Bucks Writs - Spring 2018 - 15

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Gun Violence in America

Though ratified in 1791, the Second Amendment has had
a very quiet history in the federal courts until relatively
recently. Indeed, the first full analysis of the Second
Amendment by the Supreme Court of the United States did
not occur until 2008.

Sandy Hook. Aurora. Orlando. Las Vegas. Parkland.
Assault weapons. Bump stocks. Background checks.
Waiting periods. Concealed carry. Armed teachers.

One of the earliest SCOTUS cases involving the Second
Amendment was United States v. Miller, 307 U.S. 174
(1939). Jack Miller and Frank Layton were indicted for
feloniously transporting a sawed-off shotgun in interstate
commerce. Miller and Layton demurred alleging,
among other things, that their indictment offended
the Second Amendment. The demurrer failed. SCOTUS
unanimously held that

The conversation about guns and gun violence in America
has reached a fever pitch. Children are marching in the
streets. High school students are confronting politicians.
The National Rifle Association, and its backers, are standing
their ground and pushing back. Legislators on both sides
of the aisle are waiving the Constitution. As we all know,
Americans have certain rights under the Constitution, such
as freedom of speech, freedom of assembly and freedom
from unreasonable searches and seizures. But what right
exactly were the Founders protecting when they drafted
the Second Amendment to the Constitution? The answer is
far from clear.

[i]n 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. Certainly it is not within judicial
notice that this weapon is any part of the ordinary
military equipment or that its use could contribute to the
common defense.

The Second Amendment

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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 Second Amendment is one sentence, sectioned by
three commas, and lacks any incontrovertible legislative
history connected to its drafting that would explain
the Founders' intent. Did the Founders intend that all
Americans should have an individual right to keep and
bear arms, or was that right meant to be for the collective
good, to provide for a well-regulated militia that would
be able, a la the minutemen, to ensure the security of the
free state? No one knows. Great legal minds have studied
the issue at length and in depth and have disagreed,
sometimes vociferously, on the proper interpretation of the
Second Amendment.

Id. at 178.
Some would argue that Miller confirmed the belief that the
right protected by the Second Amendment was a collective
right related to preservation of a well-regulated militia.
Indeed, the Court stated:

ando.
pons.

With obvious purpose to assure the continuation and
render possible the effectiveness of such forces the
declaration and guarantee of the Second Amendment
were made. It must be interpreted and applied with
that end in view.
Id.

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[i]n the absence of any evidence tending
to show that possession... 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.

- United States v. Miller, 307 U.S. 174 (1939)

D.C. v. Heller
Fast forward to 2001. Handgun violence was plaguing our
nation's capital. In an effort to reduce the resulting deaths
and injuries, the District of Columbia passed ordinances
generally prohibiting the possession of handguns. It was a
crime to carry an unregistered firearm, and the registration of
handguns was prohibited. Further, lawfully-owned firearms
had to be kept unloaded or locked when in the home. Dick

15

SPRING 2018



Table of Contents for the Digital Edition of Bucks Writs - Spring 2018

Bucks Writs - Spring 2018 - 1
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https://www.nxtbook.com/hoffmann/BucksWrits/Spring2021
https://www.nxtbook.com/hoffmann/BucksWrits/Fall2020
https://www.nxtbook.com/hoffmann/BucksWrits/Summer2020
https://www.nxtbook.com/hoffmann/BucksWrits/BucksWritsSpring2020
https://www.nxtbook.com/hoffmann/BucksWrits/Winter2020
https://www.nxtbook.com/hoffmann/BucksWrits/Fall2019
https://www.nxtbook.com/hoffmann/BucksWrits/Summer2019
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https://www.nxtbook.com/hoffmann/BucksWrits/Fall2018
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https://www.nxtbook.com/hoffmann/BucksWrits/Winter2018
https://www.nxtbook.com/hoffmann/BucksWrits/Fall2017
https://www.nxtbook.com/hoffmann/BucksWrits/Summer2017
https://www.nxtbook.com/hoffmann/BucksWrits/Spring2017
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