The 2nd Amendment in the Courts
by Steven Krulick
PO Box 467, Ellenville NY 12428
© 2005, 2008, Kryolux Inc
It’s one thing to CLAIM what the 2nd Amendment means based on one’s own personal and unsubstantiated opinions. It’s another to see what the COURTS have actually said about the 2nd Amendment, as the courts, being the judicial branch of government, are charged with INTERPRETING and applying the Constitution to various laws.
In 1915, Maine Supreme Judicial Court Chief Justice Lucilius A. Emery wrote an article in the Harvard Law Review on the Right to Keep and Bear Arms, and argued that "The guaranty does not appear to have been of a common-law right" [and] "I submit that the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."
How this clear and straightforward conclusion has been ignored and turned on its head by today’s "pseudoscholars" and some activist judges staggers the imagination!
The NRA and their flaks like to point to "dozens" of cases that they CLAIM supports their views, but when one looks at the evidence, first, the cases are mostly NOT 2nd Amen cases at all!
They may mention the 2nd Amen in passing, and usually do nothing more then state it as is, without any discussion or interpretation; to suggest from that that a personal right of anyone to own and carry a gun is quite a stretch, and basically involves blatant assertions and begging the question.
Then, they will suggest that the seminal 20th century case, US v. MILLER (1939), either baldly states that the 2nd Amen protects an individual right to own weapons, or is inconclusive. The case was certainly conclusive, and conforms with every other SCotUS case involving 2nd Amen matters. Further, as shown below, nearly EVERY CIRCUIT has affirmed the principles in Miller over and over for more than 60 years!
Indeed, until the 5th Circuit Appellate Emerson case -- which STILL found the law restricting Emerson’s personal ownership of a gun to NOT violate the 2nd Amen, and sent Emerson off to jail -- NOT ONE SINGLE federal case even suggested IN DICTA (which has no bearing on the ruling) that the 2nd Amen protected an individual unrestricted right of any person to own and carry any weapon! Not one subsequent case to Emerson has even referred seriously to Judge Garwood’s lengthy but irrelevant dicta (mostly based on the blatant assertions and manipulated, selective, out-of-context, disingenuous interpretations or misquotes prepared by NRA pseudoscholars and flaks), until Seegars and Parker, and only Parker chose to agree with Garwood’s philosophy, which is now likely to force the Supreme Court to resolve the discrepencies. Stare decisis, however, has upheld the original Miller ruling and principle in EVERY subsequent case but Parker, some of which are cited below.
Supreme Court of the United States (SCotUS):
US v MILLER
307 U.S. 174 (1939)
"In the 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."
After going through a LONG history of the militia, where they described the nature OF the militia: "A body of citizens enrolled for military discipline... acting in concert for the common defense," they pointed out that there was no evidence that Miller’s possession or use of HIS weapon had "some reasonable relationship to the preservation or efficiency of a well regulated militia" and thus had NOTHING to do with the purpose, and thus the guarantee, of the 2nd Amen. Since NO evidence WAS presented (OR COULD BE, as it was obvious that bootlegger desperadoes Miller and Layton were NEVER in the NG and their weapons would NEVER be used for the common defense) that showed Miller’s possession or use of a sawed-off shogun at that time had a reasonable relationship to the preservation or efficiency of a well regulated militia, there was no 2nd Amen protection he could invoke.
They then dispatched the irrelevance of state laws:"Most if not all the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below."
They concluded:"We are unable to accept the conclusion of the court below and the challenged judgement must be reversed."
And since the lower court said the NFA34 violated the 2nd and 10th Amen, to NOT accept that conclusion and REVERSE the judgment means the SCotUS RULED that the NFA34 WAS not in violation of the Const!"The District Court HELD that section eleven of the Act VIOLATED the Second Amendment. It accordingly sustained the demurrer and quashed the indictment... We are unable to accept the CONCLUSION [what they HELD] of the court... and the challenged JUDGMENT must be REVERSED."
The Miller ruling is straightforward: NO weapon has 2nd Amen protection where its possession or use BY ITS OWNER does not have a reasonable relationship to the preservation or efficiency of a well regulated militia. This has been confirmed since 1939 by EVERY Appellate Circuit. It is not enough that any weapon may be shown to have military utility; everything from entrenching tools and wire to nuclear warheads can be shown to have military utility. The touchstone is whether the POSSESSION OR USE by THE OWNER can be shown to have a reasonable relationship to the preservation of the well-regulated militia
Although not the ruling itself, in essence, the Miller court accepted the following argument by the Solicitor General:
Summary of argument"The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress. It cannot be doubted that the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England and of this country. In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law. The ‘arms’ referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to use by criminals are not within the protection of the Amendment. The firearms referred to in the National Firearms Act, i.e., sawed-off shotguns, sawed-off rifles, and machine guns, clearly have no legitimate use in the hands of private individuals, but, on the contrary, frequently constitute the arsenal of the gangster and the desperado. Section 11, upon which the indictment was based, places restrictions upon the transportation in interstate commerce of weapons of this character only, and clearly, therefore, constitutes no infringement of ‘the right of the people to keep and bear arms,’ as that term is used in the Second Amendment."
