machine guns at issue at a gun show, argued that because of the obvious military utility of a machine gun, the federal law regulating its possession is unconstitutional under the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939). The Third Circuit first noted that while the Supreme Court in Miller clearly suggested that the firearm at issue lacked the necessary military character, the Court did not state that "such character alone would be sufficient to secure Second Amendment protection." Id. at 286. Instead, Miller "assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its ‘possession or use’ and militia-related activity." Id. (citations omitted).
Noting that defendant’s possession and use of the machine guns
was related to his business activity as a firearms dealer and not to
any militia-related activity, the court affirmed the principle
established in Miller that, regardless of the military
character of a firearm, the Second Amendment is inapplicable when
there is no connection between defendant’s possession of a firearm
on the one hand and any protected militia-related activity on the
other. Finally, the Third Circuit referred defendant to
its decisions "on several occasions emphasiz[ing] that the Second
Amendment furnishes no absolute right to firearms." Id. at 286 (citations omitted).
Rice v. Department of Alcohol, Tobacco & Firearms, 68 F.3d 702 (3d Cir. 1995)
Summarily affirmed the trial court’s grant of summary judgment in favor of the Bureau of Alcohol, Tobacco, and Firearms with respect to all constitutional claims raised by plaintiff, a convicted felon seeking reinstatement of firearm privileges, including his Second Amendment claim.
United States v. Graves, 554 F.2d 65 (3d Cir. 1977)
Affirmed conviction under federal Gun Control Act in connection
with possession of a firearm by an individual convicted of a state
law felony. Held that a predicate state felony conviction
cannot be collaterally attacked in subsequent weapons’ prosecution
proceeding under the federal Act. In dicta, the Third Circuit
noted that “the courts consistently have found no conflict between
federal gun laws and the Second Amendment, narrowly construing the
latter to guarantee the right to bear arms as a member of a
militia." Id. at 66.
Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839 (1973)
Affirmed a trial court judgment rejecting appellant’s
constitutional attack on a city ordinance regulating the purchase and transfer of firearms.
The court noted that appellant’s theory that he is entitled to
bear arms under the Second Amendment "is completely wrong” and
that “[i]t must be remembered that the right to keep and bear arms
is not a right given by the United States Constitution." Id. at 610.
United States v. Tot, 131 F.2d 261 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943)
Appellate court affirmed defendant’s convictions for violation
of the Federal Firearms Act, rejecting defendant’s constitutional
challenge to the Act’s prohibitions on the ownership of firearms
or ammunition by persons convicted of a crime of violence. The
court relied on United States v. Miller, 307 U.S. 174 (1939) and its progeny, as
well as a broader principle of common law:
Weapon bearing was never treated as anything like an absolute right by the common law . . . . In the situation at bar Congress has prohibited the receipt of weapons from interstate transactions by persons who have previously, by due process of law, been shown to be aggressors against society. Such a classification is entirely reasonable and does not infringe upon the preservation of the well-regulated militia protected by the Second Amendment.
Id. at 266-67 (footnotes omitted).
District Courts
Green v. City of Philadelphia, No. 03-1476, 2004 U.S. Dist. LEXIS 9687 (E.D. Pa. May 26, 2004)
Plaintiff brought a civil action against the City of Philadelphia when his
application for a permit to carry a firearm was denied because it failed to
include a photograph, as required by Philadelphia,
Pa., Code § 10-814(4)(c). Plaintiff, whose religious beliefs forbade being
photographed, complained that his Second Amendment rights were violated when
he was denied the permit. The court granted defendant’s summary judgment motion,
after citing a litany of federal circuit court cases forbade him from being
photographed. Id. at 23.
McBrearty v. Delaware County Sheriff’s Dept., No. 02-4553, 2004 U.S. Dist. LEXIS 2722 (E.D. Pa. Feb. 24, 2004) (Slip Copy)
Plaintiffs claimed that defendants violated their Second Amendment rights by seizing plaintiffs’ guns during an eviction. The court summarily rejected plaintiffs’ argument, holding that plaintiffs had failed to provide a factual basis on which to make a claim of a constitutional violation. Id.
Potts v. City of Philadelphia, 224 F. Supp. 2d 919 (E.D. Pa. 2002)
Plaintiff was arrested for allegedly firing a gun out of a
window in his house. Following plaintiff’s arrest, a detective in
the Gun Permit Unit (the unit that oversees the issuance of firearm
licenses in Philadelphia) made the determination to revoke plaintiff’s gun
permit. Plaintiff claimed that this revocation infringed his rights
under the Second Amendment. The court rejected this claim, relying
on United States v. Miller, 307 U.S. 174 (1939), in which the
Supreme Court ruled that the Second Amendment guarantees only a
right to “bear arms” in connection with the preservation of a
well-regulated militia. Here, plaintiff alleged no facts to suggest
his possession of a gun had any relation to state militia activities
and therefore, the court determined his Second Amendment claims must
fail.
Austin v. Neal, 933 F. Supp. 444 (E.D. Pa. 1996)
Petitioner police officer brought civil rights violation claims in federal and state courts against the police department and others after petitioner was suspended for fatally shooting a homeless man. The court rejected petitioner’s argument that the suspension violated the Second Amendment, holding that the Second Amendment does not release authorities from the obligation to ensure that firearms are used responsibly. Id. at 444.
Krisko v. Oswald, 655 F. Supp. 147 (E.D. Pa. 1987)
Defendant police officer stopped plaintiff’s car after
plaintiff ran a red light, ostensibly because she was being rushed
to the hospital after suffering a reaction to a food allergy. The
officer forced plaintiff to remain at the scene and called for an
ambulance that took her to the hospital. Plaintiff, days after
being treated for her injury, went to the police station with her
parents to discuss the incident with the township’s police chief.
During the ensuing meeting, defendant police chief was forced
to escort plaintiff and her parents from the police station.
Plaintiff subsequently brought suit against the officers,
alleging that the Second Amendment entitled her to the services of a
well-regulated militia, and that her local township police
department was a “militia” that was not “well-regulated.”
The court rejected plaintiff’s “novel” Second Amendment
argument, holding that it is doubtful that a police force could be
described as a “militia,” and stating that the Amendment is
actually a limitation upon the federal government’s power in
relation to the states, “not a limitation upon the states vis-à-vis
their own citizens.” Id. at 149. The court held further that the Second Amendment “does not secure
the right to a well-regulated militia in the sense that an
individual is entitled to assert a claim that a state’s militia is
not ‘well-regulated’,” rather, the Amendment’s sole purpose
is to preserve for the states the right to establish and arm a
militia.
United States v. Casson, 288 F. Supp. 86 (D. Del. 1968)
Denied defendant’s motion to dismiss an information charging that he unlawfully possessed a sawed-off shotgun that was illegally made and transferred in violation of, among other statutes, 26 U.S.C. § 5821 (imposing certain taxes for the manufacture and transfer of a firearm). The court rejected defendant’s Second Amendment challenge, holding that the Amendment does not guarantee the right to keep and bear such shotguns without a showing that such possession or use has some reasonable relationship to the preservation or efficiency of a well-regulated militia.
FOURTH CIRCUIT
Court of Appeals
United States v. Romero-Pina, 166 Fed. Appx. 34 (4th Cir. 2006) (unpublished decision)
Defendant was convicted of violating 18
U.S.C. § 922(g)(5), which prohibits any person who is unlawfully in
the United States or is in the United Sates with a nonimmigrant visa
from possessing a firearm. The Court of Appeals affirmed the district court’s
rejection of defendant’s Second Amendment challenge to the law, noting that
the claim was foreclosed by its previous decision, United States v.
Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (rejecting a similar Second
Amendment challenge to a violation of 18
U.S.C. § 922(g)).
United States v. Finnell, No. 00-4928, 2001 U.S. App. LEXIS 24823 (4th Cir. Nov. 19, 2001) (unpublished decision), cert. denied, 535 U.S. 1027 (2002)
Defendant challenged his conviction under 18 U.S.C. § 922(g)(9) for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence, arguing that the statute violated the Second Amendment. The court rejected this argument, holding without analysis or comment, that 18 U.S.C. § 922(g)(9) did not run afoul of the Second Amendment.
United States v. Hager, No. 00-4837, 2001 U.S. App. LEXIS 24503 (4th Cir. Nov. 14, 2001) (unpublished decision)
Affirmed defendants’ convictions for firearms trafficking violations under 18 U.S.C. §§ 922(o)(1) and 924(a)(2), which were challenged under the Second Amendment. Although the court did not address the Second Amendment claim directly, the Court stressed that the Amendment does not create an absolute individual right to bear arms, but only confers a collective right which must bear a reasonable relationship to the preservation or efficiency of a well-regulated militia.
United States v. Smith, No. 00-4534, 2001 U.S. App. LEXIS 20524 (4th Cir. Sept. 17, 2001) (unpublished decision), cert. denied, 534 U.S. 1165 (2002)
Defendant pled guilty to a violation of 18 U.S.C. § 922(g) (which prohibits possession of a firearm by a felon), then appealed his conviction on the ground that the statute violated the Second Amendment. In affirming defendant’s conviction, the court stated that the Second Amendment does not render the statute unconstitutional because the Amendment only confers a collective right to “keep and bear arms” that must also bear a reasonable relationship to the preservation or efficiency of a well-regulated militia.
United States v. Pruess, No. 00-4697, 2001 U.S. App. LEXIS 13775 (4th Cir. June 19, 2001) (unpublished decision)
Defendant, a convicted felon, was convicted of transporting a firearm in interstate commerce in violation of 18 U.S.C. § 922(g)(1). The court rejected defendant’s Second Amendment challenge to 18 U.S.C. § 922(g)(1), holding that he failed to show how his conviction "interfered with the collective right of the people to maintain a well-regulated militia." Id. at *2.
Edwards v. City of Goldsboro, 178 F. 3d 231 (4th Cir. 1999)
Finding the provision inapplicable to the states, the court rejected a law enforcement officer’s Second Amendment claim in the context of a civil suit under 42 U.S.C. § 1983. The plaintiff challenged his suspension for teaching a concealed handgun safety course without permission which constituted “secondary employment” requiring permission. Id. at 239.
Love v. Pepersack, 47 F.3d 120 (4th Cir.), cert. denied, 516 U.S. 813 (1995)
Affirmed the dismissal of civil rights action alleging that the denial by law enforcement officers of an application to purchase a handgun due to a prior arrest record violated the Second Amendment. The court reasoned that the Second Amendment did not apply to the states, and that "the Second Amendment preserves a collective, rather than an individual, right" of "keeping and bearing arms which must bear ‘a reasonable relationship to the preservation or efficiency of a well-regulated militia.’" Id. at 124 (citations omitted).
United States v. Johnson, 497 F.2d 548 (4th Cir. 1974)
Affirmed defendant’s conviction under 18 U.S.C. § 922(g) and rejected defendant’s constitutional challenge to the statute which
prohibits transportation of a firearm in interstate commerce by
convicted felon. “The courts have consistently held that
the Second Amendment only confers a collective right of keeping and
bearing arms which must bear ‘a reasonable relationship to the
preservation or efficiency of a well regulated militia.’” Id. at 550 (citations omitted).
District Courts
United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.Va.
1999)
Denied defendant’s motion brought under the Second Amendment to dismiss an indictment for violations of federal law prohibiting the shipping, transporting, or receipt of firearms through interstate commerce by a convicted felon and person found by the court to have certain violent propensities. Defendant Henson based his motion to dismiss on United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex.), rev’d, 270 F.3d 203 (5th Cir. 2001), cert. denied, 541 U.S. 1081 (2004), in which a federal trial court in the Fifth Circuit dismissed an indictment under 18 U.S.C. § 922(g)(8) holding that the Second Amendment protects an individual right to bear arms. The statute at issue in Emerson prohibits any person subject to an order restraining that person from harassing, stalking or threatening an intimate partner, from possessing a firearm. The Henson court refused to follow Emerson, holding that the Fourth Circuit has consistently ruled that the Second Amendment confers a collective rather than an individual right and further that Emerson was distinguishable because the defendant in Emerson, unlike Henson, was not a convicted felon who was also subject to such a restraining order. Id. at 529.
