It’s an article of faith within the anti self defense movement that no individual has a Constitutionally protected right to be armed. The notion that complete civil disarmament is within the purview of the federal government is bolstered by their claim that “the courts have consistently ruled that the Second Amendment only confers a collective right of the states, not an individual one.” Entreaties for progress toward an unarmed populace are often accompanied by one or more gun “facts,” some of which are merely improbable while others raise serious questions about the authors’ perception of the intelligence of their target audience. We are told that guns kill 12 children a day; that having a gun in the house makes one 43 times more likely to be killed by a friend or relative; that concealed carry laws lead to ‘blood in the streets’ scenarios, that guns are the primary cause of violence, and that England’s near total gun prohibition has resulted in a peaceful society with a low crime rate. Anyone with a bent for light research knows how easily most of these factoids are discredited. But what are we to make of the claim regarding court decisions? When was the last time the Second Amendment successfully provided an affirmative defense for a gun charge?

On that point, central planning leftists have a point, albeit one resting on a hill of sand: The past 60 years—the period during which current “states’ rights” theories evolved—have not been kind to the Second Amendment. That is not to say, however, that the matter is settled law. There exist a number of Second Amendment quotations in the dicta of the concurrent Supreme Court record that clearly counter the prevailing “collective rights” view. Even more powerfully, close scrutiny of the case law underlying the issue exposes fabricated theories expanding into shameless embellishment and borderline judicial fraud. No better example exists of the bastardization of the concept of stare decisis than the sorry record of the Second Amendment in the twentieth century.

At the legal wellhead of the matter rests United States v. Miller (307 U.S. 174, 1939), the most recent of what can be called a true Second Amendment case to be heard by the Supreme Court. However, it hardly qualifies as a classic example of landmark case law. First, the hearing was entirely one sided, with the eponymous Mr. Miller nowhere to be found. The lead opinion of Justice McReynolds, while dispositive of the narrow case at hand, remains to this day a model of ambiguity that gives both sides fuel to “prove” their argument. In 1942, federal courts of appeal in the First (Cases v. United States) and Third (United States v. Tot) circuits used selective portions of the Miller decision—and carefully danced around others—to extrapolate rulings that can easily be described as prodigious leaps of logic.

The Tot court failed to find language to its liking in Miller so it went word shopping in the Federalist Papers. From that improbable source came an astounding conclusion: “this [Second] amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.” While the quoted sources—Federalist essays number 24-29 and 46—do indeed deal with standing armies, the militia, defense, and the relationship between federal and state power, not a single sentence therein can be reasonably construed to explain how the founders could have later confused “the right of the people” with “the right of the states.” Quite to the contrary, these readings—especially when considered in the entirety of the 85 installments—demonstrate a remarkable clearness of thought on the distinctions between federal, state, military, militia, and personal power. James Madison explained it succinctly in Federalist 46: The ultimate authority resides in the people alone. Madison was equally lucid when commenting on the role of an armed population as a counterweight to the potential of a federal bureaucracy run amok. Only a tendentious reading of history and a rigid predetermination of the case’s outcome can explain the essence of the Tot court’s conclusion that the founders had “coded” the Second Amendment so that, a century and a half into the future, some specially endowed jurists would discover the ability to disarm the very individuals from whom the government’s power is derived!

The Cases hearing occurred just a month later. There, the court actually took the pro Bill of Rights side in concluding that according to Miller, the “federal government can limit the keeping and bearing of arms by a single individual as well as a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.” The panel then went on to declare, essentially, that the Miller court couldn’t possibly have meant what it said. The judges proceeded to invent an additional test certain to preclude the survival of the Second Amendment claim before them by adding the requirement that anyone employing such a defense either be a current military enrollee or produce proof of having had the mental inclination to prepare for such a career.

With this triumvirate of cases as a platform, Second Amendment case law took a long snooze during the rest of the Forties and through the Fifties and Sixties. The smattering of cases loitering at the lower court level in that period produced little additional wisdom. Nor did the Seventies produce much of note: In 1971, the Sixth Circuit decided Stevens v. United States by simply echoing Tot’s “state’s rights” conclusion without attribution. In 1976, the same circuit decided United States v. Warin by citing, inter alia, the “collective right” precedent allegedly established in Stevens. On balance, that period might be said to have set the collectivists back a notch. The Eighth Circuit panel hearing U.S. v. Wiley in 1971 clearly saw the Second Amendment in the standard model by declaring criminals “a separate class whose individual right to bear arms may be prohibited.”