The SCotUS apparently agreed and reversed the lower court’s conclusion.
LEWIS v. UNITED STATES
445 U.S. 55 (1980)
"Section 1202 (a) (1) clearly meets that test. Congress, as its expressed purpose in enacting Title VII reveals, 18 U.S.C. App. 1201, was concerned that the receipt and possession of a firearm by a felon constitutes a threat, among other things, to the continued and effective operation of the Government of the United States. The legislative history of the gun control laws discloses Congress’ worry about the easy availability of firearms, especially to those persons who pose a threat to community peace.
[ Footnote 8 ] These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to [445 U.S. 55, 66] the preservation or efficiency of a well regulated militia’)"
Two 19th century SCotUS cases, PRESSER v. ILLINOIS, 116 U.S. 252 and US v. CRUIKSHANK, 92 U.S. 542, basically said one can’t form private armies, and that the 2nd Amen doesn’t apply to the states, but only against the fed govt infringing on the states’ right to maintain their militias:
"We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear 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. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the ‘powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,’ ‘not surrendered or restrained’ by the constitution of the United States.’ Presser v. Illinois, 116 U.S. 252"
Circuit Courts (US Court of Appeals, US Appellate Court):
UNITED STATES v. WARIN
No. 75-1734. United States Court of Appeals, Sixth Circuit.
Decided Feb. 4, 1976.
Since 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...
It would unduly extend this opinion to attempt to deal with every argument made by defendant and amicus curiae, Second Amendment Foundation, all of which are based on the erroneous supposition that the Second Amendment is concerned with the RIGHTS of individuals rather than THOSE OF THE STATES or that defendant’s automatic membership in the "sedentary militia" of Ohio brings him within the reach of its guarantees.
Warin argues that the necessary implication of the quoted language is that a member of the "sedentary militia" may possess any weapon having military capability and that application of 26 U.S.C. § 5861(d) to such a person violates the Second Amendment. We disagree. In Miller the Supreme Court did not reach the question of the extent to which a (p.106)weapon which is "part of the ordinary military equipment" or whose "use could contribute to the common defense" may be regulated. In holding that the absence of evidence placing the weapon involved in the charges against Miller in one of these categories precluded the trial court from quashing the indictment on Second Amendment grounds, the Court did not hold the converse -- that the Second Amendment is an absolute prohibition against all regulation of the manufacture, transfer and possession of any instrument capable of being used in military action.
The fact that the defendant Warin, 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. By statute the State of Ohio exempts "members of... the organized militia of this or any other state,..." (emphasis added) from the provision, "No person shall knowingly acquire, have, carry, or use any dangerous ordnance." Ohio Revised Code § 2923.17. "Dangerous ordnance" is defined to include any automatic firearm. O.R.C. § 2923.11.
There is no such exemption for members of the "sedentary militia." Furthermore, there is absolutely no evidence that a submachine gun in the hands of an individual "sedentary militia" member would have any, much less a "reasonable relationship to the preservation or efficiency of a well regulated militia."
Miller, supra, 307 U.S. at 178, 59 S.Ct. at 818. Thus we conclude that the defendant has no private right to keep and bear arms under the Second Amendment which would (p.107)bar his prosecution and conviction for violating 26 U.S.C. § 5861(d).
UNITED STATES v. TOT
No. 7961. Circuit Court of Appeals, Third Circuit.
Decided Oct. 28, 1942.
It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this 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.
Weapon bearing was never treated as anything like an absolute right by the common law. It was regulated by statute as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since. The decisions under the State Constitutions show the upholding of regulations prohibiting the carrying of concealed weapons, prohibiting persons from going armed in certain public places and other restrictions, in the nature of police regulations, but which do not go so far as substantially to interfere with the public interest protected by the constitutional mandates. The Federal statute here involved is one of that general type. One could hardly argue seriously that a limitation upon the privilege of possessing weapons was unconstitutional when applied to a mental patient of the maniac type. The same would be true if the possessor were a child of immature years. 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.
HICKMAN v. BLOCK
No. 94-55836. United States Court of Appeals, Ninth Circuit.
Decided April 5, 1996.
We follow our sister circuits in 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.
Consulting the text and history of the amendment, the Court 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.
Because the Second Amendment guarantees the RIGHT OF THE STATES to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.