FIFTH CIRCUIT
Court of Appeals
United States v. Gipson, No. 05-20537, 182 Fed. Appx. 340 (5th Cir. May 25, 2006) (unpublished decision)
The court rejected an appeal on Second Amendment grounds made by a defendant who was convicted of possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The court affirmed the conviction, holding that the appeal on Second Amendment grounds was foreclosed by United States v. Darrington, 351 F.3d 632 (5th Cir. 2003), cert. denied 541 U.S. 1080 (2004) (rejecting defendant's claim that a statute prohibiting a felon's possession of firearms violated the Second Amendment).
United States v. Patterson, 431 F.3d 832 (5th Cir. 2005)
Defendant appealed his conviction of violating 18 U.S.C. § 922(g)(3), which prohibits a person who is an unlawful user of a controlled substance from possessing a firearm. The court rejected defendant’s Second Amendment challenge to the law, relying on United States v. Emerson, 270 F.3d 203, 261 (5th Cir. 2001), cert. denied, 541 U.S. 1081 (2004) (the right to bear arms can be subject to limited, narrowly defined exceptions, and Congress can prohibit persons who pose a risk to society from keeping and bearing arms) and United States v. Everist, 368 F.3d 517 (5th Cir. 2004) (felons can be prohibited from possessing firearms without raising Second Amendment questions).
United States v. Mares, 402 F.3d 511 (5th Cir. 2005)
Defendant was convicted of being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and appealed his conviction on the ground that it violated the Second Amendment. In affirming defendant's conviction, the court held that this argument was foreclosed by United States v. Darrington, 351 F.3d 632 (5th Cir. 2003), cert. denied, 541 U.S. 1080 (2004) (rejecting defendant’s claim that a statute prohibiting a felon’s possession of firearms violated the Second Amendment).
United States v. Chavarria, 377 F.3d 475 (5th Cir. 2004), vacated, reinstated, 2006 U.S. App. LEXIS 550 (5th Cir. Tex., Jan. 10, 2006) (unpublished decision)
Defendant was convicted of possessing an unregistered sawed-off shotgun under 26 U.S.C. §§ 5861(d) and 5871, and being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant appealed on the ground that 18 U.S.C. § 922(g)(1) violated the Second Amendment. The court affirmed defendant’s conviction, stating that the Fifth Circuit had repeatedly rejected this argument. See United States v. Darrington, 351 F.3d 632 (5th Cir. 2003) cert. denied, 541 U.S. 1080 (2004).
United States v. Everist, 368 F.3d 517 (5th Cir. 2004)
The court denied a felon’s appeal of his conviction for violating 18 U.S.C. §§ 922(g)(1) and 924(e)(1), which prohibit possession of a firearm by a person convicted of a crime punishable by more than one year’s imprisonment. The court rejected defendant’s Second Amendment challenge to the law, holding that it is not inconsistent with the Second Amendment to limit the ability of convicted felons to keep and possess firearms.
United States v. Bermea, No. 04-40083, 101 Fed. Appx. 510 (5th Cir. June 23, 2004) (unpublished decision), cert. denied, 125 S. Ct. 363 (2004)
Defendant appealed his conviction for being a felon in possession of a firearm on the ground that 18 U.S.C. § 922(g), the statute under which he was charged, violated the Second Amendment. The court affirmed defendant's conviction, holding that his argument was foreclosed by prior Fifth Circuit decisions.
United States v. Underwood, 87 Fed. Appx. 411 (5th Cir. Feb. 18, 2004) (unpublished decision), cert. denied, 124 S. Ct. 2051 (2004)
Defendant appealed her conviction for possession of a firearm by a felon under 18 U.S.C. §§ 922(g)(1), 924(a)(2), claiming that the statute violated the Second Amendment. The court rejected defendant's argument, relying on United States v. Darrington, 351 F.3d 632 (5th Cir. 2003), cert. denied, 541 U.S. 1080 (2004), which "soundly rejected the same arguments" that defendant raised. Underwood, 87 Fed. Appx. at 411.
United States v. Lastrapes, 88 Fed. Appx. 753 (5th Cir. Feb. 18, 2004) (unpublished decision), cert. denied, 124 S. Ct. 2051 (2004)
Defendant was convicted of being a felon in possession of a firearm. Defendant claimed that the applicable statute, 18 U.S.C. § 922(g)(1), was unconstitutional because it violated the Second Amendment. The court rejected defendant's claims by relying on United States v. Darrington, 351 F.3d 632 (5th Cir. 2003), cert. denied, 124 S. Ct. 2429 (2004), which held that the statute was consistent with the Second Amendment. Lastrapes, 88 Fed. Appx. at 754.
United States v. Shepherd, No. 02-21342, 87 Fed. Appx. 978 (5th Cir. Feb. 18, 2004) (unpublished decision), cert. denied, 542 U.S. 931 (2004)
Defendant appealed his conviction for being a felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a), claiming that the statute violated the Second Amendment. The court rejected this claim, relying on United States v. Darrington, 351 F.3d 632 (5th Cir. 2003), cert. denied, 541 U.S. 1080 (2004), which upheld the constitutionality of the statute and reiterated the government's power to issue weapons regulations. Shepherd, 87 Fed. Appx. at 978.
United States v. Burgess, 89 Fed. Appx. 865 (5th Cir. Jan. 21, 2004) (unpublished decision), cert. denied, 541 U.S. 1080 (2004)
Defendant, who pled guilty to being a felon in possession of a firearm, appealed his conviction, claiming that the statute under which he was convicted, 18 U.S.C. § 922, violated the Second Amendment. The court noted that this claim was foreclosed by the court’s decision in United States v. Darrington, 351 F.3d 632 (5th Cir. 2003), cert. denied, 541 U.S. 1080 (2004) and United States v. Daugherty, 264 F.3d 513 (5th Cir. 2001), cert. denied, 534 U.S. 1150 (2002).
United States v. Darrington, 351 F.3d 632 (5th Cir. 2003), cert. denied, 541 U.S. 1080 (2004)
Defendant appealed his conviction for being a felon in possession of a firearm. The court rejected defendant's claim that the law prohibiting possession of a firearm by a felon violated the Second Amendment, holding that felons can be prohibited from possessing firearms. The court stated further that the Second Amendment only infringes on the federal government. Id. at 634.
United States v. Spruill, 292 F.3d 207 (5th Cir. 2002)
Defendant was convicted of possessing a gun in violation of the provisions of a protective order. Defendant appealed the conviction on the grounds, among others, that the protective order statute, 18 U.S.C. § 922(g)(8), violated the Second Amendment. The court upheld the constitutionality of the statute and rejected defendant's Second Amendment argument. Spruill, 292 F.3d. at 214.
The district court case was decided two months after a federal trial court in the Northern District of Texas dismissed a federal indictment under the same statute in United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex.), rev’d, 270 F.3d 203 (5th Cir. 2001), cert. denied, 541 U.S. 1081 (2004). The Spruill district court chose not to follow Emerson and noted a number of other federal trial court opinions also rejected the reasoning of Emerson. United States v. Spruill, 61 F. Supp. 2d 587, 589 (W.D. Tex. 1999).
United States v. Henry, 288 F.3d 657 (5th Cir. 2002), cert. denied, 537 U.S. 902 (2002)
Defendant appealed his conviction for possession of a firearm while subject to a restraining order in violation of 18 U.S.C. § 922(g)(8). Defendant argued that section 922(g)(8) violates his rights under the Second Amendment. The court rejected this argument, noting that a similar claim had failed in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 541 U.S. 1081 (2004), where the court ruled that the nexus between the gun possession by the enjoined party and the threat of lawless violence was sufficient to support an order prohibiting firearm possession.
United States v. Emerson, 270 F. 3d 203 (5th Cir. 2001), cert. denied, 541 U.S. 1081 (2004)
Rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(8)(C)(ii), prohibiting firearms possession by any person subject to a court order restraining him or her from harassing, stalking, or threatening an intimate partner or child of an intimate partner. The defendant in the case, Timothy Joe Emerson, allegedly threatened his wife and child with a handgun while subject to a restraining order issued in a divorce proceeding.
The Emerson case generated substantial publicity because the trial court had held that the U.S. Code provision violated the Second Amendment. Although all three judges on the Fifth Circuit panel agreed to reverse the trial court, two of the judges expressed their personal view that the Second Amendment confers an isolated, individual right to possess firearms, rather than a right related to service in a well-regulated state militia. This view is contrary to more than sixty years of established case law, including United States v. Miller, 307 U.S. 174 (1939) (holding that the Second Amendment does not invalidate legislative limitations on the possession or use of firearms that do not have a reasonable relationship to a well-regulated militia).
United States v. Williams, 446 F.2d 486 (5th Cir. 1971)
Defendant was convicted of transporting a sawed off shotgun in violation of federal law. On appeal, he challenged the constitutionality of the federal statutes (26 U.S.C. §§ 5861(d), 5871) on Second Amendment grounds. The appellate court rejected his challenge based on the Supreme Court's decision in United States v. Miller, 307 U.S. 174 (1939), and the Fifth Circuit's decision in United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971).
United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971)
Holding that defendant "misconstrues the Second Amendment..." and quoting the Supreme Court's decision in United States v. Miller, 307 U.S. 174 (1939), the Fifth Circuit rejected defendant's Second Amendment challenge to his conviction under the National Firearms Act of 1968 for unlawfully possessing an unregistered sawed-off shotgun in violation of federal law. "'In absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.'" Id. at 1136 (citation omitted).
District Courts
Hunter v. City of Electra, Civil Action No. 7:03-CV-153-R, 2006 U.S. Dist. LEXIS 46214 (N.D. Tex. June 29, 2006)
Plaintiff argued that police officer violated his Second Amendment rights when they confiscated his firearm at the time of his arrest. The court granted defendants’ motion for summary judgment, citing Dickerson v. City of Denton, 298 F.Supp.2d 537, 540 (E.D. Tex. 2004) for the proposition that so long as police officers abide by Fourth Amendment requirements, they may confiscate a weapon during the course of an arrest without violating the individual’s Second Amendment rights. Id. at 21.
Zarnow v. City of Wichita Falls, NO. 7:01-CV-128-KA, 2006 U.S. Dist. LEXIS 29100 (N.D. Tex. May 12, 2006)
A plaintiff brought a claim alleging a violation of his civil rights under 42 U.S.C. § 1983. Police officers had executed a search warrant and found and seized firearms from his homes and office. Id. at 12. The court denied plaintiff’s Second Amendment claim, citing Dickerson v. Denton, 298 F. Supp.2d 537 (E.D. Tex. 2004) (a lawful search does not violate the Second Amendment). Id. at 49-50.
Scott v. Goethals, No. 3-04-CV-0855-R, 2004 U.S. Dist. LEXIS 16500 (N.D. Tex. Aug. 18, 2004)
Petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that Texas Penal Code § 46.02 (prohibiting an individual from possessing a handgun when not on his or her own premises) infringed on his Second Amendment rights. The court denied the application on the basis of Supreme Court and Texas precedent, which do not recognize an individual right to bear arms unrelated to a regulated militia.
Dickerson v. City of Denton, 298 F. Supp. 2d 537 (E.D. Tex. 2004)
A business owner whose guns were confiscated during a police raid brought suit against the city, arguing that the confiscation violated the Second Amendment. The court rejected this argument, holding that police officers have the authority to search an area and confiscate guns they believe to have been used in a crime. Id. at 540.
