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Dred Scott v. Sanford, 60 US (19 How.)
393, 417 (1875). The court held that if
freed blacks were citizens they would
have the rights of all citizens, including
the right “to carry arms wherever they
went.”
US v. Cruickshank, 92 US 542 (1876).
William J. Cruickshank and two other
defendants were convicted under the
Enforcement Act of May 31, 1870 for
conspiracy to deprive (black) citizens of
their right under the First Amendment
“to peaceably assemble” and their right
under the Second Amendment “to keep
and bear arms.” After being forcibly
disarmed, the black citizens were murdered.
The court conceded that both
rights existed as privileges and immunities
of citizenship, but that the Bill
of Rights “means no more than (those
rights) shall not be infringed by (US)
Congress.” Even Cruickshank’s attorney
conceded, “The right of self-defense is a
natural right; and the right to keep and
bear arms for that purpose cannot be
questioned.”
Presser v. Illinois, 116 US 252 (1886)
was nothing more than an affirmation
that a private army could be required
to obtain a permit before parading on
a public street while armed. The Court
also held, “It is undoubtedly true that all
citizens capable of bearing arms constitute
the reserved military force or reserve
militia of the United States as well
as of the states, and in view of this prerogative
of the general government…
the States cannot…prohibit the people
from keeping and bearing arms.”
US v. Miller, 307 US 174 (1939). This
is the only twentieth-century Supreme
Court case on the Second Amendment.
It deals not with individual’s right to
private arms, which the Court affirmed,
but what type of arms are protected.
Jack Miller was charged with transporting
a sawed-off shotgun in interstate
commerce without paying the appropriate
tax on such weapon under the
National Firearms Act. The trial court
dismissed the charges because the Act
violated the Second Amendment to the
US Constitution. Jack Miller departed.
“Guard with jealous attention
the public liberty. Suspect every
one who approaches that jewel.
Unfortunately, nothing will
preserve it but downright force.
Whenever you give up that force,
you are ruined.”
— Patrick Henry, during Virginia’s
ratification convention, (1788)
The federal attorney appealed directly
to the Supreme Court. No one presented
any evidence or arguments on behalf of
Miller. The Court did not inquire whether
Miller was a member of some organized
Militia, but held in the absence of
evidence it was unable to take judicial
notice that the weapon was appropriate
for the military and, thus, subject
to Second Amendment protection.
The Court specifically affirmed that all
constitutional sources, “show plainly
enough that the militia comprises all
males physically capable of acting in
concert for the common defense. These
men were expected to appear bearing
arms supplied by themselves and of the
kind in common use (by the military) at
the time.”
Our Constitution is the first in the
world to guarantee in writing that no
person shall be deprived of life, liberty,
or property without due process of law.
Our Founders considered that the right
to protect one’s life was a natural, Godgiven
right. “The right of self-defense
is a natural right; and the right to keep
and bear arms for that purpose cannot
be questioned.” 12 Perhaps this is the priority
our citizens and our government
should work harder to protect.
A final footnote
There is a temptation to think that
because we now have more advanced
technology we must now be smarter
or that our social conditions are
somehow different. As one studies our
Constitution, its history, and values, it
becomes clear that there is no new wisdom.
The Founders were dealing with
many of the same social issues we face
to this day, and their thoughts on what
made sense then are often equally valid
today. The wisdom from their time has
been born out by the modern scientific
data of our time. n
[ Bob Heinritz, an honors graduate in
management and law, is a member of the
Bar in Arizona, Illinois, and Missouri. A
former trial lawyer, he is now a business
attorney and management consultant
who specializes in strategic planning,
productivity, business turnarounds, and
preventive law. ]
1. Thomas Jefferson, Proposed Virginia Constitution (1776), Jefferson Papers
344, J. Boyd, ed. 1950
2. See, for example: [1] Don B. Kates, Henry E. Schaffer, PhD, John K. Lattimer,
MD, George B. Murray, MD, and Edwin W. Cassem, MD, “Guns and Public
Health: Epidemic of Violence, or Pandemic of Propaganda?” 62 Tennessee
Law Review 513, Spring 1995; [2] March 1994 and [3] May 1994 Journal of
the Medical Association of Georgia, Medical Association of Georgia, 938
Peachtree St, Atlanta GA 30309, (800) 282-0224; [4] Doctors For Integrity In
Research & Public Policy, Edgar A. Suter, MD, Chair, 5201 Norris Canyon Rd,
Ste 140 San Ramon CA 94583; [5] Doctors for Responsible Gun Ownership,
Claremont Institute, 250 W. 1st St, Ste 330, Claremont CA 91711, (909) 621-
6825
3. Ibid at 136
4. Ibid at 140
5. Ibid at 144
6. Mary Zeiss Stange, “Arms and the Woman: A Feminist Reappraisal,” Guns:
Who Should Have Them, David B. Kopel, Ed., Prometheus Books 1995 at 15
7. Edgar A. Suter, MD, 5201 Norris Canyon Rd, Ste 140 San Ramon CA 94583;
“Doctors for Responsible Gun Ownership,” the Claremont Institute, 250 W.
1st St, Ste 330 Claremont CA 91711, (909) 621-6825; Medical Association of
Georgia, 938 Peachtree St, Atlanta GA 30309, (800) 282-0224
8. This article was originally written in 1996; HCI has since become the Brady
Center to Prevent Gun Violence
9. 10 USC. 311(a)
10. 32 USC. §105[a] [1].
11. See That Every Man Be Armed, The Evolution of a Constitutional Right, Stephen
P. Halbrook, the Independent Institute 1984; pp. 146-152, in which
Representative John A. Bingham, draftsman of the 14th Amendment, and
Senator Thomas M. Norwood explicitly stated on the record in Congress
that the specific purpose of the 14th Amendment was to apply the protection
of the first eight amendments of the Bill of Rights to actions against
citizens by states.
12. US v. Cruickshank
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