The Court’s understanding follows a plain reading of the Amendment’s text. The Amendment’s second clause declares that the goal is to preserve the security of "a free state;" its first clause establishes the premise that a "well-regulated militia" is necessary to this end. Thus it is only in furtherance of state security that "the right of the people to keep and bear arms" is finally proclaimed.
LOVE v. PEPERSACK
No. 94-1582. United States Court of Appeals, Fourth Circuit.
Decided Feb. 3, 1995.
Citing law review articles, Love argues that she has an individual federal constitutional right to "keep and bear" a handgun, and Maryland may not infringe upon this right. She is wrong on both counts. The Second Amendment does not apply to the states. Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.
Ed. 615 (1886); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (p.124) (1876). Moreover, even as against federal regulation, the amendment does not confer an absolute individual right to bear any type of firearm. In 1939, the Supreme Court held that the federal statute prohibiting possession of a sawed-off shotgun was constitutional, because the defendant had not shown that his possession of such a gun bore a "reasonable relationship to the preservation or efficiency of a well regulated militia." United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939). Since then, the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right.
This court’s precedent is United States v. Johnson, 497 F.2d 548 (4th Cir. 1974). In Johnson, the defendant challenged the constitutionality of the federal statute prohibiting possession of firearms by convicted felons. We were not impressed (id. at 550):
Johnson’s argument that [18 U.S.C. section 922(g)] is an unconstitutional violation of his Second Amendment right to keep and bear arms is not new. See, e.g., United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). 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." 307 U.S. at 178, 59 S.Ct. at 818. Johnson presents no evidence that section 922(g) in any way affects the maintenance of a well regulated militia.
Love has likewise not identified how her possession of a handgun will preserve or insure the effectiveness of the militia.
CASES v. UNITED STATES
No. 3756. United States Court of Appeals, First Circuit.
Nov. 27, 1942.
... on or about August 27, 1941, the appellant received into his possession and carried away ten rounds of ammunition, and that on the evening of August 30 of the same year he went to Annadale’s Beach Club on Isla Verde in the municipality of Carolina, Puerto Rico, equipped with a .38 caliber Colt type revolver of Spanish make which, when some one turned out the lights, he used, apparently not wholly without effect, upon another patron of the place who in some way seems to have incurred his displeasure.
While the weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career. In fact, the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting, and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second Amendment was designed to foster as necessary to the security of a free state.
We are of the view that, as applied to the appellant, the Federal Firearms Act does not conflict with the Second Amendment to the Constitution of the United States.
The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The right to keep and bear arms is not a right conferred upon the people by the federal constitution.
Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right... the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.
QUILICI v. VILLAGE OF MORTON GROVE
Nos. 82-1045, 82-1076 and 82-1132.
United States Court of Appeals, Seventh Circuit.
Decided Dec. 6, 1982. As Amended Dec. 10, 1982.
Since we hold that the second amendment does not apply to the states, we need not consider the scope of its guarantee of the right to bear arms. For the sake of completeness, however, and because appellants devote a large portion of their briefs to this issue, we briefly comment on what we believe to be the scope of the second amendment.
The second amendment provides that "A regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Construing this language according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia. This is precisely the manner in which the Supreme Court interpreted the second amendment in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), the only Supreme Court case specifically addressing that amendment’s scope. There the Court held that the right to keep and bear arms extends only to those arms which are necessary to maintain a well regulated militia.
In an attempt to avoid the Miller holding that the right to keep and bear arms exists only as it relates to protecting the public security, appellants argue that "[t]he fact that the right to keep and bear arms is joined with language expressing one of its purposes in no way permits a construction which limits or confines the exercise of that right." Reichert br. at 35. They offer no explanation for how they have arrived at this conclusion. Alternatively, they argue that handguns are military weapons. Stengl’s br. at 11-13. Our reading of Miller convinces us that it does not support either of these theories. As the Village correctly notes, appellants are essentially arguing that Miller was wrongly decided and should be overruled. Such arguments have no place before this court. Under the controlling authority of Miller we conclude that the right to keep and bear handguns is not guaranteed by the second amendment.
Because the second amendment is not applicable to Morton Grove and possession of handguns by individuals is not part of the right to keep and bear arms, Ordinance No. 81-11 does not violate the second amendment.
Finally, we consider whether Ordinance No. 81-11 violates the ninth amendment. Appellants argue that, although the right to use commonly-owned arms for self-defense is not explicitly listed in the Bill of Rights, it is a fundamental right protected by the ninth amendment. Citing no authority which directly supports their contention, they rely on the debates in the First Congress and the writings of legal philosophers to establish that the right of an individual to own and possess firearms for self-defense is an absolute and inalienable right which cannot be impinged.
Since appellants do not cite, and our research has not revealed, any Supreme Court case holding that any specific right is protected by the ninth amendment, appellants’ argument has no legal significance. Appellants may believe the ninth amendment should be read to recognize an unwritten, fundamental, individual right to own or possess firearms; the fact remains that the Supreme Court has never embraced this theory.