United States v. Boisdore, Criminal Action NO. 98-091, 1999 U.S. Dist. LEXIS 16669 (E.D. La. Oct. 26, 1999) (unreported decision)
Affirmed defendant's conviction and sentence for hunting infractions under the Migratory Bird Treaty Act, 16 U.S.C.S. § 703, which defendant challenged as a violation of the Second Amendment and the alleged "right to hunt." The court rejected defendant's Second Amendment challenge, emphasizing that an individual convicted of a federal gun-related offense can be prevented from possessing firearms under the Amendment. The court quickly dispensed with plaintiffs "right to hunt" argument, stating only that it "would be interested in reading whatever constitution" that gives plaintiff this right.
Vietnamese Fisherman's Assoc. v. Knights of the Ku Klux Klan, 543 F. Supp. 198 (S.D. Tex. 1982)
An organization of Vietnamese fishermen brought a civil rights action against the Knights of the Ku Klux Klan, seeking to enjoin the Klan's military operations. The court rejected the argument that an injunction would violate the Second Amendment, ruling that the Second Amendment does not provide any right for an individual to form private armies, but only protects the right to possess weapons in the context of maintaining a militia organized by the state. Id. at 198.
SIXTH CIRCUIT
Court of Appeals
United State v. Warin, No. 04-3431, 163 Fed. Appx. 390 (6th Cir. Jan. 26, 2006) (unpublished decision), cert. denied, 164 L.Ed. 2d 830 (May 22, 2006)
Defendant argued that his conviction for violating 18 U.S.C. § 922(g)(1) (prohibiting a felon from possessing a firearm) was precluded by the Second Amendment. See United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied, 426 U.S. 948 (1976), infra. The court had rejected a similar Second Amendment challenge by defendant 29 years earlier after defendant was convicted of various firearms violations, and the court did so again. Relying on its own precedents, the court concluded there was no protected right. Id. at 394.
United States v. Helton, No. 02-5155, 86 Fed. Appx. 889 (6th Cir. Jan. 27, 2004) (unpublished decision), cert. denied, 541 U.S. 1082 (2004)
Defendant was convicted of possession of a firearm in furtherance of a drug conspiracy. Defendant appealed, claiming that the statute under which he was convicted, 18 U.S.C. § 924(c), violated the Second Amendment. The court rejected the defendant’s Second Amendment argument. Helton, 86 Fed. Appx. at 892.
United States v. Bournes, 339 F.3d 396 (6th Cir. 2003), cert. denied, 124 S.Ct. 1041 (2004)
This case held that: 1) despite defendant’s membership in a private militia, his prosecution for failure to register machine guns did not violate his constitutional rights and 2) federal statutes requiring registration of machine guns and prohibiting machine gun possession did not infringe on defendant’s Second Amendment rights.
With regard to membership in a private militia, the district court cited binding Sixth Circuit precedent and highlighted several problems with defendant’s attempt to distinguish contrary authority. First, the defendant did not meet the burden of showing that he possessed the machine guns "in preparation for a military career." Id. at 744. Second, the "‘well regulated Militia’ of the sort contemplated by the Second Amendment" necessarily excludes private or unorganized militias. Id. (citations omitted). Finally, the fact that defendant’s age excluded him from eligibility for membership in Michigan’s organized militia only emphasized the meritlessness of his claims. Id.
Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2002)
Denied plaintiffs’ motion for summary judgment in an action alleging that Title XI of the Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. §§ 921-930, the Semiautomatic Assault Weapons Ban, violated the Second Amendment. Plaintiffs, federally licensed firearms manufacturers and dealers, argued that the Second Amendment guarantees rights which should be considered fundamental rights under an equal protection analysis, requiring the “strict scrutiny” standard of review.
In denying plaintiffs’ motion for summary judgment, the court stated that the Second Amendment does not guarantee any right to be a firearms manufacturer or dealer, and that plaintiffs did not raise any arguments supporting the theory that their fundamental rights, or the fundamental rights of their purchasers, have been violated. The court held that plaintiffs failed to demonstrate that they are a suspect class, “and one is hard-pressed to imagine how they could be.” Olympic Arms, 91 F. Supp. 2d at 1071.
The court determined that the statute would be reviewed under the “rational relationship” standard, which provides that statutes are presumed valid and will be upheld if the law’s classification is rationally related to a legitimate governmental interest. Applying this standard to the Semiautomatic Assault Weapons Ban, the court found that plaintiffs’ arguments did not meet the heavy burden under the standard. The court upheld the weapons ban, finding that it bears a rational relationship to the appropriate governmental ends of protecting public safety and deterring criminal activity.
United States v. Twenty-two Various Firearms, No. 01-3329, 38 Fed. Appx. 229 (6th Cir. Mar. 27, 2002) (unpublished decision), cert. denied sub nom. Warin v. United States, 537 U.S. 890 (2002)
Defendant was prohibited from possessing firearms because he was on probation. ATF agents searched defendant’s house for another matter and seized twenty-two firearms. Defendant filed a motion for their return, arguing that the forfeiture of his firearms would violate his Second Amendment rights. When the district court granted the government’s motion for summary judgment, defendant appealed. The Court of Appeals affirmed, noting that the Sixth Circuit has continued to recognize a collective, rather than an individual right to possess firearms under the Second Amendment. The court found that the district court properly concluded that the firearms were subject to seizure because defendant was a convicted felon whose civil rights had not been restored.
Gorley v. Snyder, No. 99-6650, 2001 U.S. App. LEXIS 24224 (6th Cir. Nov. 2, 2001) (unpublished decision)
Petitioner, a felon, was convicted of possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Petitioner filed a habeas corpus petition, alleging that the statute impermissibly infringed upon the Second Amendment. While the court’s decision to affirm the dismissal of the petition was made on procedural grounds, the court also stated, without analysis, that petitioner’s claims were without merit because the conviction under 18 U.S.C. § 922(g)(1) did not violate the Second Amendment.
United States v. Napier, 233 F.3d 394 (6th Cir. 2000)
Affirmed denial of motion to dismiss a federal indictment under
18 U.S.C. § 922(g)(8), which proscribes the possession of firearms
by persons subject to a domestic violence restraining order.
The Sixth Circuit rejected defendant’s claim that the statute violated the Second Amendment citing its previous decision in United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976) that the Second Amendment guarantees a collective rather than an
individual right and that even the collective right is limited to
keeping and bearing arms which have some reasonable relationship to
the preservation of a well regulated militia. Napier 233 F.3d at 402.
Emphasizing that all six circuits that "have had occasion to address the issue ha[ve] upheld section 922 generally against challenges under the Second Amendment," the Sixth Circuit noted that the decision in United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999), cert. denied, 541 U.S. 1081 (2004) (finding that 18 U.S.C. § 922(g)(8) is unconstitutional) is unique:
Emerson stands alone in holding that the Second Amendment guarantees an individual right to bear arms. Even a sister district court in Texas declined to follow Emerson, choosing instead to follow the majority path. See United States v. Spruill, 61 F. Supp. 2d 587, 591 (W.D. Tex. 1999). We find no reason to retreat from our determination in Warin that the Second Amendment does not guarantee an individual right to bear arms, and we accordingly hold that section 922(g)(8) does not violate the Second Amendment.
Napier, 233 F.3d. at 404.
United States v. Metcalf, No. 99-1667, 2000 U.S. App. LEXIS 15752 (6th Cir. June 28, 2000) (unpublished decision), cert. denied, 531 U.S. 1053 (2000)
Affirmed defendant’s convictions for possession of weapons and conspiracy to assault federal employees in violation of numerous federal statutes. Defendant claimed that he had the right, under the Second Amendment, to keep semiautomatic and automatic firearms and explosives. The court, citing United States v. Miller, 307 U.S. 174 (1939) (holding that the Second Amendment does not nullify limitations on firearms that do not have a reasonable relationship to a well-regulated militia), disagreed, stating that "[t]his is simply not the law." Id. at *8.
Tidik v. Warnick, No. 98-1341, 1999 U.S. App. LEXIS 8176 (6th Cir. Apr. 23, 1999) (unpublished decision)
Affirmed defendant police officers’ motion for summary judgment
in plaintiff’s civil rights suit alleging, among other claims,
that defendants violated plaintiff’s Second Amendment rights when
they accompanied plaintiff’s wife to the couple’s home and
allowed her to retrieve his firearms following a domestic dispute
between the couple. The court denied plaintiff’s Second
Amendment argument without explicitly analyzing the Second Amendment
claim.
United States v. Baker, 197 F.3d 211 (6th Cir. 1999), cert. denied, 528 U.S. 1197 (2000)
Affirmed defendant’s conviction and sentence for unlawful possession of a firearm (the firearm at issue was an SKS assault rifle) while subject to a domestic violence restraining order under 18 U.S.C. § 922(g)(8), rejecting defendant’s constitutional challenges to that statute. The court held there is no fundamental right to possess an assault rifle and because the statute is rationally related to the government’s interest in decreasing violence against women, it survives rational basis review. Id. at 216. The court also rejected the reasoning of United States v. Emerson, 46 F.Supp. 2d 598, 613 (N.D. Texas 1999), cert. denied, 541 U.S. 1081 (2004), which struck down the same statute under the due process clause and the Second Amendment.
Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522 (6th Cir. 1998)
In an action challenging the validity of a city ordinance
regulating sale, display, loan, acquisition, and possession of
assault weapons, the Sixth Circuit “note[d] that the Federal
Constitution does not provide a right to possess an assault
weapon.” Id. at 538. Moreover, the Second
Amendment is inapplicable to a city ordinance because the Second
Amendment operates only as a restraint upon the federal
government. Id. at 539 n.18.
United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied, 426 U.S. 948 (1976)
The Court of Appeals affirmed defendant’s conviction for
possessing an unregistered machine gun in violation of federal law,
rejecting defendant’s Second Amendment challenge to that law,
noting that the mere “fact that the defendant . . . in common with
all adult residents and citizens of Ohio, is subject to enrollment
in the militia of the State confers upon him no right to possess the
submachine gun in question.” Id. at 106. The
court also noted that even “where the Second Amendment is
applicable, it does not constitute an absolute barrier to
congressional regulation of firearms.” Id. at 107.
The court further characterized as an “erroneous supposition”
defendant’s argument that “the Second Amendment is concerned
with the rights of individuals rather than those of the States . . .
.” Id. at 108.
United States v. Birmley, 529 F.2d 103 (6th Cir. 1976)
Appellate court affirmed defendants’ convictions under federal
statutes prohibiting possession of unregistered sawed off shotguns,
summarily rejecting defendants’ claim that the federal statutes
violated their Second Amendment rights. Id. at 107.
United States v. Day, 476 F.2d 562 (6th Cir. 1973)
Defendant was convicted under federal laws prohibiting possession
or transporting of firearms by a person who has been dishonorably
discharged from the Armed Forces and for engaging in the business of
firearms sales without a license. The court rejected his
Second Amendment challenge to the convictions, stating that
“[t]here is no absolute constitutional right of an individual to
possess a firearm.” Id. at 568 (citation omitted).
United States v. Wilson, 440 F.2d 1068 (6th Cir. 1971)
Defendant was convicted of dealing in firearms and possessing a sawed-off shotgun. Defendant alleged that the statute under which he was convicted violated the Second Amendment. The Court of Appeals summarily rejected defendant’s Second Amendment argument, citing United States v. Freed, 401 U.S. 601 (1971). Wilson, 440 F.2d at 1069.
Stevens v. United States, 440 F.2d 144 (6th Cir. 1971)
Rejected Commerce Clause and Second Amendment Challenges to
defendant’s conviction under federal law prohibiting a felon from
possessing, receiving or transporting in commerce a firearm.