The Eighties produced few high-profile Second Amendment claims. Quilici v. Village of Morton Grove (1982) paved some new turf for Miller in declaring, “the right to keep and bear arms exists only as it relates to protecting the public security…” and established itself as the controlling case in the Seventh Circuit. United States v. Nelson (1988) reversed Wiley in the Eighth, shifting that circuit to the “collective rights” column. Four years later, in the same circuit, Hale (1992) referred to Miller and Warin and applied the military intention test concocted in Cases while dismissing the right to possess weapons useful in militia service as “historical residue.” The Fourth Circuit established its own case law on the Second in 1995 with Love/Pepersack, an uncreative holding citing Miller and the “unbroken record” of the subsequent lower court decisions based on it.

Controlling in the Ninth Circuit is Hickman v. Block (1996), a case that enjoyed the support of numerous amicus curiae submitted by advocates of a clarified Second Amendment. This case eventually reached the doorstep of the Supreme Court…only to be denied a writ of certiorari. To that point, the Hickman case appeared insupportable, built on the premise that Miller had “found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia.” It is notable—and to the discredit of the entire ‘collectivist’ interpretation of the Second Amendment—that no reference or even allusion to “the right of the states” appears anywhere in the seminal 1939 Miller decision.

It’s easy to conclude that the left’s grip on the ‘collective rights’ issue is at best a tenuous one. That it is built on a cascade of biased jurisprudence, misread or unread prior decisions, and the outright manufacture of historical facts and legal concepts is beginning to attract the attention of an increasing number of intellectually and judicially competent judges and legal theorists. At some point, an honest and ambitious Supreme Court is likely to recognize the necessity of cleaning up the inconsistencies in controlling Second Amendment case law that stand in contrast to an otherwise orderly set of interpretations of the rest of the Bill of Rights. It only takes four Justices to bring a case before the Supreme Court. The opinions and dicta of the present Court on related issues can lead one to believe as many as three Justices now have the temerity to face a full hearing of the Second Amendment. This means that a single new appointment could prompt a long-needed review of the neglected and battered Second Amendment.

Currently, the United States Court of Appeals for the Fifth Circuit is hearing a case based at least partially on the Second Amendment, U.S. v. Emerson. Most courts attempt to resolve cases using prior case law while avoiding setting bold, new concepts. However, there is ever increasing determination—undoubtedly hardened by the liberty-busting shenanigans of the present administration—to bring the Second Amendment issue to the fore. The court presently hearing Emerson has so far not demonstrated the hostility toward the concept of an armed citizenry that has characterized so many that have preceded it. Even more recently, a decision in a similar case in Iowa (United States v. Hutzell) creates a new conflict with Hale and Nelson, the two prior controlling Eighth Circuit holdings. Resolving disharmony among and within the lower court circuits is a fundamental function of the Supreme Court.

The Emerson case itself is messy and hardly a better example with which to test the right of lawful citizens to be armed than was Miller. In the case of the latter, the central issue remained narrow, with the broader concepts—intentionally or otherwise—left for later settlement. Emerson’s primary focus is on the Constitutionality of 18 U.S.C. 922(g)(8), the codification of the Lautenberg Bill, and it most likely will be decided on those narrow terms. Its Second Amendment issues could survive, if made part of the actual holding, to evolve into a compelling reason for the nation’s highest court to reveal once and for all whether and when the right to bear arms—once clearly a right of the people—surreptitiously became an exclusive privilege of government.

The idea of a go-for-broke Supreme Court hearing on the Second Amendment sits well with most supporters of common sense rights to self defense, while the socialist left collectively quakes in its boots at the very thought. We may not have much longer to wait.

Robert L. Caron is a KeepAndBearArms.com member and a welcome addition to our team of writers. Permission to reprint this article permitted with attribution to both him and this website.