UNITED STATES v. BAER
235 F.3d 561, 564, United States Court of Appeals, Tenth Circuit.
Dec. 10, 2000.
Mr. Baer contends that sections 922(g)(1) and 922(k) are unconstitutional as violative of the Ninth Amendment, which provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. amend. IX. The circuits have uniformly rejected the argument that the Ninth Amendment encompasses "an unenumerated, fundamental, individual right to bear firearms." San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996); see also United States v. Wright, 117 F.3d 1265, 1275 (11th Cir. 1997), vacated in part on other grounds 133 F.3d 1412 (11th Cir. 1998); United States v. Broussard, 80 F.3d 1025, 1041 (5th Cir. 1996). We agree and reject Mr. Baer’s contention that the federal firearms statutes violate the Ninth Amendment.
Mr. Baer also makes the time-worn argument that his conviction violates the Second Amendment. The Supreme Court has long held that "the Second 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.’" Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (quoting United States v. Miller, 307 U.S. 174, 178 (1939)). The Court in Lewis concluded that federal legislation regulating the receipt and possession of firearms by felons "do[es] not trench upon any constitutionally protected liberties," including those guaranteed by the Second Amendment. Id. In light of this authority, the 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. See, e.g., Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995); see also Wright, 117 F.3d at 1271-74 (upholding 18 U.S.C. § 922(o), which bars possession of machine gun, against Second Amendment challenge); United States v. Hale, 978 F.2d 1016, 1018-1020 (same); United States v. Nelson, 859 F.2d 1318, 1320 (8th Cir. 1988) (upholding Switchblade Knife Act, 15 U.S.C. § 1242, against Second Amendment challenge); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977) (upholding 26 U.S.C. § 5861(d), which bars possession of unregistered machine gun, against Second Amendment challenge). Mr. Baer’s prosecution did not violate the Second Amendment.
UNITED STATES v. HANEY
No.: 00-6129 264 F.3d 1161 United States Court of Appeals, Tenth Circuit.
The Second Amendment reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Haney argues that by banning possession of machineguns, § 922(o) infringes his right to keep and bear arms and hence violates the Second Amendment. We reject this contention as inconsistent with governing case law.
Our published Tenth Circuit opinions treat the Second Amendment similarly. In United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), we rejected a Second Amendment challenge to the federal law criminalizing possession of an unregistered machinegun, 26 U.S.C. § 5861(d). We found no evidence that the firearm in question was connected with a militia, even though the defendant was nominally a member of the Kansas militia and the "Posse Comitatus," a militia-type organization registered with the state:
The purpose of the second amendment as stated by the Supreme Court in United States v. Miller was to preserve the effectiveness and assure the continuation of the state militia. The Court stated that the amendment must be interpreted and applied with that purpose in view. To apply the amendment so as to guarantee appellant’s right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. This lack of justification is even more apparent when applied to appellant’s membership in "Posse Comitatus," an apparently nongovernmental organization. We conclude, therefore, that this prosecution did not violate the second amendment.
Our most recent pronouncement on the Second Amendment is United States v. Baer, 235 F.3d 561 (10th Cir. 2000). In Baer, we rejected a "time-worn" Second Amendment challenge to the federal felon-in-possession law, noting that "the circuits have consistently upheld the constitutionality of federal weapons regulations like [this one] absent evidence that they in any way affect the maintenance of a well regulated militia." Id. at 564.
Consistent with these cases, we hold that a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state’s ability to maintain a well-regulated militia. This is simply a straightforward reading of the text of the Second Amendment. This reading is also consistent with the overwhelming weight of authority from the other circuits. See, e.g., United States v. Napier, 233 F.3d 394, 402 (6th Cir. 2000) (holding that the Second Amendment right "is limited to keeping and bearing arms that have some reasonable relationship to the preservation or efficiency of a well regulated militia" (quotation marks omitted)); Gillespie v. City of Indianapolis, 185 F.3d 693, 711 (7th Cir. 1999) (rejecting a Second Amendment challenge to 18 U.S.C. § 922(g)(9) because the plaintiff "does not argue (and we do not believe under any plausible set of facts that he could) that the viability and efficacy of state militias will be undermined by prohibiting those convicted of perpetrating domestic violence from possessing weapons in or affecting interstate commerce"), cert. denied, 528 U.S. 1116 (2000); United States v. Wright, 117 F.3d 1265, 1272-74 (11th Cir. 1997) (holding that a criminal defendant must demonstrate a reasonable relationship between possession of a machinegun and the preservation or efficiency of a militia actively trained and maintained by the state), amended on other grounds by 133 F.3d 1412 (11th Cir. 1998); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996) (same); United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992) (same).