The court held that Congress has the power to make it a crime for a
convicted felon to possess a firearm without requiring proof of a
connection between such possession and interstate commerce. As
to the Second Amendment challenge, the court stated “[s]ince the
Second Amendment right ‘to keep and bear Arms’ applies only to
the right of the State to maintain a militia and not to the
individual’s right to bear arms, there can be no serious claim to
any express constitutional right of an individual to possess a
firearm.” Id. at 149 (citation omitted).
District Courts
Wilson v. United States, NO. 3:05-0238, 2006 U.S. Dist. LEXIS 19594 (M.D. Tenn. Feb. 17, 2006)
Seeking a declaratory judgment, plaintiff, a convicted felon, argued that 18 U.S.C. § 922(g)(1) (which makes it unlawful for a person convicted of a crime punishable by more than one year to possess or sell firearms) violated the Second Amendment. Criticizing the plaintiff’s proposed reliance on and interpretation of United States v. Emerson, 270 F. 3d 203 (5th Cir. 2001), cert. denied, 541 U.S. 1081 (2004), the court noted that while the Fifth Circuit held in Emerson that the Second Amendment provides some protection to individual Americans, that protection is not unlimited. "In fact, Emerson held that § 922(g)(8) … is not an unconstitutional violation of the Second Amendment." Id. at 15.
Petrovski v. Fed. Express Corp., 210 F. Supp. 2d 943 (N.D. Ohio 2002)
Plaintiff worked as a courier for Federal Express. During this
employment he often engaged in conversation with a customer’s
employees referring to his interest in firearms, his attendance at
gun shows, and his shooting on weekends. These conversations led the
customer to file a complaint with Federal Express, ultimately
leading to plaintiff’s discharge. Plaintiff argued that his
discharge was a violation of public policy as embodied by the Second
Amendment. The court rejected this argument, noting that it was
plaintiff’s conversation about firearms that led to his discharge,
rather than his actual possession of firearms. Nonetheless, the
court stated that even if his possession of a firearm had led to his
discharge, his claim would fail due to lack of state action, since
the policies embodied in the Second Amendment are limited to
government action rather than the relationships between private
individuals or any individual right.
United States v. Visnich, 65 F. Supp. 2d 669 (N.D. Ohio 1999)
Trial court denied defendant’s motion to dismiss his federal indictment under 18 U.S.C. § 922(g)(8) – a federal statute making it illegal to possess firearms and ammunition while subject to a restraining order prohibiting him from harassing, stalking, or threatening his wife and children -- which he challenged on the grounds the statute violated his Second Amendment rights. The court followed Sixth Circuit precedent holding the amendment protects only a collective right. Id. at 671.
Pencak v. Concealed Weapon Licensing Bd., 872 F. Supp. 410 (E.D. Mich. 1994)
Granted summary judgment in favor of defendant state licensing
board, finding that the board did not violate the Second Amendment
when it denied petitioner a concealed weapons license. The
court stated that plaintiff’s Second Amendment claim was not
viable because the Amendment does not apply to state action, but is
an amendment that “has no other effect than to restrict the powers
of the federal government.” Id. at 413.
SEVENTH CIRCUIT
Court of Appeals
United States v. Lawton, 366 F.3d 550 (7th Cir. 2004)
After failing to disclose to a gun dealer that he had been charged with a felony offense, defendant was convicted of violating 18 U.S.C. § 924(a)(1)(A), which makes it unlawful for an individual to make a false statement to a federal firearms licensee. Defendant raised for the first time on appeal a constitutional challenge to the statute, contending that the Second Amendment protects an individual’s right to bear arms. The court rejected the claim, relying on Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000), which rejected the proposition that an individual has a right to bear arms. The Court also noted that even if it "assumed for the sake of argument that the Second Amendment embraces an individual’s right to bear arms . . . there can be little doubt about the government’s authority to regulate" firearms. Id. at 554.
United States v. Price, 328 F.3d 958 (7th Cir. 2003)
Defendant, convicted of using a firearm in a crime of violence and possession of a firearm by a felon, appealed on the basis that the felon in possession statute violated the Second Amendment. Citing Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 529 U.S. 1116 (2000), the court rejected defendant’s claim, holding that Second Amendment rights are granted to the people collectively, not to the individual. Price, 328 F.3d. at 961.
United States v. Jackubowski, No. 02-3621, 63 Fed. Appx. 959 (7th Cir. Apr. 30, 2003) (unpublished decision), cert. denied, 540 U.S. 993 (2003)
Under 18 U.S.C. § 922(g)(1), defendant was prohibited from possessing a firearm after a felony conviction. Defendant challenged the constitutionality of this statute under the Second Amendment, arguing that the Second Amendment reserves to the states the power to regulate firearms. The court rejected this argument, reasoning that United States v. Miller, 307 U.S. 174 (1939) unambiguously held that the federal government may play some role in the regulation of firearms. The court characterized defendant’s argument as a Tenth Amendment argument in disguise, but ruled that it was doomed either way under prior case law, which has repeatedly upheld federal firearms laws. Furthermore, the court pointed out that even the Fifth Circuit (the lone circuit to hold that the Second Amendment guarantees an individual rather than a collective right) does not contend that the Second Amendment prevents federal regulation of firearms possession.
Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000)
Rejected defendant’s Second Amendment challenge to federal
statute prohibiting persons convicted of domestic violence offenses
from possessing firearms, because of which defendant lost his job as
a police officer. The Seventh Circuit noted that “[t]he link
that the [Second] amendment draws between the ability ‘to keep and
bear Arms’ and ‘[a] well regulated Militia’ suggests that the
right protected is limited, one that inures not to the individual
but to the people collectively, its reach extending so far as is
necessary to protect their common interest in protection by a
militia.” Id. at 710. (citing U.S. Const. amend. II).
The court did note that defendant had standing to raise the Second
Amendment challenge; he simply did not have any persuasive arguments
on the merits.
Justice v. Elrod, 832 F.2d 1048 (7th Cir. 1987)
Plaintiff brought a civil rights action against the sheriff and other government officials, alleging that the practice of searching people entering a courthouse and subsequent confiscation of any guns that were discovered violated the Second Amendment. Id. at 1048. The court rejected the claim on the basis of Presser v. Illinois, 116 U.S. 252 (1886), which held that the Second Amendment is not applicable to state actions. Elrod, 832 F.2d at 1051.
Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984)
Plaintiff-Appellant challenged the constitutionality of Chicago
ordinances regulating the possession and registration of firearms
and ammunition, contending the ordinances unlawfully discriminated
against persons who moved or will move into Chicago after the
effective date of the ordinances. The court affirmed the trial
court’s denial of the challenge, finding the classifications made
by the ordinances were rationally related to legitimate state
purposes. Id. at 640.
“The Chicago handgun ordinance does not impinge upon any
federal constitutional right to bear arms. This court held
recently that the second amendment regulates only the activities of
the federal government—not those of the states or their
subdivisions. Nor is the asserted right to
bear arms pivotal in the effective exercise of constitutionally
guaranteed rights. Therefore, the second
amendment does not require us to apply the compelling government
interest standard to this ordinance.” Id. (citations omitted).
Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983)
Affirmed the trial court’s decision upholding a village
ordinance prohibiting the possession and sale of handguns within the
village borders on the grounds that the Second Amendment does not
apply to the states and that the “right to keep and bear arms
extends only to those arms which are necessary to maintain a well
regulated militia.” Id. at 270 (footnote omitted).
The court also affirmed the trial court’s findings that the
ordinance did not violate the Illinois constitutional provision
granting individual citizens the right to bear arms. Id.
at 265-68.
United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288 (7th Cir. 1974)
Approved in dictum the district court’s rejection of defendant’s argument that a federal statute prohibiting possession of firearms by a previously convicted felon infringes on rights protected by the Second Amendment. Id. at 1290 n.5.
United States v. McCutcheon, 446 F.2d 133 (7th Cir. 1971)
Affirmed trial court conviction of defendant for violations of the federal Gun Control Act. Both courts rejected defendant’s constitutional claim, including his claim that the law at issue violates the Second Amendment. Followed United States v. Miller, 307 U.S. 174 (1939).
United States v. Lauchli, 444 F.2d 1037 (7th Cir. 1971), cert. denied, 404 U.S. 868 (1971)
Defendant was convicted for numerous violations of the National
Firearms Act and the federal Gun Control Act. He appealed on a
number of grounds, including a claim that the Gun Control Act
violates the Second Amendment. The court summarily rejected
this argument, relying on Cases v. United States, 131 F.2d
916 (1st Cir. 1942).
District Courts
United States v. Moses, No. 05-CR-200, 2005 U.S. Dist. LEXIS 37141 (E.D. Wis. Dec. 16, 2005)
Defendant, charged with violating 18 U.S.C. § 922(g), moved to dismiss his indictment, claiming that his Second Amendment rights had been infringed. The court rejected defendant’s attempt to rely on the Fifth Circuit’s decision in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 541 U.S. 1081 (2004), for the proposition that the Second Amendment guarantees a fundamental individual right to bear arms. The court held that it was bound by Seventh Circuit precedent, including Gillepsie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999) ("[T]he Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia").
United States v. Greenwood, Crim. No. 03-40025-01-JLF, 2005 U.S. Dist. LEXIS 18073 (S.D. Ill. Aug. 19, 2005)
Defendant, charged with multiple firearms violations, including the violation of 18 U.S.C. § 922(g)(1) (prohibiting a felon from possessing a firearm), moved to dismiss his indictment, claiming that the statute violated the Second Amendment. The court rejected the motion, noting that the argument had been rejected on "numerous occasions" and pointing to United States v. Wilson, 2002 U.S. Dist. LEXIS 20171 (N.D. Ill. Oct. 18, 2002) (rejecting a similar challenge) and Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999) ("[t]he Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia").
United States v. Yeley, TH04-CR-01-T/L, 2004 U.S. Dist. LEXIS 24414 (S.D. Ind. Oct. 19, 2004)
Defendant was charged with violating 18 U.S.C. § 922(g)(1) (possession of a firearm by a felon) and filed a motion to dismiss on the ground that the statute violated the Second Amendment. In denying defendant's motion, the court stated that the right protected by the Second Amendment "inures not to the individual but to the people collectively, its reach extending so far as necessary to protect their common interest in protection by a militia." Yeley, 2004 U.S. Dist. LEXIS 24414, at *3 (quoting Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999).
Zieman v. City of Chicago, No. 02 C 6616, 2004 U.S. Dist. LEXIS 14922 (N.D. Ill. Aug. 2, 2004)
When plaintiff was charged with failing to register his firearms as required by Chicago Municipal Code § 8-20-040(a), he brought an action against the city claiming that the ordinance violated the Second Amendment. The court dismissed plaintiff's claim, holding that the Second Amendment applies only to the federal government and not to the states or their subdivisions.
United States v. Wilson, No. 01 CR 847, 2002 U.S. Dist. LEXIS 20171 (N.D. Ill. Oct. 18, 2002) (unpublished decision)
Defendant argued that 18 U.S.C. § 922(g)(1) violated his Second Amendment rights. Defendant was convicted under this statute as a felon in possession of a firearm. The court noted that defendant had failed to show that his inability to carry a firearm had any relationship to the preservation or efficiency of a well regulated militia, as required for a Second Amendment claim under Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999). Additionally, the court rejected defendant's claim that he had an individual, rather than a collective right to possess a firearm, noting that even under the Fifth Circuit's expansive view of the Second Amendment in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 541 U.S. 1081 (2004), the defendant (a felon), would be precluded from possessing a firearm.
Manos v. Caira, 162 F. Supp. 2d 979 (N.D. Ill. 2001)
In a civil rights action under 42 U.S.C. § 1983, the court granted a motion to dismiss plaintiff's claim that the local police department's failure to return firearms that were lawfully owned and registered by plaintiff, stolen from plaintiff's residence in a burglary, and held as evidence by the police violated the Second Amendment. In dismissing the claim, the court held that the Second Amendment "regulates only the activities of the federal government—not those of the states or their subdivisions." Id. at 989 (citation omitted).
