Gun Law

What have the courts said about gun bans and laws restricting the 2nd amendment-protected rights of the populace? Basically, that all bearable arms suitable for modern warfare are protected from government interference. We the People may build, buy, own, possess, transport, carry or wear any firearm or weapon suitable for the battlefield and civilized warfare.

“The free man may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution…. As the object for which the right to keep and bear arms is secured is of a general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.” Aymette v. State, 21 Tenn 154 (1840)

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right.”  Nunn vs. State, (1846)

Chief Justice Roger Taney explained in the infamous Dred Scott decision that all free men have the right to bear arms, by indicating what would happen if Scott was indeed afforded full protection of the Bill of Rights: “It would give to persons of the negro race, … the right to enter every other State whenever they pleased, … the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” Dred Scott v. Sandford60 U.S. 393 (1857)

The major Tennessee case, Andrews v. State, (1871), held that citizens have an individual right to bear arms, unrelated to militia service, and the kinds of weapons protected are those that are part of the ordinary military equipment. “The citizen has, at all times, the right to keep the arms of modern warfare, and to use them in such manner as they may be capable of being used, without annoyance and hurt to others, in order that he may be trained and efficient in their use.”

“This [the right to arms] is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” U.S. v. Cruikshank, 92 U.S. 542 (1875)

“To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege.” Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878)

The Supreme Court noted in Presser v. State of Illinois (1886) that “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”

U.S. v. Miller (1939) A suspected moonshiner’s release by a District judge for non-payment of a NFA transfer tax for a sawed off shotgun was overturned by SCOTUS.  The high court’s stated reason was, “In the absence of any evidence tending to show that possession or use of a … (sawed off shotgun) … 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.”  Because neither defense nor defendant attended the hearing, the only testimony presented was by the prosecution, who lied to the justices and omitted the fact short barreled shotguns were commonly used in trench warfare. The decision was extremely flawed and one-sided as a result.  Even so, the clear implication is that weapons used by the military would be and are protected by the Second Amendment.

“No State shall convert a liberty into a privilege, license it, and charge a fee therefore.” Murdock v. Pennsylvania, 319 US 105 (1943). So per Murdock v. Pennsylvania, no permission, license, fee or tax may lawfully be assessed or required in order to exercise our enumerated rights, such as free speech, religion and bearing arms.  Just as a poll tax is unconstitutional, so, too, are licenses to carry, permits to purchase firearms, FOID cards and “special occupational taxes” to build or own them.  The government is precluded from setting requirements or prerequisites on worship, speech and bearing arms, among other things.  

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

“If the State converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity.” Shuttlesworth v. City of Birmingham, Alabama, 373 U.S. 262 (1969) ALSO… “It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.”

The NFA’s requirement to register and pay a tax on machine guns made after 1986 for the public was ruled unconstitutional by the fifth circuit in 1991. “In sum, since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional.” United States v. Rock Island Armory (1991)

“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” The Supreme Court held firearm ownership to be an individual right, and that guns in common use could not be banned from ownership, nor could carrying of firearms be uniformly denied. Heller at 634-5 (2008)

In McDonald vs City of Chicago (2010), the Court reiterated that “the Second Amendment protects the right to keep and bear arms for the purpose of self-defense”; that “individual self-defense is ‘the central component’ of the Second Amendment right”.  The court also established that the second amendment bound state and local governments as well as the federal government; the right is fully applicable to the states through the due process clause of the fourteenth amendment.

Finally, in Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that its protection is NOT limited to “only those weapons useful in warfare.”

This is PERFECTLY appropriate for all who bow down to an unconstitutional demand that a citizen surrender a firearm, or even pay a retroactively assessed tax for lawfully and previously acquired property:

If ye love wealth (ie: 401k’s, houses, bank accounts, job security) better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen. – Samuel Adams, 1776

Finally, going back two centuries…

“The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.”

The Supreme Court held in Marbury v Madison (1803) that a law repugnant to the Constitution is void. Thus, all of the 23,000+ statutes that infringe on the 2nd amendment by limiting or restricting ownership, possession or carrying of ANY TYPE of bearable arms are null and void. They create no crimes, convey no authority, and impart no duty to comply.