Nor has Haney proven several facts logically necessary to establish a Second Amendment violation. As a threshold matter, he must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is "well regulated" by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service. None of these are established.
The militia of the Second Amendment is a governmental organization: The Constitution elsewhere refers to "the Militia of the several States," Art. II, § 2, and divides regulatory authority over the militia between the federal and state governments, Art. I, § 8. See also Perpich v. Dep’t of Defense, 496 U.S. 334, 345-46 (1990) (describing the "dual enlistment" provisions of the militia statutes). Thus, the militia does not include the private anti-government groups that sometimes refer to themselves as "militias." Haney is not part of the "well regulated" militia, that is, a "militia actively maintained and trained by the states," Wright, 117 F.3d at 1272. At best, Haney claims to be a member of the "unorganized" (and therefore not a "well regulated" state) militia. See Okla. Stat. Ann. Tit. 44, § 41 (dividing the population of able-bodied persons between the ages of seventeen and seventy into the National Guard, the Oklahoma State Guard, and the "Unorganized Militia"). Haney does not claim to be a member of the National Guard or the Oklahoma State Guard, and he has submitted no evidence that the Oklahoma unorganized militia and his participation therein are well-regulated by the State of Oklahoma. Accord Wright, 117 F.3d at 1274 ("[T]he substantial segment of the population comprising the unorganized militia is not well regulated as that term was intended by the drafters of the Second Amendment."); see also Oakes, 564 F.2d at 387 (noting that technical membership in the state militia is insufficient to show a Second Amendment violation); Hale, 978 F.2d at 1020 (same). Nor has Haney submitted any evidence that machineguns of the sort he possessed are used by the militia, or that his possession was connected to any sort of militia service.
In sum, § 992(o) does not impair the state’s ability to maintain a well-regulated militia and therefore does not violate the Second Amendment.
UNITED STATES v. WRIGHT
No. 95-8397. 117 F.3d 1265 United States Court of Appeals, Eleventh Circuit.
July 24, 1997.
... only militias actively maintained and trained by the states can satisfy the "well regulated militia" requirement of the Second Amendment.
At the time of ratification, and as remains the case today, the militia was defined broadly and was understood to include "all males physically capable of acting in concert for the common defense." Miller, 307 U.S. at 177 , 59 S.Ct. at 818. But because the Constitution protects only the possession or use of guns reasonably related to a "well regulated militia," membership in this broad segment of the population is constitutionally insignificant.
... the Miller Court understood the Second Amendment to protect only the possession or use of weapons that is reasonably related to a militia actively maintained and trained by the states. Moreover, after examining the text and history of the Second Amendment, we conclude that this reading of Miller is consistent with the motivating purposes of the drafters of the Second Amendment. The amendment describes a "well regulated militia" as "being necessary to the security of a free State." The fact that the drafters qualified "well regulated militia" by reference to state security suggests to us that they intended this term to refer only to governmental militias that are actively maintained and used for the common defense.
The Second Amendment was inserted into the Bill of Rights to protect the role of the states in maintaining and arming the militia. It was designed to protect the state militias from federal legislation enacted to undermine the role of state militias.
The concerns motivating the creation of the Second Amendment convince us that the amendment was intended to protect only the use or possession of weapons that is reasonably related to a militia actively maintained and trained by the states. With this conclusion, we join every other federal court that has been called on to consider the "well regulated militia" requirement of the Second Amendment,  several of which have considered and rejected the claim made by Wright in this case that membership in a state’s unorganized militia is sufficient to bring gun possession within the protection of the Second Amendment.
Faced with this overwhelming body of contrary authority, Wright nevertheless maintains that Georgia’s unorganized militia is sufficiently well regulated to trigger constitutional protection.
In our view, these statutes fall far short of rendering the Georgia unorganized militia "well regulated" for the purposes of the Second Amendment. The possibility that in responding to a future crisis state authorities might seek the aid of members of the unorganized militia does not speak to the militia’s current state of regulation. Wright has not directed us to any Georgia statutes governing the actual, as opposed to potential, organization, training, and equipping of the members of the unorganized militia.
We therefore do not hesitate to conclude that the substantial segment of the population comprising the unorganized militia is not well regulated as that term was intended by the drafters of the Second Amendment.
Likewise, because Wright has failed to demonstrate any connection to a well regulated militia, we need not consider what showing is required to establish a reasonable relationship between the possession or use of weapons and the preservation or efficiency of such a militia. Finally, we express no opinion as to what governmental interests would be sufficient to justify an infringement on Second Amendment rights in the event such a reasonable relationship is established. See Warin, 530 F.2d at 107 ("Even where the Second Amendment is applicable, it does not constitute an absolute barrier to the congressional regulation of firearms."). Therefore, we conclude in this case that neither § 922( o )’s blanket ban of machinegun possession nor the registration requirements of § 5861(d) infringe on any constitutionally protected liberties. 