United States v. Gross, 313 F. Supp. 1330 (S.D. Ind. 1970), aff'd, 451 F.2d 1355 (7th Cir. 1971)
Defendant, convicted of knowingly engaging in the business of dealing in firearms without a license, sought to dismiss his indictment on the ground that the statute under which he was convicted violated the Second Amendment. Citing United States v. Miller, 307 U.S. 174 (1939), the court rejected the defendant's argument, finding that the defendant was not able to prove that requiring dealers in firearms to have licenses impaired the efficiency of a well-regulated militia. Gross, 313 F. Supp. at 1334.
EIGHTH CIRCUIT
Court of Appeals
United States v. Pfeifer, 371 F.3d 430 (8th Cir. 2004)
Defendant conditionally pled guilty to violating 18 U.S.C. § 922(g)(9) (prohibiting possession of a firearm by any person convicted of a misdemeanor crime of domestic violence) and appealed his conviction on the ground that it violated the Second Amendment. The court affirmed defendant's conviction, stating that "the Second Amendment does not guarantee the right to possess a firearm unless the firearm has some reasonable relationship to the maintenance of a militia." Id. at 438.
United States v. Lippman, 369 F.3d 1039 (8th Cir. 2004), cert. denied, 543 U.S. 1080 (2005)
Defendant argued that his conviction for being a felon in possession of a firearm violated the Second Amendment. The court cited its earlier decisions holding that the Second Amendment protects the right to bear arms "when it is reasonably related to the maintenance of a well regulated militia." Id. at 1043-44 (citations omitted). The court found that the defendant had not shown that his firearm possession was reasonably related to a well regulated militia and rejected the Second Amendment claim. Id.
United States v. Wilson, 315 F.3d 972 (8th Cir. 2003), cert. denied, 539 U.S. 968 (2003)
Defendant argued that 18 U.S.C. § 922(g)(1), which
prohibits a felon from possessing a firearm, violates his individual right to
bear arms under the Second Amendment. The court rejected this argument, noting
the established Eighth Circuit precedent upholding the constitutionality of such
federal regulation under the Second Amendment.
Schaffer v. United States, No. 01-2522, 27 Fed. Appx. 711 (8th Cir. Nov. 13, 2001) (unpublished decision)
Citing United States v. Waller, 218 F.3d 856, 857 (8th Cir. 2000) (per curiam), the court rejected the appellant’s claim that his Second Amendment rights were violated when he pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ("it is now well-settled that Congress did not violate the Second Amendment in enacting [section 922(g)(1)]").
United States v. Lewis, 236 F.3d 948 (8th Cir. 2001)
Defendant was convicted under 18 U.S.C. § 922(g)(9), which prohibits a person convicted of a misdemeanor crime of domestic violence from possessing a firearm that has traveled in interstate commerce. Defendant challenged the constitutionality of this statute under the Second Amendment and the court dismissed his argument citing United States v. Smith, 171 F.3d 617 (8th Cir. 1999) and United States v. Turcotte, 558 F.2d 893 (8th Cir. 1977).
United States v. Waller, 218 F.3d 856 (8th Cir. 2000)
Defendant was convicted of seventy-four counts of being a felon in possession of firearms, ammunition and explosives and of making false statements to a firearms dealer, in violation of 18 U.S.C. §§ 842(i)(1), 922(a)(6) and 922(g)(1). On appeal, defendant argued the conviction should be overturned because the statutes under which he was convicted were violative of the Second Amendment. The appellate court rejected his challenge, stating
"
[u]nfortunately for Waller it is now well-settled that Congress did not violate
the Second Amendment in enacting the statutes in question). Waller, 218 F.3d at 857.
United States v. Smith, 171 F.3d 617 (8th Cir. 1999)
Trial court denied defendant’s motion to dismiss his indictment
for violation of federal firearms laws based on equal protection
grounds. The appellate court affirmed and held that the
rational basis standard, and not strict scrutiny, applied because there is no fundamental right to bear arms under the
Second Amendment unless possession of a weapon has a reasonable
relationship to the militia.
United States v. Farrell, 69 F.3d 891 (8th Cir. 1995), cert. denied, 516 U.S. 1181 (1996)
Affirmed defendant’s convictions for unlawful possession and
transfer of machine guns under 18 U.S.C. §§ 922(a) and
924(a)(2),
holding that a “knowing” violation of the statutes required
proof only of knowing and intentional conduct, not knowledge of the
specific statutory offense, and also noting defendant’s Second
Amendment argument had no merit because defendant “failed to make
a fact-specific showing that possession of the regulated weapons
bears a ‘reasonable relationship to the preservation or efficiency
of a well regulated militia.’” Id. at 894 (citation omitted).
United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993)
Defendant was convicted of several federal firearms violations
including 18 U.S.C. § 922(o) (possession of a machine gun). On
appeal, defendant challenged the statutes as violative of the Second
Amendment. Finding unpersuasive defendant’s argument that
mere ownership of a military weapon by an individual eligible for
membership in the state militia triggers Second Amendment
protection, the Eighth Circuit affirmed the conviction. The
court stated that “it is not sufficient to prove that the weapon
in question was susceptible to military use,” but that the
claimant of Second Amendment protection “must prove that his or
her possession of the weapon was reasonably related to a well
regulated militia” Id. at 1020 (emphasis in original) (citing Cases v. U.S., 131 F.2d 916 (1st Cir. 1942)).
The court also noted that no federal court has found mere possession of a military weapon to be "‘reasonably related to a well regulated militia’" following the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939). Hale, 978 F.2d at 1020. Finally, the court emphasized that the purpose of the Second Amendment is to restrain the federal government’s regulation of the possession of arms related to a state militia, not to an individual’s possession of any firearms. Id.
United States v. Nelsen, 859 F.2d 1318 (8th Cir. 1988)
Defendant appealed his conviction for violating the federal
Switchblade Knife Act claiming a fundamental right to bear arms
embodied in the Second Amendment. The Court of Appeals
rejected the challenge, stating defendant’s claim “has not been
the law for at least 100 years.” Id. at 1320.
Fields v. Harris, 675 F.2d 219 (8th Cir.), cert. denied sub nom. Fields v. Schweiker, 459 U.S. 869 (1982)
Plaintiff, a federal employee, was terminated after allegedly
assaulting a co-worker with a knife. She made a claim for
wrongful termination on the theory that there is a substantive
constitutional right to self-defense under the Second, Fifth, and
Eighth Amendments. The district court dismissed the lawsuit
and the appellate court affirmed, holding that self defense is a
common law principle and not a right inferred by the Constitution,
and that plaintiff had failed to timely pursue her self defense
claim in the proper forum, the Court of Claims, which had exclusive
jurisdiction over the employment issue. Id. at 220.
United States v. Turcotte, 558 F.2d 893 (8th Cir. 1977)
Affirmed defendant’s conviction under 18 U.S.C. §
922(a)(6),
holding that the federal statute regulating the purchase and receipt
of a firearm transported in interstate commerce did not obstruct the
maintenance of a well-regulated militia, and thus did not violate
defendant’s rights under the Second Amendment. Id. at
895.
Cody v. United States, 460 F.2d 34 (8th Cir. 1971), cert. denied, 409 U.S. 1010 (1972)
Affirmed defendant’s conviction under 18 U.S.C. §
922(a)(6) which criminalizes any false statements to a licensed firearms
dealer in connection with the purchase of a firearm, rejecting
defendant’s Second Amendment challenge to the statute because
“the Second Amendment’s guarantee extends only to use or
possession which ‘has some reasonable relationship to the
preservation or efficiency of a well regulated militia.’” Id. at 36 (citation omitted).
United States v. Decker, 446 F.2d 164 (8th Cir. 1971)
Affirmed defendant firearms dealer’s conviction for numerous violations of the federal Gun Control Act, rejecting defendant’s constitutional claims on appeal. Reiterated the Supreme Court’s rationale in United States v. Miller, 307 U.S. 174 (1939) that the Second Amendment applies only when the possession or use of firearms relates to a well regulated militia, and rejected the argument that the record-keeping requirements imposed on federally-licensed firearms dealers by the Gun Control Act infringe upon any Second Amendment right to bear arms. Id. at 166.
United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972)
Affirmed defendant’s conviction under 18 U.S.C. § 1202(a) prohibiting possession of a firearm by a convicted felon. Rejected defendant’s Second Amendment challenge to the statute, relying on the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939). Also rejected defendant’s equal protection challenge to that statute finding the classification rationally related to legitimate public safety purposes, stating "we decide only that the right to bear arms is not the type of fundamental right to which the ‘compelling state interest’ standard attaches." Id. at 771 n. 9 (citations omitted).
District Courts
Lacher v. United States, No. 05-3175-CV-S-RED, 2006 U.S. Dist. LEXIS 26226 (W.D. Mo. March 23, 2006)
Defendant appealed his conviction for violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which prohibit a person convicted of a crime punishable by more than one year from possessing a firearm, arguing that his conviction violated the Second Amendment. The court, noting that the defendant neither pled nor proved facts establishing his possession of firearms was in any way related to preservation of a militia, rejected his argument, relying on United States v. Pfeifer, 371 F.3d 430 (8th Cir. 2004) and United States v. Hale, 978 F.2d 1016 (8th Cir. 1993) (both holding that the Second Amendment does not guarantee the right to possess a firearm unless the firearm has some reasonable relationship to the maintenance of a militia).
Blackburn v. Jansen, 241 F. Supp. 2d 1047 (D. Neb. 2003)
Plaintiff argued that
18 U.S.C. § 922(g)(9) (prohibiting a person
convicted of a misdemeanor crime of domestic violence from
possessing a firearm in interstate commerce) violated his Second
Amendment rights. The court rejected this argument, holding that
“the Second Amendment does not confer an absolute and unfettered
right to bear arms,” and noted that cases in this area have
analyzed the Amendment in terms of protecting militias rather than
the rights of individuals. Id. at 1015. The court also foreclosed plaintiff’s argument based on its holding in United States v. Lewis, 236 F.3d 948 (8th Cir. 2001) upholding the constitutionality of the same statute.
Klingler v. Erickson, 328 F. Supp. 674 (D. S.D. 1971)
Defendant, a convicted felon, was convicted of transporting a
firearm in violation of 15 U.S.C. § 902(e). Defendant
filed a petition for habeas corpus, alleging that the statute
violated the Second Amendment. The court rejected this
argument, stating that the statute does not violate the Second
Amendment under Eighth Circuit precedent. See United States v.
Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other
grounds, 404 U.S. 1009 (1972) (rejecting defendant’s Second
Amendment challenge to his conviction for possessing a firearm while
a convicted felon).
NINTH CIRCUIT
Court of Appeals
United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003), cert. granted, vacated, 545 U.S. 1112 (2005), rev’d, 451 F.3d 1071 (9th Cir. 2006)
On remand from the Supreme Court after Gonzales v. Raich, 545 U.S. 1 (2005) (upholding congressional commerce powers), the court reconsidered its earlier holding that 18 U.S.C. § 922(o) (prohibiting possession of a machine gun that has been involved in interstate commerce) was an invalid exercise of Congress’ commerce clause power. United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003). The court upheld the constitutionality of 18 U.S.C. § 922(o) in light of Raich, and once again rejected defendant’s claim that his conviction under 18 U.S.C. § 922(o) violated his Second Amendment rights. Relying on Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), rehearing en banc denied, 328 F.3d 567 (9th Cir. 2003) (the Second Amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession), the court rejected defendant’s claim. Stewart, 348 F.3d at 1142.