UNITED STATES v. HALE
No. 91-3830. United States Court of Appeals, Eighth Circuit.
Decided Oct. 20, 1992.
Since the Miller decision, no federal court has found any individual’s possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103.
Applying these principles to the present case, we conclude that Hale’s possession of the weapons in question was not reasonably related to the preservation of a well regulated militia. The allegation by Hale that these weapons are susceptible to military use is insufficient to establish such a relationship.
Hale introduced no evidence and made no claim of even the most tenuous relationship between his possession of the weapons and the preservation of a well regulated militia. Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 1060, 108 L.Ed.2d 222 (1990), Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias.
This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia. See Miller, 307 U.S. at 178, 59 S.Ct. at 818; United States v. Oakes, 564 F.2d 384 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521(1978); Cody, 460 F.2d 34. Whether the "right to bear arms" for militia purposes is "individual" or "collective" in nature is irrelevant where, as here, the individual’s possession of arms is not related to the preservation or efficiency of a militia.
UNITED STATES v. RYBAR
No. 95-3185. United States Court of Appeals, Third Circuit.
Decided Dec. 30, 1996.
However clear the [Miller] Court’s suggestion that the firearm before it lacked the necessary military character, it did not state that such character alone would be sufficient to secure Second Amendment protection. In fact, the Miller Court 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.; see Cases v. United States, 131 F.2d 916, 922 (1st Cir.1942) (susceptibility of firearm to military application not determinative), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943). Rybar has not demonstrated that his possession of the machine guns had any connection with militia-related activity. Indeed, as noted above, Rybar was a firearms dealer and the transactions in question appear to have been consistent with that business activity.
Nonetheless, Rybar attempts to place himself within the penumbra of membership in the "militia" specified by the Second Amendment by quoting from 10 U.S.C. section 311(a): The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are... citizens of the United States...
Rybar’s invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to "the preservation or efficiency of a well regulated militia," as required in Miller, 307 U.S. at 178, 59 S.Ct. at 818. Nor can claimed membership in a hypothetical or "sedentary" militia suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976).
Rybar boldly asserts that "the Miller Court was quite simply wrong in its superficial (and one-sided) analysis of the Second Amendment." Brief of Appellant at 27. As one of the inferior federal courts subject to the Supreme Court’s precedents, we have neither the license nor the inclination to engage in such freewheeling presumptuousness. In any event, this court has on several occasions emphasized that the Second Amendment furnishes no absolute right to firearms. See United States v. Graves, 554 F.2d 65, 66 n. 2 (3d Cir.1977); Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839, 843, 94 S.Ct. 89, 104, 38 L.Ed.2d 74, 81 (1973). Federal attempts at firearms regulation have also consistently withstood challenge under the Second Amendment. See, e.g., Hale, 978 F.2d at 1020; Warin, 530 F.2d at 108; United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290 n. 5 (7th Cir.1974); United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974); Cases, 131 F.2d at 923. We see no reason why section 922(o) should be an exception.
SILVEIRA V. LOCKYER
No. 01-15098 United States Court of Appeals, Ninth Circuit.
Filed Dec. 5, 2002.
After examining each of the significant words or phrases in the Second Amendment’s first clause, we conclude that the clause declares the importance of state militias to the security of the various free states within the confines of their newly structured constitutional relationship. With that understanding, the reason for and purpose of the Second Amendment becomes clearer.
b. The Meaning of the Amendment’s Second Clause: "The Right of the People to Keep and Bear Arms, Shall Not Be Infringed."
Having determined that the first clause of the Second Amendment declares the importance of state militias to the proper functioning of the new constitutional system, we now turn to the meaning of the second clause, the effect the first clause has on the second, and the meaning of the amendment as a whole. The second clause- "the right of the people to keep and bear Arms, shall not be infringed"- is not free from ambiguity. We consider it highly significant, however, that the second clause does not purport to protect the right to "possess" or "own" arms, but rather to "keep and bear" arms. This choice of words is important because the phrase "bear arms" is a phrase that customarily relates to a military function. Historical research shows that the use of the term "bear arms" generally referred to the carrying of arms in military service- not the private use of arms for personal purposes. n28 For instance, Professor Dorf, after canvassing documents from the founding era, concluded that "overwhelmingly, the term had a military connotation." Dorf, supra, at 314.
Our own review of historical documents confirms the professor’s report. n29 The Tennessee Supreme Court, in the most significant judicial decision to construe the term "bear arms," concluded that it referred to the performance of a military function: "A man in pursuit of deer, elk and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms." Aymette v. State, 21 Tenn. (2 Humph.) 154 (1840). n30 Other nineteenth-century judicial opinions evince that same understanding of the term, as it appears in the Constitution...