United States v. Mascak, No. 04-30279, No. 04-30321, No. 04-30313, No. 04-30322, 143 Fed. Appx. 72 (9th Cir. Aug. 5. 2005) (unpublished decision)
The court rejected defendant’s claim that his conviction under 18 U.S.C. §§ 922(a)(1)(A) and 922(a)(5) (prohibiting dealing in firearms without a license and selling firearms to an out-of-state resident). The court relied on Silveira v. Lockyer, 312 F.3d 1052, 1066, 1074-75 (9th Cir. 2003), rehearing en banc denied, 328 F.3d 567 (9th Cir. 2003) (rejecting the concept of an individual right to bear arms).
United States v. Younger, 398 F.3d 1179 (9th Cir. 2005)
Defendant was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appealed the conviction on the ground that it violated the Second Amendment. In affirming defendant's conviction, the court ruled that 18 U.S.C. § 922(g)(1) was consistent with the Second Amendment because the Amendment does not confer an individual right to possess arms.
United States v. Newmeyer, No. 03-30232, 84 Fed. Appx. 907 (9th Cir. Dec. 22, 2003) (unpublished decision)
Defendant appealed his conviction for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), claiming that the statute violated the Second Amendment. The court rejected this claim in reliance on United States v. Hancock, 231 F.3d 557 (9th Cir. 2000), which held that the Second Amendment "does not confer on individual citizens a right to bear arms." Newmeyer, 84 Fed. Appx. at 907.
Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003), rehearing en banc denied, 364 F.3d 1025 (9th Cir. 2004)
The court rejected a Second Amendment challenge to an Alameda County ordinance banning the possession of firearms and ammunition on county-owned property, holding that the claim was foreclosed by the Ninth Circuit’s holding in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996). In Hickman, the court held that individuals lack standing to raise Second Amendment challenges to firearms laws because the Amendment guarantees the collective right of the states to maintain armed militia, rather than an individual right to own or possess firearms. Rehearing en banc was denied.
United States v. Hill, No. 02-10250, 73 Fed. Appx. 209 (9th Cir. July 28, 2003) (unpublished decision)
Defendant appealed his conviction under 18 U.S.C. § 922(g)(1), a statute prohibiting felons from possessing a firearm. The court rejected defendant’s claim that the statute was unconstitutional as a violation of the Second Amendment, holding that the Second Amendment does not confer an individual right to possess firearms. Hill, 73 Fed. Appx. at 209.
United States v. Cline, No. 02-30078, 58 Fed. Appx. 249 (9th Cir. Jan. 10, 2003) (unpublished decision)
Defendant was charged with possession of a firearm in violation of 18 U.S.C. § 922(g)(9) and challenged the constitutionality of the statute under the Second Amendment. The court rejected this argument without discussion, citing Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), United States v. Hancock, 231 F.3d 557 (9th Cir. 2000), and Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), reh’g en banc denied, 328 F.3d 567 (9th Cir. 2003), cert. denied, 540 U.S. 1046 (2003).
Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), reh’g en banc denied, 328 F.3d 567 (9th Cir. 2003), cert. denied, 540 U.S. 1046 (2003)
Plaintiffs were nine individuals who acquired firearms that became classified as assault weapons following the passage of amendments to California’s Roberti-Roos Assault Weapons Control Act (AWCA) in 1999. In February 2000, plaintiffs filed suit against the Attorney General of California, challenging the requirements in the amended law—that they register, relinquish or render inoperable their assault weapons—on the grounds that the statute violated their Second Amendment rights, among others. The district court dismissed all of the plaintiffs’ claims.
The appellate court upheld the district court decision and rejected plaintiffs’ claims, holding that plaintiffs lacked standing to challenge the AWCA because, inter alia, the Second Amendment does not confer an individual right to own or possess a firearm. Id. at 1066. The court reached its opinion on the Amendment after conducting a detailed analysis of the historical debate and origins of the Amendment and reviewing the discourse on the Amendment throughout its existence. The court, guided by the results of this analysis, was "compelled to reaffirm the collective rights view" it adopted in the case Hickman v. Block, 81 F.3d 98 (9th Cir. 1996). Id. at 1066. Hickman held that the Second Amendment guarantees a collective rather than an individual right regarding the ownership and possession of firearms. Hickman, 81 F.3d at 102.
In rejecting plaintiffs’ challenges, the court emphasized that the Amendment "protects the people’s right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use." Silveira, 312 F.3d at 1066. The court cited United States v. Miller, 307 U.S. 174 (1939), when concluding that this decision "is reinforced in part by Miller’s implicit rejection of the traditional individual rights position." Id.
United States v. Hinostroza, 297 F.3d 924 (9th Cir. 2002)
Defendant argued that 18 U.S.C. § 922(g)(8) (prohibiting persons subject to domestic violence restraining orders from possessing a firearm) violated the Second Amendment. Defendant urged the court to follow United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 541 U.S. 1081 (2004), in which the Fifth Circuit discussed in dicta that the Second Amendment protects an individual right to bear arms. The court rejected this argument based on the holding in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996) that the Second Amendment only confers a collective right upon the states.
Gonzalez v. City of Bakersfield, No. 00-15596, 2000 U.S. App. LEXIS 23880 (9th Cir. Sept. 21, 2000) (unpublished decision), cert. denied, 534 U.S. 837 (2001)
Plaintiffs filed a civil rights action against defendant
municipality and police officers after police confiscated
plaintiffs’ firearms. The court rejected plaintiffs’ claim
that the defendants’ conduct violated the Second Amendment,
holding that the Amendment is a right held by the states that does
not protect the possession of a weapon by a private citizen.
United States v. Finitz, No. 99-30272, 2000 U.S. App. LEXIS 21500 (9th Cir. Aug. 17, 2000) (unpublished decision), cert. denied, 531 U.S. 1100 (2001)
Defendant alleged that his sentence under the Armed Career
Criminal Act, 18
U.S.C.S. § 924(e), violated both his
individual right to bear arms under the Second Amendment, as well as
the collective right of the state to maintain a well-regulated
militia. The court rejected these claims, noting that the
Second Amendment protects a right of the states, and not an
individual right, to maintain armed militia, and only the states may
use the Amendment to demonstrate legal injury when this right is
infringed. Id. at *6.
United States v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert. denied, 532 U.S. 989 (2001)
Affirmed defendant’s convictions under 18 U.S.C. § 922(g)(9), a statute prohibiting possession of a firearm by any person
convicted of a misdemeanor domestic violence offense. The
court rejected defendant’s equal protection claim, holding that
because the Second Amendment protects a right held by the states and
not an individual’s rights, no “fundamental right” of
defendant’s was impacted and thus the law was only required to be
rationally related to a legitimate state purpose.
Id. at 566 (citing Hickman v. Block, 81 F.3d 98, 101
(9th Cir. 1996)).
United States v. Kuehnoel, No. 97-30189, No. 97-30241, 1999 U.S. App. LEXIS 16373 (9th Cir. 1999) (unpublished decision), cert. denied, 528 U.S. 1097 (2000)
Affirmed defendant’s convictions for firearms and similar offenses in violation of 18 U.S.C. § 922(o) and § 924, arising out of his activities as a member of a private militia group. Defendant claimed in his appeal that the Second Amendment guarantees the right of individual citizens to keep machine guns and other weapons and that organized private militias have the right to possess similar weapons that are reasonably related to the militias’ preservation. The court disagreed, holding that defendant lacked standing, "either as an individual or as a member of a private militia, to challenge the constitutionality" of section 922(o) on Second Amendment grounds. Id. at *6. The court emphasized that the Amendment "is a right held by the states, and does not protect the possession of a weapon by a private citizen." Id.
United States v. Mack, 164 F.3d 467 (9th Cir. 1999)
Affirmed defendant’s convictions and rejected his Second
Amendment challenge to constitutionality of convictions for unlawful
possession of handguns with obliterated serial numbers, and
sawed-off shotguns and rifles, holding that private citizens do not
have standing to bring such a challenge.
Barsch v. Brann, No. 97-15064, 1997 U.S. App. LEXIS 23487 (9th Cir. Sept. 4, 1997) (unpublished decision), cert. denied, 523 U.S. 1073 (1998)
Plaintiff brought a civil rights claim against several police
officers and a superior court judge after the police allegedly
conducted a warrantless search of plaintiff’s residence, arrested
him, and confiscated a handgun from the residence. This
handgun was later destroyed by police, under court order by
defendant court judge. Plaintiff’s claim alleged that
defendants’ conduct violated his rights under the Second
Amendment. The court rejected this argument, holding that
rights under the Amendment are held by the states, and do not
protect the possession of weapons by a private citizen (citing Hickman
v. Block, 81 F.3d 98 (9th Cir. 1996)).
Thus, the court found that plaintiff had no standing to bring the
claim.
San Diego County Gun Rights Comm., v. Reno, 98 F.3d 1121 (9th Cir. 1996)
Unincorporated associations and private individuals challenged the constitutionality of Title XI of the Violent Crime Control and Law Enforcement Act of 1994, alleging it violated their Second Amended rights. The Ninth Circuit held that plaintiffs had no standing to pursue this challenge, citing Hickman v. Block, 81 F.3d 98 (9th Cir.), cert. denied, 519 U.S. 912 (1996). The court also explicitly rejected as an "aberrant footnote" dictum in its previous decision, United States v. Gomez, 92 F.3d 770 (9th Cir. 1996), in which one of the judges on the panel had suggested that the Second Amendment might embody an individual right to self-defense. San Diego County Gun Rights, 98 F.3d at 1125 n.1. The court also held that the Ninth Amendment does not encompass an unenumerated individual right to bear arms independent of the Second Amendment. Id. at 1125.
United States v. Gomez, 92 F.3d 770 (9th Cir. 1996), reh’g denied, 92 F.3d 770 (1996)
Vacated defendant’s conviction for possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1), holding that a justification defense is available under that federal statute. The court noted in a footnote that the Second Amendment may encompass an individual "right to bear arms" to defend oneself and one’s home against physical attack. Id. at 774 n.7. The Ninth Circuit subsequently explicitly rejected this proposition in San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125 n.1 (9th Cir. 1996).
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), cert. denied sub nom. Hickman v. County of Los Angeles, 519 U.S. 912 (1996)
Hickman filed a civil rights action under 42 U.S.C. § 1983 after his application for a concealed carry weapon permit was denied by Los Angeles County Sheriff and City of Los Angeles Chief of Police. Held, based on the "seminal" Supreme Court decision in United States v. Miller, 307 U.S. 174 (1939), that an individual has no standing to raise a Second Amendment claim because "the Second Amendment guarantees the right of the states to maintain armed militia, [and] the states alone stand in the position to show legal injury when this right is infringed." Id. at 102. Based on a "plain reading" of the Amendment’s text, the Ninth Circuit also stated that "it is only in the furtherance of state security that ‘the right of the people to keep and bear arms’ is finally proclaimed." Id. (citation omitted). Reiterating that even technical membership or eligibility for enrollment in state militia is insufficient, the Ninth Circuit also emphasized that even if there were individual standing to bring a Second Amendment claim, it would fail because the Second Amendment is not incorporated into the Bill of Rights against action by state and local governments. Id. at 103 n.10.
United States v. McClain, No. 94-30004, 1995 U.S. App. LEXIS 20737 (9th Cir. July 26, 1995) (unpublished decision)
Defendant appealed his conviction under the felon in possession statute, 18 U.S.C. § 922(g), arguing that the statute violated the Second Amendment. Citing United States v. Miller, 307 U.S. 174 (1939), the court rejected defendant’s claim, holding that the Second Amendment only guarantees possession of firearms in relation to a well-regulated militia. McClain, 1995 U.S. App. LEXIS 20737 at *6.
Fresno Rifle & Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992)
Held that because the Second Amendment limits only federal
action, it has no applicability to the state law challenged.
Affirmed the dismissal of a lawsuit challenging California’s
Assault Weapons Control Act (“AWCA”), which requires the
issuance of a permit for the manufacture, sale, transfer,
possession, distribution, transportation, and importation of
numerous firearms categorized as “assault weapons.” The
Ninth Circuit summarized decisions by the Supreme Court and other
Circuits before concluding that the Second Amendment is not
incorporated into the Bill of Rights against the states through the
Fourteenth Amendment. See id. at 730.
Marchese v. California, 545 F.2d 645 (9th Cir. 1976)
Defendant sought to have his state law felony conviction set
aside and challenged on the basis of equal protection the
constitutionality of a California statute that prohibits felons from
possessing handguns. The Ninth Circuit rejected his argument
that the right to bear arms is a fundamental, individual right under
the Second Amendment. Therefore, the law was only required to
pass the rational basis test. Because the state has a
legitimate interest in minimizing the felonious use of firearms, the
classification met the rational basis standard.
United States v. Tomlin, 454 F.2d 176 (9th Cir.) (per curiam), cert. denied, 406 U.S. 924 (1972)
Per curiam decision affirming defendant’s convictions for federal firearms violations. Summarily denied defendant’s constitutional challenge to the National Firearms Act, stating that his claim that there is an individual right to bear arms under the Second Amendment has been conclusively "undermined by controlling precedent." Id. at 176 (citations omitted).
District Courts
United States v. Eyring, No. CR 95-419-PHX-RCB, 2006 U.S. Dist. LEXIS 61279 (D. Ariz. Aug. 24, 2006)
The court rejected defendant’s motion to restore his right to possess and own a firearm following a restoration of his civil rights under state law. In denying the motion, the court referred to Presser v. Illinois, 116 U.S. 252, 265 (1886), where the Supreme Court had declared that the constitutional guarantee was "a limitation only upon the power of congress and the national government, and not upon that of the states." Further, the court pointed to Ninth Circuit precedent holding that the Second Amendment "is a right held by the states and does not protect the possession of a weapon by a private citizen." Hickman v. Block, 81 F.3d 98, 100-01 (9th Cir. 1996).
United States v. Stepney, No. CR 01-0344 MHP, 246 F. Supp. 2d 1069 (N.D. Cal. July 1, 2002) (unpublished decision)
Defendants, charged with violating multiple federal firearms laws, filed a motion to dismiss on the grounds that the laws violated the Second Amendment. The court rejected defendants’ claim, stating that there had never been an instance in which a court had found that a gun statute violated the Second Amendment.
March v. Rupf, No. C 00-03360 WHA, 2001 U.S. Dist. LEXIS 14708 (N.D. Cal. Sept. 17, 2001) (unreported decision)
Defendants were individually-named sheriffs and municipal
governments in Contra Costa County, California. Plaintiff gun
owners filed suit following defendants’ denial of plaintiffs’
applications for concealed weapons licenses. The court granted
defendants’ motion for summary judgment after rejecting
plaintiffs’ claim that the defendants had violated their rights
under the Second Amendment. The court held that the “right
to bear arms” is a collective, not an individual, right and
therefore plaintiffs did not have standing to bring a Second
Amendment claim.
Golt v. City of Signal Hill, 132 F. Supp. 2d 1271 (C.D. Cal. 2001)
Granted defendants’ motion for summary judgment, holding that
city and police officers were not liable in a civil rights action
under 42 U.S.C. § 1983 brought by a bail recovery agent after his
arrest for carrying a concealed and loaded firearm. The court
held that an individual, such as plaintiff, has no standing to raise
a Second Amendment challenge, because the right protected pertains
to the right of states to arm their militias. Id. at
1277.
TENTH CIRCUIT
Court of Appeals
United States v. Carpenter, No. 05-8010, 163 Fed. Appx. 707 (10th Cir. Jan. 18, 2006) (unpublished decision)
The court rejected defendant’s argument that his conviction under 18 U.S.C. § 924(c) violated the Second Amendment, finding that the defendant waived any such claim by unconditionally pleading guilty to the firearm charge. Further, the court noted that even if the defendant had not waived the claim, there was no Second Amendment violation, since he had admitted the firearm was not for use in connection with a "well-regulated militia" (relying on United States v. Parker, 362 F.3d 1279 (10th Cir. 2004)).
United States v. Parker, 362 F.3d 1279 (10th Cir. 2004)
Defendant, convicted of carrying a loaded firearm on a military base, appealed on the ground that the conviction violated the Second Amendment. Relying on United States v. Miller, 307 U.S. 174 (1939), the court rejected defendant’s claim, holding that in order to prove a Second Amendment violation, one must first show that the alleged possession of the firearm was related to participation in a well-regulated state militia. Parker, 362 F.3d at 1282.
United States v. Rhodes, No. 02-6280, 62 Fed. Appx. 869 (10th Cir. Mar. 27, 2003) (unpublished decision), cert. denied, 124 S.Ct. 194 (2003)
Defendant, convicted of knowingly possessing a stolen firearm, appealed on the ground that the statute under which he was convicted violated the Second Amendment. The court rejected defendant’s claim, relying on its decision in United States v. Baer, 235 F.3d 561 (10th Cir. 2000), which held that the Second Amendment only confers rights in relation to a well-regulated militia. Rhodes, 62 Fed. Appx. at 876.
United States v. Wynne, No. 01-6386, 2003 U.S. App. LEXIS 186 (10th Cir. Jan. 7, 2003) (unpublished decision), cert. denied, 540 U.S. 903 (2003)
Defendant argued that 18 U.S.C. § 922(g)(8) (prohibiting persons subject to domestic violence restraining order from possessing a firearm) violated the Second Amendment. The court rejected this argument, relying on its decision in United States v. Bayles, 310 F.3d 1302 (10th Cir. 2002). In Bayles, the court developed a four-factor test that must be satisfied before one can establish a violation under the Second Amendment: (1) that he or she is part of a state militia; (2) the militia, and his or her participation therein, is "well regulated" by the state; (3) the guns in question are used by that militia; and (4) his or her possession of the guns was reasonably connected to his or her militia service. Bayles, 310 F.3d at 1307. Here, defendant could not establish any of the four elements and therefore his claim failed.
United States v. Bayles, 310 F.3d 1302 (10th Cir. 2002)
Defendant was indicted for violating 18 U.S.C. § 922(g)(8), which prohibits the possession of a firearm by an individual subject to a domestic violence restraining order issued by a state court. The Court of Appeals rejected the defendant’s argument that the statute violates the Second Amendment holding that the defendant failed to meet any of the elements required to establish such a violation. The court’s test required the defendant to establish: 1) his participation in a state militia; 2) that the militia, and his participation therein, was “well regulated by the state;” 3) that his firearms were used by said militia; and 4) that his possession of the firearms was reasonably connected to this militia service. Bayles, 310 F.3d at 1306-07 (citation omitted).
United States v. Lucero, No. 01-2336, 43 Fed. Appx. 299 (10th Cir. July 26, 2002) (unpublished decision), cert. denied, 537 U.S. 1064 (2002)
Defendant argued that
18 U.S.C. § 922(o) (prohibiting possession or transfer of machine guns) violated the Second Amendment. Defendant also argued that he was a member of the
Kansas militia. The court held that defendant’s claim was foreclosed by United States
v. Haney, 264 F.3d 1161 (10th Cir. 2001). In
Haney, the court rejected a similar challenge to § 922(o) and
further held that as a threshold matter defendant must satisfy the
four-factor test outlined in United States v. Bayles, 310
F.3d 1302 (10th Cir. 2002). Finally, the court emphasized
that one must establish more than mere membership in an unorganized
militia, but rather that one is part of a well regulated, state
operated militia.
United States v. Graham, 305 F.3d 1094 (10th Cir. 2002), cert. denied, 537 U.S. 1142 (2003)
Defendant argued that by banning the sale of explosive devices,
18 U.S.C. § 842(a)(1) unconstitutionally infringed his Second
Amendment rights. The court reiterated its position that federal
weapons restrictions do not violate the Second Amendment unless they
impair the state’s ability to maintain a well regulated militia and
that the right to possess firearms is collective rather than
individual. The court applied the four-factor test used in United
States v. Bayles, 310 F.3d 1302 (10th Cir. 2002)
and found that defendant could not satisfy any of the four
factors.
United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), cert. denied, 536 U.S. 907 (2002)
Affirmed defendant’s conviction for possessing two machine guns
in violation of federal law 18
U.S.C. § 922(o). Defendant
argued that by banning possession of machine guns, section 922(o)
infringed his rights under the Second Amendment. The court
rejected this argument, holding that a federal criminal gun control
law does not violate the Second Amendment unless it impairs a
state’s ability to maintain a well-regulated militia.
The court explained that the term “militia,” as used in the
Second Amendment, refers to a governmental organization or unit, and
“does not include the private anti-government groups that
sometimes refer to themselves as ‘militias’.” Id. at 1165-66.
United States v. Baer, 235 F.3d 561 (10th Cir. 2000)
Defendant was convicted of possessing firearms following a felony
conviction in violation of 18 U.S.C. § 922(g)(1), and for
possession of firearms with obliterated serial numbers in violation
of 18
U.S.C. § 922(k). Defendant challenged his
conviction on the ground that the federal statutes violate the
Second Amendment.
In denying defendant’s “time-worn argument,” the court
explained that the Second Amendment does not guarantee any right to
keep and bear a firearm that does not have some reasonable
relationship to the preservation or efficiency of a well-regulated
militia. Id. at 564. The court stated further that federal statutes
regulating the receipt and possession of firearms by felons do not
trench upon constitutionally protected liberties, including those
guaranteed by the Second Amendment. The court added that
“[T]he circuits have consistently upheld the constitutionality of
federal weapons regulations like section 922(g) absent evidence that
they in any way affect the maintenance of a well-regulated
militia.” Id.
United States v. Rose, 695 F.2d 1356 (10th Cir. 1982), cert. denied, 464 U.S. 836 (1983)
Affirmed defendant’s convictions for possessing unregistered
semiautomatic weapons in violation of the National Firearms Act, 26 U.S.C.S. § 5845. The court summarily rejected
defendant’s argument that his prosecution violated the Second
Amendment, citing United States v. Oakes, 564 F.2d 384 (10th
Cir. 1977), cert. denied, 435 U.S. 926 (1978) (rejecting
defendant’s claim that every citizen has the absolute right to
keep arms pursuant to the Second Amendment).
United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978)
Affirmed defendant’s conviction for knowingly possessing an
unregistered machine gun, rejecting defendant’s claim that every
citizen has the absolute right to keep arms pursuant to the Second
Amendment. Id. at 387. The court also rejected
defendant’s attempt to bring himself within the purview of the
Second Amendment based on his membership in the “Posse Comitatus,
a militia-type organization registered with the state of Kansas.”
Id.
United States v. Swinton, 521 F.2d 1255 (10th Cir. 1975), cert. denied, 424 U.S. 918 (1976)
Affirmed defendant’s conviction for dealing in firearms without
a license in violation of 18 U.S.C. §
922(a)(1), a federal statute,
and stated, in dicta, that cases interpreting the relevant statute
“highlight the established principle that there is no
absolute constitutional right of an individual to possess a
firearm.” Id. at 1259.
District Courts
United States v. Arzate, 2003 U.S. Dist. LEXIS 21218 (D. Kan. Oct. 29, 2003)
Defendant, charged with possessing ammunition after being convicted of a misdemeanor domestic violence conviction, filed a motion to dismiss on the ground that the statute under which he was charged violated the Second Amendment. The court rejected defendant’s claim, stating that “even the most cursory research shows these very same arguments have been soundly rejected in this circuit and district...and has found no success in others.” Id. at *15.
United States v. Willbern, No. 99-10161-01-JTM, 2000 U.S. Dist. LEXIS 6462 (D. Kan. Apr. 12, 2000) (unreported decision)
Defendant was charged with illegal possession of a firearm under 18 U.S.C. § 922(g)(9). The court rejected defendant’s claim that 18 U.S.C. § 922(g)(9) violates the Second Amendment, holding that the Amendment "guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well-regulated militia." Id. at *5-*6.