The debates of the First Congress regarding Madison’s proposed Second Amendment, like the debates at the Constitution’s ratifying conventions, support the view that the amendment was designed to ensure that the people retained the right to maintain effective state militias, the members of which could be armed by the states as well as by the federal government.
Otherwise, the anti-Federalists feared, the federal government could, by inaction, disarm the state militias (and thus deprive the people of the right to bear arms)... [n]o one in the First Congress was concerned, however, that federal marshals might go house-to-house taking away muskets and swords from the man on the street or on the farm. Notably, there is not a single statement in the congressional debate about the proposed amendment that indicates that any congressman contemplated that it would establish an individual right to possess a weapon.
The fact that the overwhelming majority of the debate regarding the proposed Second Amendment related to the conscientious objector provision demonstrates that the congressmen who adopted the amendment understood that it was concerned with the subject of state militias. A right not to bear arms due to conscientious objection can only mean a right not to be compelled to carry arms that the government seeks to make one bear -- to perform military service that one is unwilling to perform. There is no possible relevance of the term ‘conscientious objection’ to a constitutional amendment guaranteeing a private right to possess firearms. Thus, if the Second Amendment was in fact designed to establish an individual right, the debate over the conscientious objector provision would have been entirely purposeless.
After conducting our analysis of the meaning of the words employed in the amendment’s two clauses, and the effect of their relationship to each other, we concluded that the language and structure of the amendment strongly support the collective rights view.
The preamble establishes that the amendment’s purpose was to ensure the maintenance of effective state militias, and the amendment’s operative clause establishes that this objective was to be attained by preserving the right of the people to "bear arms" -- to carry weapons in conjunction with their service in the militia. To resolve any remaining uncertainty, we carefully examined the historical circumstances surrounding the adoption of the amendment. Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias. The proponents of the Second Amendment believed that only if the states retained that power could the existence of effective state militias -- in which the people could exercise their right to "bear arms" -- be ensured.
The historical record makes it equally plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession. Accordingly, we are persuaded that we were correct in Hickman that the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment.
UNITED STATES OF AMERICA v. KENNETH JAMES PRICE
No. 02-2569. United States Court of Appeals, Seventh Circuit.
Decided May 16, 2003
But, Price argues, a recent decision of the Court of Appeals for the Fifth Circuit-United States v. Emerson, 270 F.3d 203 (2001)-and a recent letter written by Attorney General John Ashcroft to the National Rifle Association provide us with reason to reexamine our position. We don’t think so.
We, of course, would not be obliged to follow Emerson, even were it to lead to the conclusion Price urges. It is true that Emerson rejects what are known as the "collective rights" and "sophisticated collective rights" models for interpreting the Second Amendment. In short, it adopts the individual rights model, which says that the amendment protects "individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here . . . ." At 260. In contrast, in our decision in Gillespie, we said that the rights under the Second Amendment inure "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." 185 at 710. But even were we inclined to, there is no need for us to wade into that Second Amendment quagmire because, although it espouses an individual rights approach to the Second Amendment, the Emerson court agrees with our conclusion that rights under the amendment can be restricted. Specifically, the court found that 18 U.S.C. §922(g)(8) did not infringe Emerson’s rights: "[I]t is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms." At 261. Like the Court of Appeals for the Fifth Circuit, the Attorney General subscribes to an individual rights interpretation of the Second Amendment. In his letter to the executive director of the NRA, he says "[L]et me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms." He says "clearly," though his view, as the need for such a lengthy discussion in Emerson reveals, is also pretty clearly not selfevident. But even given his interpretation, Mr. Ashcroft also acknowledges in a footnote, as it would be hard responsibly to deny, that "[o]f course, the individual rights view of the Second Amendment dos [sic] not prohibit Congress from enacting laws restricting firearms ownership for compelling state interests, such as prohibiting firearms ownership by convicted felons..." At least for the moment, § 922(g) is safe with us and, in fact, is safe with the Attorney General and the Court of Appeals for the Fifth Circuit.