United States v. Boyd, 52 F. Supp. 2d 1233 (D. Kan. 1999), aff’d, 211 F.3d 1279 (10th Cir. 2000)
Denied defendant’s motion to dismiss an indictment that charged
him with two counts of possession of a firearm by a person convicted
of a domestic violence misdemeanor in violation of 18 U.S.C. §
922(g)(9). Defendant’s motion was made on several
grounds, including the Second Amendment. Citing U.S. v. Oakes,
564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926
(1978) (rejecting a Second Amendment challenge because the conduct
at issue had no relation to the militia), the court concluded that
defendant had presented no arguments that would justify departing
from binding precedent.
ELEVENTH CIRCUIT
Court of Appeals
United States v. Chavez, 204 F.3d 1305 (11th Cir. 2000)
Affirmed defendant’s conviction for spousal abuse. Defendant appealed on grounds he was entitled to trial by jury,
which he had been denied. Defendant argued that certain
collateral penalties attached to his federal conviction for simple
battery of his wife made the technically “petty” offense a
serious one, which entitled him to a jury trial. One
collateral consequence of the conviction was the deprivation of his
ability to lawfully possess a firearm by virtue of 18 U.S.C. §
922(g)(9), which prohibits domestic violence misdemeanants from
possessing firearms. In rejecting the seriousness of this
“additional penalty,” the court noted that “[a]ccording to
precedent of the Supreme Court and this Court, [defendant] might not
have any claim under the Second Amendment since he has not shown his
gun possession is reasonably related to a state-run militia,” and
that even if the defendant “did have some right to bear arms[,] he
could have been deprived of it without a jury under these
circumstances.” Id. at 1313 n.5.
United States v. Wright, 117 F.3d 1265 (11th Cir. 1997), vacated in part on other grounds, 133 F.3d 1412 (11th Cir. 1998), cert. denied, 525 U.S. 894 (1998)
Affirmed defendant’s conviction for possession or transfer of machine guns and unregistered pipe bombs in violation of 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d), respectively, despite his constitutional challenges to the statutory provisions on Commerce Clause and Second Amendment grounds. The court noted that the susceptibility of these weapons to military use is meaningless. See id. at 1272. The court also rejected defendant’s proffered definition of "militia" as a broad segment of the population constituting "all males physically capable of acting in concert for the common defense." Id. at 1273. Based on the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939), the court stated it was joining every other federal court that has been called on to consider the "well regulated militia" requirement of the Second Amendment in rejecting the claim that membership in a state’s unorganized militia is sufficient to bring gun possession within the protection of the Second Amendment. Id. at 1273-74 (citations omitted) (emphasis added).
The court also rejected defendant’s argument that because Georgia statutes authorize the Governor to prescribe and establish regulations governing the unorganized militia of the state, the state’s unorganized militia is sufficiently well-regulated to trigger constitutional protection. Id. at 1274. Finally, the court declined to address whether the Second Amendment creates an "individual" or a "collective" right, stating only that all individual criminal defendants have standing to assert a constitutional challenge to the statute they are charged with violating and that no court has refused to consider a criminal defendant’s standing to challenge a conviction on Second Amendment grounds, distinguishing Hickman v. Block, 81 F.3d 98, 101-02 (9th Cir. 1996) (dismissing due to lack of standing for a civil challenge to a firearms regulation), cert. denied, 519 U.S. 912 (1996). Id. at 1274 n.18 (citation omitted).
District Courts
Nat'l Ass’n of Gov’t Employees v. Barrett, 968 F. Supp. 1564 (N.D. Ga. 1997), aff’d sub nom. Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998)
The trial court dismissed plaintiffs’ challenge to the constitutionality of the 1996 amendments to the criminal provisions of the Gun Control Act of 1968, as a result of which it became unlawful for individuals convicted of domestic violence misdemeanors to possess firearms in or affecting interstate commerce. See 18 U.S.C. § 922(g)(9). One of the plaintiffs was a deputy sheriff who had pleaded no contest to a domestic violence crime before the enactment of the amendments. The sheriff’s department dismissed him for cause because of the concern that his continued possession and use of a county-issued firearm would place him in violation of 18 U.S.C. § 922(g)(9). Plaintiff then filed the instant action seeking injunctive relief from the enforcement of 18 U.S.C. § 922(g) against him on various constitutional and other grounds. In dismissing plaintiff’s equal protection challenge to the statute, the court found that the statute did not merit strict scrutiny because individuals have no "‘fundamental’ right to bear arms" and held the statute valid under rational basis review. See id. at 1564 n.11.
Gilbert Equip. Co. v. Higgins, 709 F. Supp. 1071 (S.D. Ala. 1989), aff’d, 894 F.2d 412 (11th Cir. 1990)
Plaintiff, a firearms importer, sued the Bureau of Alcohol,
Tobacco and Firearms (ATF) after ATF denied plaintiff’s
application for a permit to import certain types of semiautomatic
shotguns. ATF determined that the shotguns were not suitable
or adaptable for sporting use. Plaintiff claimed that that the
“right to keep and bear arms” under the Second Amendment
includes the right to manufacture, import, sell and purchase
firearms, and that ATF’s ability to limit sale of the shotgun
plaintiff desired to import under 18
U.S.C. § 925(d)(3) also infringed upon the Second Amendment
rights of potential purchasers of the shotgun. 18 U.S.C. §
925(d)(3) confers on ATF the discretion to authorize or limit
importation of any firearms or ammunition that, among other
criteria, do not fall among the definitions of certain firearms
prohibited by federal law and are generally recognized as suitable
or readily adaptable for sporting purposes.
In rejecting plaintiff’s claim that the denial of the import
license violated plaintiff’s Second Amendment rights, the court
declared that no constitutional right to import firearms exists.
The court explained that to declare 18 U.S.C. § 925(d)(3)
unconstitutional would “destroy over twenty years of effort to
keep undesirable firearms from flooding into the United States.” Id. at 1090. The court noted that this conclusion was logically consistent with case precedent that holds that individuals have no absolute constitutional right to possess a firearm. See Thompson v. Dereta, 549 F. Supp. 297 (D. Utah 1982), United States v.
Swinton, 521 F.2d 1255 (10th Cir. 1975), cert.
denied, 424 U.S. 918 (1976).
United States v. Adams, 11 F. Supp. 216 (S.D. Fla. 1935)
Rejected defendant’s argument that sections of the National
Firearms Act, formerly 26 U.S.C.A. §§ 861a-861q, violate the
Second Amendment. The court stated that the Second Amendment
“does not grant the privilege to racketeers and desperadoes to
carry” shotguns, rifles or machine guns. Id. at 219. Rather, the Amendment “refers to the militia, a protective force of government, to the collective body and not
individual rights.” Id.
D.C. CIRCUIT
Court of Appeals
Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007)
Plaintiffs, residents of the District of Columbia, challenged several provisions of the District’s strict laws regulating firearms: 1) the District’s general prohibition on the registration of handguns (which effectively bans most handgun possession) (D.C. Code Ann. § 7-2502.02(a)(4)); 2) the prohibition on carrying a handgun without a license (D.C. Code Ann. § 22-4504); and 3) the requirement that all lawfully-owned firearms be kept unloaded and disassembled or bound by a trigger locking device (D.C. Code Ann. § 7-2507.02). Plaintiffs argued that these restrictions violated their rights under the Second Amendment to possess firearms that are “readily accessible” for self-defense in the home.
The court held in a 2-1 decision that the Second Amendment confers an individual, rather than a collective, right to bear arms which is not limited to participation in militia service. Concluding that the Second Amendment protects the right to possess and use firearms in the home for self-defense purposes, the court struck down the challenged provisions.
In a strongly-worded dissent, Judge Henderson wrote that the majority had misapplied controlling Supreme Court precedent, United States v. Miller, 307 U.S. 174 (1939), which held that the Second Amendment protection of the right of the people to keep and bear arms relates strictly to state militia service.
The District filed a petition for rehearing en banc on April 9, 2007.
Fraternal Order of Police v. United States, 173 F.3d 898 (D.C. Cir. 1999), cert. denied, 528 U.S. 928 (1999)
Affirmed the trial court’s order upholding two provisions of
the Gun Control Act. Rejected constitutional challenges by the
Fraternal Order of Police to two provisions of the 1996 amendments
to the Gun Control Act of 1968 based on the Second, Fifth and Tenth
Amendments and the Commerce Clause. The first amended
provision, 18 U.S.C. § 922(g)(9), makes it unlawful for any
person convicted of a domestic violence misdemeanor to posses a
firearm in or affecting interstate commerce. The second
provision, 18
U.S.C. § 925(a)(1), excludes domestic violence
misdemeanants from the class of persons exempt from the act if the
firearms in their possession are issued by the government. Initially, a panel of the D.C. Circuit held that the amended
provisions did not withstand an equal protection challenge
under rational basis scrutiny because of their harsher treatment of
domestic violence misdemeanants as compared to domestic violence
felons. Id. at 900 (citing Fraternal Order of Police
v. United States, 152 F.3d 998 (D.C. Cir. 1998)). On a
petition for rehearing by the United States, however, the D.C.
Circuit held that the amended provisions do satisfy rational basis
review, and that they do not violate substantive due process by
burdening any fundamental right.
The court held that there is no fundamental interest in
possessing a firearm in serving the community, and that the liberty
interest of pursuing a profession merits no more than procedural due
process protection. Id. at 905. The D.C. Circuit also
found unpersuasive the argument that in most states police officers
can be called into service as militia members, and therefore, a
provision preventing their possession of a firearm interferes with
the efficiency of a well-regulated militia as protected by the
Second Amendment. The court noted that not only are police
officers equally susceptible to militia service as other ordinary
citizens, but also that the federal statutes at issue did not hinder
militia service by all police officers, only by domestic violence
misdemeanants whose convictions have not been expunged. Id.
at 906.
Sandidge v. United States, 520 A.2d 1057 (D.C. Cir. 1987), cert. denied, 484 U.S. 868 (1987)
Affirmed defendant’s convictions under local laws prohibiting
carrying a pistol without a license, possessing an unregistered
firearm, and unlawfully possessing ammunition, and rejected
defendant’s claims that the laws violated his constitutional right
to keep and bear arms. Reiterated that the Second Amendment
guarantees a collective rather than an individual right, and that “the right to keep and bear arms is not a right
conferred upon the people by the federal constitution. . . .”
Id. at 1057 (internal quotations and citations omitted) (alteration in
original). Finally, the court noted that defendant did not and
could not show that possession of a handgun by an individual bears
any relationship to the District of Columbia’s desire and ability
to preserve a well-regulated militia. Id. at 1059.
District Court
Seegars v. Gonzales, 297 F. Supp. 2d 201 (D.D.C. 2004), rev'd in part (on standing grounds), 396 F.3d 1248 (D.C. Cir. 2005), en banc hearing denied, No. 04-5016 Consolidated with 04-5081, 413 F.3d 1 (D.C. Cir. 2005)
Residents of the District of Columbia challenged the constitutionality of the District of Columbia’s gun control laws. The court rejected the residents’ claims, declaring that the Second Amendment does not grant an individual right to possess weapons. Id. at 217. The court also explained that the Second Amendment is only a limitation upon Congress and has no application to the District of Columbia. Id. at 242.
United States v. Cole, 276 F. Supp. 2d 146 (D.D.C. 2003)
Defendant moved to dismiss a charge for possessing a firearm by a felon on the ground that the charge violated the Second Amendment. Citing United States v. Miller, 307 U.S. 174 (1939), the court rejected defendant’s claim, noting that other courts have consistently held that the Second Amendment grants only a collective, not individual, right related to participation in a well-regulated militia. Cole, 276 F. Supp. at 149.
|