Federal Appellate Court Decisions Rejecting Individual Rights Interpretation of the Second Amendment:
U.S. v. Parker, 362 F.3d 1279 (10th Cir. 2004)
U.S. v. Lippman, 369 F.3d 1039 (8th Cir. 2004)
U.S. v. Price, 328 F.3d 958 (7th Cir. 2003)
U.S. v. Graham, 305 F.3d 1094 (10th Cir. 2002)
U.S. v. Lucero, 43 Fed.Appx. 299 (10th Cir. 2002)
U.S. v. Bayles, 310 F.3d 1302 (10th Cir. 2002)
Silveira v. Lockyer, 312 F.3d 1052, rehearing en banc denied, 328 F.3d 567 (9th Cir. 2003)
Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2002)
U.S. v. Twenty-Two Various Firearms, 38 Fed.Appx. 229 (6th Cir. 2002)
U.S. v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert. denied, 121 S. Ct. 1641 (2001)
U.S. v. Finitz, 234 F.3d 1278 (9th Cir. 2000), cert. denied, 121 S. Ct. 833 (2001)
U.S. v. Lewis, 236 F.3d 948 (8th Cir. 2001)
U.S. v. Hemmings, 258 F. 3d 587 (7th Cir. 2001)
U.S. v. Hager, 22 Fed.Appx. 130 (4th Cir. 2001)
Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000)
U.S. v. Napier, 233 F.3d 394 (6th Cir. 2000)
U.S. v. Baer, 235 F.3d 561 (10th Cir. 2000)
U.S. v. Wright, 117 F.3d 1265 (11th Cir.), cert. denied, 522 U.S. 1007 (1997)
U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996), cert. denied, 522 U.S. 807 (1997)
Hickman v. Block, 81 F.3d 98 (9th Cir.), cert. denied, 519 U.S. 912 (1996)
U.S v. Farrell, 69 F.3d 891 (8th Cir. 1995)
Love v. Pepersack, 47 F.3d 120 (4th Cir.), cert. denied, 516 U.S. 813 (1995)
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993)
U.S. v. Friel, 1 F.3d 1231 (1st Cir. 1993)
U.S. v. Nelsen, 859 F.2d 1318 (8th Cir. 1988)
U.S. v. Toner, 728 F.2d 115 (2d Cir. 1984)
Thomas v. City Council of Portland, 730 F.2d 41 (1st Cir. 1984)
Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983)
U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978)
U.S. v. Graves, 554 F.2d 65 (3rd Cir. 1977)
U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975), cert. denied, 424 U.S. 918 (1976)
U.S. v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976)
U.S. v. Johnson, 497 F.2d 548 (4th Cir. 1974)
Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir.), cert. denied, 414 U.S. 839 (1973)
U.S. v. Day, 476 F.2d 562 (6th Cir. 1973)
Cody v. U.S., 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010 (1972)
U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971)
U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972)
U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971)
Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971)
U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943)
U.S. v. Cases, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom.,
Velazquez v. U.S., 319 U.S. 770 (1943)
Cockrum v. State, 24 Texas 394 (1859):
The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." O. & W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. & W. Dig. 14.
The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government.
***The clause cited in our [Texas state] bill of rights, has the same broad object in relation to the government, and in ADDITION thereto, secures a personal right to the citizen.***[IF the 2nd Amen secured a personal right, how could he have made this statement? If the Texas state constitution didn’t recognize a PERSONAL right to keep and bear arms, how could he have said it does? Further, look at the distinctions made in the cases presented in the govt’s argument in Miller (39):]
In Salina v. Blaksley, 72 Kan. 230, the court, in reference to the provision of the State Constitution declaring that the people had the right to bear arms for their defense and security, said (pp. 232-233): That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal constitution, which says: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Here also the right of the people to keep and bear arms for their security is preserved, and the manner of bearing them for such purpose is clearly indicated to be as a member of a well-regulated militia, or some other military organization provided for by law....
And in State v. Buzzard, 4 Ark. 18, the court, in referring to the Second Amendment, said (pp. 24-25): If these general powers of the government are restricted in regard to the right to keep and bear arms, the limitation, to whatever extent it may exist, will be better understood, and more clearly seen, when the object for which right is supposed to have been retained, is stated. That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown; consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the State, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide. But it was also well understood , that the militia, without arms, however well disposed, might be unable to resist, successfully, the efforts of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties; and therefore, to guard most effectually against such consequences, and enable the militia to discharge this most important trust, so reposed in them, and for this purpose only, it is conceived the right to keep and bear arms was retained, and the power which, without such reservation, would have been vested in the government, to prohibit, by law, their keeping and bearing arms for any purpose whatever, was so far limited or withdrawn: which conclusion derives additional support from the well known fact, that the practice of maintaining a large standing army in times of peace, had been denounced and repudiated by the people of the United States, as an institution dangerous to civil liberty and a free State, which produced, at once, the necessity of providing some adequate means for the security and defence of the State, more congenial to civil liberty and republican government. And it is confidently believed that the people designed and expected to accomplish this object, by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose; but it surely was not to designed to operate as an immunity to those, who should so keep and bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society...
In recognition of this principle, this Court, in Robertson v. Baldwin, 165 U.S. 275, 281-282, stated that the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons...
In the only other case in which the provisions of the National Firearm Act have been assailed as being in violation of the Second Amendment (United States v. Adams, 11 F. Supp. 216 (S.D. Fla.)), the contention was summarily rejected as follows (pp. 218-219): The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights.