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[Copyright © 1996 Cumberland Law Review. Originally published as 26 Cumb. L. Rev. 961-1004 (1996). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT
INTERPRETATIONS OF UNITED STATES V. MILLER AND
THE SECOND AMENDMENT

Brannon P. Denning[*]

When courts fail to engage in oversight or even distort the Constitution to rationalize the ultra vires actions of government, and when academics and political activists aid and abet them in this activity by devising ingenious rationalizations for ignoring the Constitution's words, they are playing a most dangerous game. For they are putting at risk the legitimacy of the lawmaking process and risking the permanent disaffection of significant segments of the people.

Randy Barnett[**]

Introduction

A. Second Amendment Scholarship and the Elite Bar

In his recent Boston University Law Review article entitled Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility,[1] Andrew Herz blasts recent Second Amendment[2] scholarship[3] for promoting a "constitutional (p.962)fish story told by the gun lobby, swallowed by the public, and rarely challenged by politicians, the media, or legal scholars."[4] In particular, he accuses legal scholars who have written on the Second Amendment of failing "to discuss a central aspect of the legal 'truth' about the Second Amendment--that the courts constantly reject the gun lobby's broad-individual-right position."[5]

Herz is at least partially correct--most of the recent scholarship on the Second Amendment has focused on the origins of the right and how that right was understood by the Framers.[6] Such historical research is necessary, for judges as well as scholars, to aid in the interpretation of any amendment to, or provision of, the Constitution. This new research, for example, demonstrates the error of many of the assumptions about the nature of militias and private citizens' roles in them.[7] Though extremely interesting, such issues are outside the scope of this article.[8]

My purpose in writing this article is to fill a void in the Second Amendment scholarship. Picking up Professor Herz's gauntlet, I propose to take on Second Amendment critics where they feel unassailable: the case law.[9] In particular, I will focus on United States v. Miller,[10] the only Supreme Court decision directly interpreting the Second Amendment in this century; and, to avoid Herz's charges of a "Supreme Court-only tunnel vision,"[11] I will also examine the subsequent (p.963)lower federal court interpretations and applications of Miller. I will argue that the lower courts have strayed so far from the Court's original holding to the point of being intellectually dishonest. In illustrating both the depth and breadth of the lower courts' dishonesty, I will draw upon Karl Llewellyn's studies of appellate court decisionmaking.[12]

Certainly, the elite bar has lined up behind Professor Herz and seems to be in favor of "[l]etting settled law lie."[13] The public statements of the American Bar Association provide concrete examples of how lower courts' erroneous interpretations of the Miller decision have effected the constitutional debate surrounding the meaning of the Second Amendment.[14] In August, 1994, the American Bar Association's Task Force on Gun Violence issued a series of recommendations to the ABA's House of Delegates.[15] One recommendation called upon "leaders of the legal profession" to "[e]ducate the public and lawmakers regarding the meaning of the Second Amendment to the United States Constitution."[16] The purpose:

to make widely known the fact that the United States Supreme Court and lower federal courts have consistently, uniformly held that the Second Amendment to the United States Constitution right to bear arms is related to "a well regulated militia" and that there are no federal constitutional decisions which preclude regulation of firearms in private hands ....[17]

Edward E. Kallgren, the Chairman of the ABA's Coordinating Committee on Gun Violence, further fleshed out the ABA's position on the Second Amendment in a 1993 statement given to the House Subcommittee on Crime.[18] In his (p.964)statement, Mr. Kallgren outlined the position of the ABA regarding the "considerable confusion and misunderstanding about the meaning of the Second Amendment and ... the power of the federal government to enact laws regulating firearms in private hands."[19] Mr. Kallgren assured the House subcommittee there was "no confusion in the law itself" because "[f]ederal and state court decisions in this century have been uniform in the view that the Second Amendment permits the exercise of broad power to limit private access to firearms by all levels of government."[20]

According to Mr. Kallgren, Miller held that "the scope of the people's right to bear arms is qualified by the introductory phrase of the Second Amendment regarding the necessity of a 'well regulated militia' for the 'security of a free State.'"[21] Mr. Kallgren also argued that Miller "held that the 'obvious purpose' of the Amendment was 'to assure the continuation and ... effectiveness of' the state militias" and cautioned that the Amendment "'must be interpreted and applied with that end in view.'"[22] "The absolutist view of the Second Amendment," a view Mr. Kallgren obviously does not share, "argued by some opponents of regulation of firearms has not been sustained by a single U.S. Supreme Court or lower court decision in our nation's history."[23] The real question for Congress, said Mr. Kallgren (and presumably the American Bar Association), is "where to draw the line to balance interests of gun owners and manufacturers with public safety and public order."[24]

Mr. Kallgren concluded his testimony by citing statistics illustrating that "[g]un violence in the United States is a grave national problem."[25] To eliminate it, Mr. Kallgren and the (p.965)ABA recommended Congress take appropriate regulatory steps "to reduce the tragic carnage of gun-related deaths and injuries plaguing this country."[26] Kallgren assured the subcommittee that because the "Constitution clearly permits such regulation, ... the Second Amendment cannot be used as a reason for not adopting [such legislation]."[27] Thus, rather than balancing interests, the ABA merely read the Second Amendment to contain not even token constraints on the power of Congress to regulate, or even prohibit, gun ownership.

Professor Herz's and the ABA's conclusion that the Second Amendment provides no constitutional impediment to the regulation of privately-held arms proceeds from two premises: first, that the Supreme Court in Miller held that the Second Amendment guaranteed no individual right to keep and bear firearms; second, that lower courts have honestly, consistently, and uniformly applied the holding in Miller and have all arrived at the same conclusion. Imbedded within this argument, however, are two very important implied premises: first, that the Supreme Court's Miller decision actually held what Herz and Kallgren say it held; and second, that subsequent lower court decisions have honestly interpreted and consistently applied Miller when deciding Second Amendment cases.

This article challenges the conclusions regarding Miller and the Second Amendment shared not only by the ABA, but also by most lower federal court opinions that purport to apply Miller and to interpret the Second Amendment. First, I intend to make clear that Miller, perhaps more than the Second Amendment, is the subject of "considerable confusion and misunderstanding." To paraphrase Mr. Kallgren, there is perhaps no other Supreme Court decision in our nation's history that has been "more distorted and cluttered by misinformation than this one." Second, I intend to show that the lower federal courts have consistently misinterpreted the Court's holding in Miller. I will also speculate upon the causes and political consequences of such casual judicial attitudes toward the Second Amendment.(p.966)

B. Appellate Courts and Second Amendment Cases: A Question of Legitimacy

1. Karl Llewellyn and Appellate Court Decisionmaking

a) Trusting the Simple Cite

An examination of how Miller has been misused by lower federal courts should begin with questions about the role of appellate court decision-making. In 1960, Karl Llewellyn wrote that courts were feeling less and less constrained by precedent and that the "Formal Style" deference to precedent was eroding.[28] An entire chapter of his seminal work on the appellate decisionmaking process was devoted to categorizing legitimate and illegitimate techniques that courts use to escape the gravitational pull of precedent.[29]

While Llewellyn did not necessarily think that abandonment of stare decisis was always a bad thing, he did warn of the growing loss of confidence among older members of the bar in the predictability of appellate decisions. Even more alarming to Llewellyn was the growing sentiment among the younger members of the bar that one could not predict appellate outcomes from existing doctrines, and that the judges just rationalized predetermined outcomes, whatever the law might be.[30] Still "worst" for Llewellyn was that "the courts themselves may by tomorrow have lost their own feeling for and responsibility to continuity."[31] Llewellyn noted many techniques that have been developed for evading responsibility for court decisions by courts themselves. As lower federal court opinions which purport to apply Miller are examined, several of these techniques will become readily recognizable. The question that most often arises in the case of post-Miller federal court opinions is that which Llewellyn asks: "Can the Simple Site Be Trusted?"[32] By posing such a question, Llewellyn is asking whether, when a court cites a case in support of its statement of the law, the case so cited actually stands for that proposition. As that same question is posed to (p.967)courts citing Miller in support of various sweeping statements about the Second Amendment, the answer, sadly, is "No."

b) Manhandling the Facts

One of Llewellyn's illegitimate precedent-avoidance techniques is described as

manhandling ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach.[33]

A further illegitimate precedent-avoidance is "the unvarnished citation of a few alleged authorities which have little or nothing to do with the proposition for which they are cited."[34] Llewellyn concludes that despite a "pure heart" on the part of the judges, "the cost of such procedure is excessive, it is exorbitant ... [w]hen the fair--even the strained--meaning of an authority is distorted into nonrecognizability, the immediate effect on the detail of doctrine in question is confusion."[35] As for disingenuously citing authority for untoward propositions, this is venal, as compared to other judicial sins, but

[s]uch action leaves the particular point moderately clear: the court has wanted it badly enough to lie to get it.... But it does rap at a thing capital: it raises doubts about either competence or candor in judicial craftsmanship, and any such doubt leaks over into worry over wisdom, even over uprightness of the court. Today, ... any practice such as any of the above must be pilloried as flatly and flagrantly illegitimate.[36]

c) The Importance of Honesty

Attempting to change the law or extend precedent to cover an unimagined situation without acknowledging the change in the name of stability, Llewellyn maintains, actually undermines stability by encouraging courts to make dishonest or illogical citations to cases as if those cases cited actually addressed the issue before the court. This is particularly dangerous because(p.968)

[t]he pseudo gain in stability of the precedent-regime which, for the moment at least, and perhaps forever, lies in covering up the particular change is ... no real gain; and, if it were, it would rest still on a mistaken choice of policy. For the gain sought is a gain in confidence in institutions and in officers; whereas these vagaries of practice ... infect and rot away that very confidence; and whereas we draw from the long years of the Grand Style in our common law tradition abundant evidence that change in case law, when based on reason and accompanied by explicit reason given, not only does not sap but strengthens confidence in the appellate courts and in their work.[37]

These illegitimate practices Llewellyn indicts as "evil," and as

true and low abuses of power entrusted for other ends: their cost is too high, their policy is unsound, they are consonant neither with candor nor with courage, they are as unnecessary as they are misleading, they tend to trip up even their practitioners, and they inexcusably undercut clean interaction and understanding between bar and bench.[38]

Legitimacy is the core of Llewellyn's concern. As a good Realist, Llewellyn realized that all law, and not just common law, is to a substantial extent judge-made. When a judge or a group of judges renders a decision memorialized by a published opinion, the law bears the indelible print of the court's consideration. The court must then rely on the other branches to see that its rulings are given life. It is incumbent upon judges, particularly when faced with a constitutional question, to render a reasoned opinion which analyzes precedent fairly and applies or interprets the law before it without preconceived notions of how the case ought to come out. Moreover, as new facts and information come to life which elucidate earlier decisions and perhaps highlight mistakes, courts should not invoke stare decisis out of discomfiture with possible ramifications of their decisions, if by not rendering that decision they run the risk of calling into question the intelligence, honesty and integrity of the bench.

While Llewellyn admits that "[t]here are no panaceas,"[39] he does suggest how courts should decide appellate cases. He personally favors what he terms the "Grand Style" of reason in which the judge, through the application of reason and sense, and by developing an eye for the "type-situation" and the (p.969)"type-problem," formulates rules of law.[40] These rules of law are to be distinguished from "mere just or right decisions, much less ... decisions merely according to any personal equities in individual cases."[41] Llewellyn concludes that:

The whole setup leads above all--a recognition of imperfection in language and in officer--to on-going and unceasing judicial review of prior judicial decision on the side of rule, too, and technique. That, plus freedom and duty to do justice with the rules but within both them and their whole temper, that is the freedom, the leeway for own-contribution, the scope for the person, which the system offers.[42]

2. Legitimacy: The Price of Precedent-Avoidance

As Alexander Hamilton noted in The Federalist, the courts have only "Judgment," as opposed to "Force" or "Will."[43] Hamilton also noted that "the courts must declare the sense of the law; and if they should exercise WILL instead of JUDGMENT, the correspondence would equally be the substitution of their pleasure for that of the legislative body."[44] Thus, were the court to exceed its legitimate role of declaring "the sense of the law," the judiciary would lose legitimacy. The desire for the courts to be seen as rendering judgments untainted by partisan concerns or by public pressure was one reason that the Framers' sought to protect federal judges from the vicissitudes of political majorities by providing them with life tenure during good behavior.[45] Judges ought to be able to render legitimate, as opposed to politically expedient, judgments while protected from the "occasional ill humors in the society." This independence was hoped to produce firmness of judicial character. Of this Hamilton writes, "[c]onsiderate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today."[46](p.970)

While scholars have articulated theories supporting the exercise of judicial powers, particularly that of judicial review,[47] the judges have imposed restraints on themselves in an effort to demonstrate to others that they will not abuse their unique position in our constitutional democracy.[48] Many courts have struggled with the legitimacy of judicial review in the wake of the New Deal, which authorized an unprecedented expansion of federal power, and the Warren Court, which just as radically altered the relationship between government and its citizens. Lower federal courts were often on the front lines, charged with implementing decisions that, whatever their social utility, were neither "based on reason" nor "accompanied by explicit reason given."[49] Cynics began to appear correct: the Constitution is what the judges say it is--and nothing more.

3. The Courts and the Second Amendment: An Overview

Such cynicism can wear on the body politic. Once the legitimacy of those charged with making sense of the law is questioned when they are seen exercising only Will, and as more people believe that the supposed foundation of our polity is merely a rhetorical exercise, it is only a matter of time before the institutions established by the document are ridiculed.[50] One sees this today: doubts about government legitimacy may be one of the reasons for the proliferation of private "militias" around the country. I am convinced, particularly after reading lower court decisions, that their hostility is given further impetus by the casual manner with which Second Amendment claims are addressed by the courts. Beginning with Miller, decided in 1939, and continuing on through the Ninth Circuit's recent decision in Hickman v. (p.971)Block,[51] there has been a collective judicial assumption made about the Second Amendment that the Framers' could not have really meant that individuals should have a judicially-enforceable right to keep and bear arms.

The most common approach in disposing of Second Amendment claims in the lower courts has been to apply what the courts have decided is the Miller "test." Of course, the courts are not in agreement as to what the Miller test is. Reading the cases, one gets the feeling that the lower courts simply invent new obstacles as soon as the old ones are surmounted by sharp litigants with carefully crafted claims. Although the formulations tend to overlap as courts freely borrow from one another's opinions, there are basically three interpretations of Miller.

The first concludes that Miller directs courts to grant Second Amendment protection only where there is some demonstrable relationship between the weapon that is restricted and the maintenance of a militia.[52] As it became evident that almost any type of weapon could be effectively used in combat, the courts' focus shifted to the state of mind of the possessor, i.e., did the person using or possessing the weapon have first and foremost in her mind the intent to insure the maintenance and efficacy of a militia. Finally, if a plaintiff can overcome the tests in the first two formulations of the test, the court might play its trump card: no individual can make such a colorable Second Amendment claim because the Second Amendment protects only a collective right of undifferentiated state citizens to form militias and to employ them to oppose federal tyranny. A variation on this theme reads the Second Amendment as protecting only the states' right to maintain militias free from federal control.[53] Over the years, the courts (p.972)have moved so far away from what Miller actually says that their citations of the case cease to have any meaning. The courts seem guilty of using the illegitimate precedent-avoidance techniques Karl Llewellyn described as "manhandling facts" and the "unvarnished citation of ... alleged authorities" to avoid outcomes "the court cannot stomach."[54]

Thus, the history of Second Amendment jurisprudence is the history of the federal courts constructing arguments to explain away or at least limit the language of the Second Amendment. In order to preserve the stability of that "precedent," lower courts have resorted to many of the judicial sins, cardinal and venal, that Karl Llewellyn documented.[55] The short term stability of the courts' dishonesty in the face of contrary authority will likely be outweighed by the loss of legitimacy that courts will sustain by ignoring a right provided for in the Bill of Rights. The Second Amendment presents an opportunity for federal appellate courts to provide leadership in the vacuum left by the Supreme Court's unwillingness to revisit questions left unanswered by Miller. Supreme Court silence here is an invitation to action.

I. Miller, Cruikshank and Presser: Points of Departure

A. The Miller Decision

United States v. Miller[56] is the only case dealing directly with the Second Amendment decided by the Court this century.[57] Usually cited as proof of Supreme Court hostility to an individual rights interpretation of the Second Amendment,[58] the actual holding is considerably more ambiguous.(p.973)

Miller reached the Supreme Court on appeal from a Kansas district court opinion which held that § 6 of The National Firearms Act[59] violated the Second Amendment[60] to the Constitution.[61] The defendants, Jack Miller and Frank Layton, were charged with "unlawfully, knowingly, wilfully, and feloniously transport[ing] in interstate commerce ... a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length ... [and] not having registered said firearm as required."[62]

The trial court judge sustained a demurrer which alleged that § 6 of The National Firearms Act "offend[ed] the inhibition of the Second Amendment to the Constitution."[63] The Supreme Court reversed this decision and remanded the case to the district court.[64] At this point it is appropriate to note that the defendants were apparently unwilling to risk an unfavorable outcome in the Supreme Court. The defendants not only chose not to have counsel appear at the Supreme Court to engage in oral argument, but in fact disappeared[65] after the district court's decision was handed down.[66](p.974)

As a preliminary matter, that Miller made it to the Supreme Court at all is due to the fact that the government appealed the decision of the district court[67]--meaning the government lost at the trial court level.[68] The existence of the district court opinion proves that claims made by courts and critics of the Second Amendment that federal courts have uniformly rejected challenges to federal regulation of firearms on Second Amendment grounds[69] are just plain false. That the trial court's position was overturned on appeal is ultimately of little consequence, since the statement is usually made to imply that no right-thinking judge would ever entertain such an interpretation of the Second Amendment.

What, then, did the Supreme Court hold? Justice McReynolds, for a unanimous court, held simply that

[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.[70]

Read narrowly, the Supreme Court's decision was based more on an absence of evidence in the record than any searching inquiry into the origin and development of the Second Amendment.[71] Given the rather limited holding, it is important to note that Solicitor General Robert Jackson argued a (p.975)"collective-rights" interpretation[72] of the Second Amendment in the government's brief.[73]

Although the opinion assumes some connection between the right to keep and bear arms and a militia,[74] it is clear from the opinion that the Court did not buy wholesale the government's "collective rights" argument.[75] Had the Court accepted the government's interpretation of the Second Amendment, the case would have likely been disposed of on the issue of standing. This is because the defendants were not members of militias, and under the government's interpretation of the Second Amendment, the Court could have found that Jack Miller had no standing to invoke the Second Amendment in the district court.[76] For the government, Miller was less than a clear victory.[77](p.976)

More significantly, the actual holding of Miller is a far cry from the proposition for which it is cited by many groups: that the Second Amendment does not protect an individual, enforceable right. On the contrary, the Court's opinion acknowledges that historical sources "show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense .... And further, ... these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."[78] Unfortunately, the Court fails to explore the logical consequences of its conclusion. Thus Miller is perhaps most notable for the questions it left unanswered. What would have happened, for example, if Miller and Layton had retained an attorney to represent them at oral argument and put on evidence about the militia and weapons that militia members generally possessed? Or what if they had argued that the introductory phrase of the Second Amendment merely expressed a widespread sentiment against standing armies and was not meant to qualify or to limit the "right of the people to keep and bear arms?" Given the incomplete record before the Miller court, as well as the very narrow holding of the case, questions regarding the meaning of the Second Amendment and its outer limits should be regarded as far from settled. Nor should the alleged "unanimity" of Miller's application in the lower courts be evidence of its persuasiveness,[79] for, as I shall show, this "unanimity" is largely a function of the lower courts' less-than-honest treatment of Miller's holding.(p.977)

B. Cruikshank and Presser: The Second Amendment and the States

1. United States v. Cruikshank

Even if the Supreme Court overturned Miller, under existing case law states would still be free to regulate, to the extent permitted by various state constitutions, the right to keep and bear arms. Since comprehensive, nationwide gun control legislation is regarded as not politically feasible, many gun control advocates have concentrated their efforts at the state and local level. In places like New York state or Morton Grove, Illinois, gun control initiatives have been enacted. To what extent have courts held that the Second Amendment operates as a limitation upon state power? Unfortunately, the federal courts have employed reasoning from antiquated Supreme Court decisions--the foundations of which have been largely repudiated by modern Court decisions--in opinions addressing the Second Amendment's protection against state and local government attempts at gun control. Therefore, despite well over half a century of incorporation in which the federal courts have held almost all provisions of the Bill of Rights applicable to the states, the Second Amendment has not been applied to the states.[80]

Conventional wisdom holds that United States v. Cruikshank[81] settled the question of the Second Amendment's applicability to state governments.[82] However, in the haste to dispose of Second Amendment claims, the background against which the Cruikshank decision took place is ignored. Moreover, language in the opinion, as well as a half century of Supreme Court doctrine, calls into serious question the continuing viability of either the holding or the reasoning. Cruikshank, decided during Reconstruction, "was part of a larger campaign of the Court to ignore the original purpose of the Fourteenth (p.978)Amendment--to bring about a revolution in federalism, as well as race relations."[83]

Cruikshank originated in Louisiana where a sixteen count indictment was handed down against over one hundred individuals under § 6 of the Enforcement Act of 1870.[84] The indictment alleged that the defendants, inter alia, conspired to "hinder and prevent" two African-American citizens from exercising certain "rights and privileges."[85] Among the rights and privileges asserted were the "lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceable and lawful purpose"[86] and the right of "bearing arms for a lawful purpose."[87]

First, it is important to note that the Court's holding emphasizes that the guarantees in the Bill of Rights operate to restrain governments as opposed to individuals.[88] The necessary element of state action was missing. But in dicta, the portion of the opinion upon which modern lower courts tend to rely, the Court repeated the then-valid doctrine that the Bill of Rights does not apply to the states. Dismissing the First Amendment count, the Supreme Court found that despite the passage of the Fourteenth Amendment, the First Amendment to the Constitution "was not intended to limit the powers of the State governments in respect to their own citizens, but to operate on the National government alone."[89] Under the Court's construction, because the right of the people to peaceably assemble was neither "created" by the Constitution, (p.979)nor "was its continuance guaranteed, except as against congressional interference,"[90] the people must look to the states for protection of this right.[91]

The Court relied on much the same reasoning in dismissing the claim that the defendants conspired to hinder the complainants' right to "[bear] arms for a lawful purpose."[92] First noting that "bearing arms for a lawful purpose" was "not a right granted by the Constitution,"[93] the Court held that the Second Amendment's language "means no more than it shall not be infringed by Congress."[94] Concluding the short paragraph dealing with the Second Amendment, the Court stated that internal police powers were "not surrendered or constrained by the Constitution of the United States."[95]

The Supreme Court devoted exactly one paragraph in the entire opinion to the Second Amendment issue, an issue that was arguably ill-framed in the first place. Not only was there little analysis, but what analysis there was with regard to the First Amendment issue is now outdated when considered in light of the Supreme Court's incorporation decisions.[96] Yet, lower courts continue to cite this case for the proposition that the Second Amendment poses no obstacle to state gun control legislation, even if it amounts to an outright ban on certain types of arms. While lower courts have little choice but to apply Supreme Court precedent as it exists, the Court itself should revisit this decision, applying the criteria it has adopted for the incorporation of every other constitutional provision.[97](p.980)

2. Presser v. Illinois

The only other Supreme Court case that addresses in any detail the applicability of the Second Amendment to the states is the case of Presser v. Illinois.[98] In light of the development of subsequent Supreme Court doctrine, modern reliance on the logic of Presser, like that of Cruikshank, is anachronistic and begs for reexamination.

Presser was charged with violating an Illinois statute that made it a crime for "any body of men" other than "the regular organized volunteer militia of [Illinois], and the troops of the United States, to associate themselves together as a military company, or organization, or to drill or parade with arms" in the cities or towns of Illinois without a license of the Governor, who had unlimited authority to revoke that license.[99] In September of 1879, Presser and 400 fellow members of a society calling itself Lehr und Wehr Verein,[100] marched without gubernatorial license in the streets of Chicago.[101] Presser was convicted and fined ten dollars.[102]

Presser complained that this law of Illinois had the effect of depriving him of his Second Amendment right to keep and bear arms.[103] The Court answered that the right to gather as a group and hold armed parades was not included in the right to keep and bear arms and that "the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States."[104] The Court, of course, cited Cruikshank for support of this proposition.[105] Curiously, the Court, in dicta, suggests that to the extent that state citizens are also members of the national militia, state (p.981)regulation which prohibited "the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security" would not be sustainable, "even laying the [Second Amendment] out of view."[106] The Court did not explore that point further because it felt the Illinois statute in question was a valid exercise of the state's police power.[107] But the dicta of the case suggests, independent of the Second Amendment, that the state's right to restrict the lawful bearing of arms is not absolute. As one commentator notes,

[E]ven if the Second Amendment was not infringed by a state requirement of a license for private armed marches or even if it did not apply to the states, nevertheless, a right to keep and bear arms existed for "all citizens capable of bearing arms," and this right could not be infringed by the states.[108]

Subsequent courts have found it convenient, however, to ignore this loose thread left by the Presser Court.[109]

II. Lower Court Interpretations of Miller:
Going off the Rails

A. Casesand Tot

The first lower court cases interpreting Miller appeared in the early 1940s, during World War II. America's involvement in the war, as well as the whole notion of twentieth century "total war," seems to have had an impact on the courts' decisions. Unfortunately, the courts' interest in preserving the "stability" of the Miller "precedent regime"[110] by extending Miller, without acknowledging a change in the regime, has allowed subsequent courts to evade responsibility for their decisions by claiming fidelity to the Miller decision as "clarified" by Cases and Tot. The result has been the distortion of Miller into unrecognizability.[111]

1. Cases v. United States

In 1942, a mere three years after the Miller decision, the First Circuit decided a very interesting case that is the origin (p.982)of much of the subsequent confusion among the lower courts. One of the very few lower court cases to carefully parse the language of Miller and attempt to use the Court's logic to formulate the rule of law, Cases v. United States[112] raises an interesting challenge to the conventional reading of Miller. Uncomfortable with what it deemed to be the societal implications of the Miller case, the Cases court rejected Miller's logic, looking instead to the state of mind of the person claiming a Second Amendment right. The Cases court required that the person, as a prerequisite to maintaining a Second Amendment claim, have in mind the maintenance and preservation of the militia as his or her paramount concern.[113] In rejecting the Miller test, the Court stated that if it were to take Miller's reasoning to its logical conclusion,

under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by 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. However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases.[114]

While it may be correct that the Supreme Court did not intend its decision to be given a broad reading, the First Circuit offered no basis for its ultimate conclusion about Miller.

The most interesting portion of the Cases opinion is what the First Circuit concluded to be the consequences of a logical extension of the Miller rule, if it were intended to be applied broadly:

At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon.[115]

The court concluded that given the state of modern warfare, "if the rule of the Miller case is general and complete, the (p.983)result would follow that ... the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket ...."[116] The First Circuit worried that following the Miller rule would tend to make the limitation of the Second Amendment absolute,[117] and prevent the government from prohibiting "the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank, or anti-aircraft guns."[118]

Thus abandoning an attempt "to formulate any general test by which to determine the limits imposed by the Second Amendment,"[119] the court addressed the facts in the record. The court found that the defendant in question possessed a gun and ammunition, "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 that the Second Amendment was designed to foster as necessary to the security of a free state."[120] The court found that there was no conflict between the federal statute and the Second Amendment and upheld the conviction.[121]

While the Cases opinion does little to further any attempt by federal courts to give effect to the Second Amendment, it is notable for its expansion of the Supreme Court's language in Miller. Far from reading it as rendering no protection to an individual's right to keep and bear arms, the Cases court assumed, by carrying Justice McReynold's reasoning to its logical conclusion, that the Miller opinion, if intended as a general rule, afforded entirely too much protection to a wide range of potentially destructive devices that individuals might seek to possess.[122] The Second Circuit thus rejected the (p.984)Miller decision out of hand and proceeded, inexplicably, to engraft a state of mind requirement onto the Second Amendment where one had not previously existed. As we shall see, subsequent courts have seized upon Cases reasoning, expanding it even further in some instances.[123]

The Cases decision serves as a good example of a case decided according to what Karl Llewellyn would call the judges' "sense of the situation."[124] The court assumed that, as a matter of public policy, any meaningful limitation upon the government's ability to restrict private ownership of arms is bad; and the court decided the case accordingly, assuming that the framers of the Second Amendment did not intend it to present an impediment to the government in this regard.

2. United States v. Tot

United States v. Tot[125] offered historical analyses of the Second Amendment to support its reading of Miller, and to bolster the court's claims about the lack of a constitutional right to keep and bear arms. While notable for the attempt to use original source material to interpret the Second Amendment, the Tot court either discriminated against material that did not support its desired outcome, or simply cited sources that did not support its position.[126]

The defendant in Tot was convicted of violating a federal law which prohibited the possession of a firearm capable of being fitted with a silencer.[127] One of the grounds upon which the defendant attacked his conviction was the Second Amendment.[128] The Third Circuit embarked upon its interpretation of the history surrounding the adoption of the (p.985)Second Amendment and offered its conclusions to "explain" the Supreme Court's Miller decision. Like the Cases court, the Third Circuit thought that the Miller decision left a good deal unanswered.[129]

The Tot court begins its discussion of the Second Amendment claim as follows:

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 encroachment by the federal power.[130]

The court offered little support for this sweeping conclusion and ignored much writing to the contrary. Recounting abuses in England under James II,[131] the court concluded that the colonists "wanted no repetition of that experience in their newly formed government."[132] The Third Circuit thus implied that the Framers drafted the amendment as a mere constitutional admonishment to the government not to overstep its bounds with respect to the states or citizens, lest it become worse than what it replaced. For, despite whatever rhetorical force the amendment may possess, the court certainly did not consider it a right the Framers would have thought to give individuals. The right was treated by the court as, to quote a later court, mere "historical residue."[133] Once again, the court was unshakable in its belief that the Framers did not mean what the language of the Second Amendment suggests they meant--that individuals have a right to keep and bear arms.

The court then made a curious observation. "Weapon bearing," it stated, "was never treated as anything like an absolute right by the common law.[134] It was regulated by (p.986)statute as to time and place as far back as the Statute of Northampton in 1328[135] and on many occasions since."[136] The court continued, stating that

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 restrictions, but which do not go so far as substantially to interfere with the public interest protected by the constitutional mandates.[137]

Judicial refusal to recognize the right to bear arms as an absolute right does not mean, however, that this right was not meant to be a right possessed by individuals. Yet the Tot court asserted with confidence that the Second Amendment "was not adopted with individual rights in mind."[138] Although states regulated certain types of weapons notwithstanding their state constitutions that protected the right to keep and bear arms, state courts were often unsympathetic to local governments' (p.987)attempts to ban certain types of weapons outright.[139] More importantly, federal courts' reliance on state experiences are of little relevance because the federal government does not possess the broad police powers that state governments do.[140] Thus, the Tot court's contributions to Second Amendment jurisprudence are of questionable significance.

Most federal court decisions that followed challenges to post-1968 federal gun control legislation "almost invariably seek support not in any historical document, but in similarly nonsupported previous cases, traceable to the Cases and Tot precedents."[141] Courts dismiss Second Amendment claims with banal statements like the following: "[t]here can be little dispute with the proposition that 'there is no absolute constitutional right of an individual to possess a firearm.'"[142] A district court in Pennsylvania offered the similarly unhelpful observation that "[t]he Second Amendment to the Constitution is not a bar to Congressional regulation of use and possession of firearms."[143] Courts and commentators who argue against an "absolute" Second Amendment right weigh in against a straw man since no reasonable scholar has argued that the Second Amendment right is any more absolute than the First Amendment.[144] Such willingness to engage arguments that no one is making demonstrates the reluctance of (p.988)federal courts even to hypothecate, based on the holding in Miller, situations in which government regulation of firearms would infringe upon the protections given by the Second Amendment. These courts give no indication of what the law is and provide no guidance to legislators.[145]

Similar to the Tot court's reasoning, a South Carolina district court judge in United States v. Jones[146] reasoned that "[s]ince there is no absolute constitutional right of an individual to possess a firearm ... the test of determining the constitutionality of 18 U.S.C. § 922(h) (4)[147] depends on finding a rational basis for the particular classification."[148] Under this judge's formulation, no right that is not absolute can qualify as "fundamental," thus triggering the heightened scrutiny of federal courts. Under such a test, there is not a right in the Constitution that would so qualify. It would be hard to imagine a similar statement being made in connection with federal restrictions of freedom of speech or religion.

Other courts disingenuously cite Miller purporting to show that, historically, "the right to keep and bear arms is not a right given by the United States Constitution."[149] Similar sentiment was expressed by a New Hampshire district court that stated, "[i]t is well established that the Second Amendment is not a grant of a right but a limitation upon the power of Congress and the national government."[150] Both cases cite Miller for that proposition even though there is no language in Miller that suggests such an interpretation was a part of the Court's holding.[151] Further, the courts employing this reasoning do not explain the effect such observations have on the interpretation of the Second Amendment, i.e., how does it limit the power of Congress?(p.989)

B. Can the Simple Cite Be Trusted?

1. United States v. Warin

Following the lower court decisions in Cases and Tot, there was little litigation concerning the Second Amendment until individuals began to challenge the federal gun control legislation of the late 1960s. Unfortunately, many of these contemporary courts seized on Cases' bizarre state of mind requirement and Tot's unsupported "collective theory" interpretation as a convenient way to dispose of bothersome Second Amendment claims. Further, many courts began to cite Miller as actually standing for the holdings in Cases and Tot. These decisions made it possible for courts to make statements like that of a Minnesota district court, which held, citing Miller, that since "[t]here is no evidence ... that the defendant was possessing the ... .22 caliber semi-automatic rifle with any thought or intention of contributing to the efficiency of the well-regulated militia," her conviction on federal firearms charges should be upheld.[152] While such judicial hostility to Second Amendment claims would normally discourage all but the most desperate defendants, as the case of United States v. Warin[153] demonstrates, one should never underestimate the ingenuity of the citizen accused or his lawyer in formulating a clever argument. But again in Warin, the courts changed the rules, while maintaining piously that Second Amendment jurisprudence had followed studiously the language of Miller.

Francis J. Warin was convicted by an Ohio district court for possessing an unlicensed submachine gun, in violation of federal law.[154] Mr. Warin appealed on the grounds that he was a member of the "sedentary militia" of Ohio[155] and that he had been making improvements to the weapon in question so that he might offer it "to the Government as an improvement on the military weapons presently in use."[156] Warin (p.990)seems to have satisfied the rigorous test set forth in Cases and in Hale. The Sixth Circuit disagreed and affirmed the conviction.[157]

In affirming Warin's conviction, the Sixth Circuit articulated a variation on the theme in Cases and held that the Miller decision articulated no hard and fast rule.[158] The court relied on a case it had decided just five years before, Stevens v. United States,[159] which held that since the Second Amendment "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 to possess a firearm."[160] Based on the Stevens decision, the court felt it could confidently conclude that "[i]t is clear that the Second Amendment guarantees a collective rather than an individual right."[161] The Stevens court cited Miller[162] for the proposition that there can be "no serious claim to any express constitutional right of an individual to possess a firearm" and that the Second Amendment applies only "to the right of the State to maintain a militia.[163]

The Sixth Circuit's Warin opinion does, however, give one a clue as to what the court's real concern was. Needless to say, neither stare decisis nor fidelity to the text or the intent of the Second Amendment has much to do with its decision. Describing the First Circuit's opinion in Cases, the court wrote the following:

The ... [First Circuit] noted the development of new weaponry during the early years of World War II and concluded that it was not the intention of the Supreme Court to hold that the Second (p.991)Amendment prohibits Congress from regulating any weapons except antiques "such as a flintlock musket or a matchlock harquebus...." If the logical extension of the defendant's argument for the holding of Miller was inconceivable in 1942, it is completely irrational in this time of nuclear weapons.[164]

Of course, the statement is a non sequitur since no one is talking about the right to keep and bear a nuclear weapon. The court explicitly endorses the Second Circuit's disregard of the Second Amendment based on technological advancement. In doing so, it adopts the Cases court's assumptions that recognition of limits in the Second Amendment, or even an honest application of the logic of Miller, would lead to anarchy. Arguing that the Second Amendment might be employed to vindicate an individual's right to possess nuclear weapons represents the steepest slippery slope argument available.[165] It also belies a world view in which government is the sole legitimate instrument of violence.

2. United States v. Hale

More recently, the Eighth Circuit, describing Cases as "one of the most illuminating circuit opinions on the subject of 'military' weapons and the Second Amendment," based its opinion in United States v. Hale[166] in large part on its reading of Cases and not on Miller.[167] Hale involved the prosecution and conviction of an individual for possession of unregistered machine guns in violation of federal law.[168] The defendant appealed his conviction, arguing that the indictment violated his Second Amendment rights.[169] The Defendant made the plausible argument that, based on Miller, he had every right to possess the machine guns because they were just the sort of weapons that would be employed by a military unit, and thus were weapons that would contribute to the preservation or (p.992)efficiency of the militia.[170] The Eight Circuit rejected this interpretation of Miller, claiming without explanation that the function of the Miller court's language to that effect was merely to "recogniz[e] ... historical residue."[171]

The court went on to cite Cases approvingly for the following proposition:

[T]he claimant of Second Amendment protection must prove that his or her possession of the weapon was reasonably related to a well regulated militia.... Where such a claimant presented no evidence either that he was a member of a military organization or that his use of the weapon was "in preparation for a military career," the Second Amendment did not protect the possession of that weapon.[172]

It would have been egregious enough had the Eighth Circuit merely stopped at dismissing the holding of the Miller opinion as "historical residue," but the court compounded its error by conditioning Second Amendment rights upon a showing of membership in or preparation for membership in a military organization![173] If "militia," as used in the Second Amendment, (p.993)meant anything to the Framers, it was intended to be the opposite of "army."[174] It seems the court wanted the decision "badly enough to lie to get it."[175]

3. Quilici v. Morton Grove

The Seventh Circuit, in Quilici v. Morton Grove,[176] relied heavily on Presser and ignored Cruikshank in its decision upholding the constitutionality of a city's ban on the possession of handguns within the city limits. Victor Quilici and others initially brought suit against the city in state court.[177] After Morton Grove removed the action to federal district court, that court granted Morton Grove's motion for summary judgment.[178] In granting the motion for summary judgment, the district court, relying on Presser, stated that the Second Amendment had not been applied to the states through the Fourteenth Amendment, and thus was ineffective as a restraint upon the states.[179](p.994)

The Seventh Circuit agreed with the district court. In a 2-1 decision, the court held that the Second Amendment did not apply to the states.[180] The court ignored the fact that the Presser decision did not address the individual right to keep and bear arms and rejected as "dicta quoted out of context" the language from Presser in which the Supreme Court stated that, independent of the Second Amendment protections, states could not so impair their citizens' right to bear arms in a manner which deprived the United States of a means for its defense.[181] Similarly, the court rejected the related arguments that the entire Bill of Rights has been incorporated[182] and that Presser is no longer good law.[183]

Presser was not decided in a vacuum. The Presser Court specifically relied upon Cruikshank in support of its decision.[184] As previously mentioned, the Cruikshank Court gave only cursory treatment to the Second Amendment claim, devoting much of its decision to refuting the notion that the First Amendment provided any protection to individuals from other individuals not acting under government authority, and, in any event, holding that the Bill of Rights did not operate against the states.[185] The 1912 Supreme Court decision of Gitlow v. New York[186] which applied the First Amendment, by assumption, to the states seems to have overruled Cruikshank sub silento or at least would seem to approve the reexamination of its theoretical underpinnings. While the Seventh Circuit is correct that the Supreme Court has never held that the entire Bill of Rights is incorporated through the Due Process Clause of the Fourteenth Amendment,[187] it is curious that it declines (p.995)to articulate the test by which the Supreme Court purports to evaluate whether a particular provision is deserving of incorporation and to apply that test to the Second Amendment.[188] As the dissent points out, there is an argument that "nothing could be more fundamental to the 'concept of ordered liberty' than the basic right of an individual, within the confines of the criminal law, to protect his home and family from unlawful and dangerous intrusions."[189]

Unfortunately, the Quilici court also took the opportunity to parrot the predominant judicial thinking regarding the meaning of the Second Amendment and contributed to a wider misunderstanding of Miller.[190] Predictably, the court found that "according to its plain meaning, ... the right to bear arms is inextricably connected to the preservation of a militia."[191] Further, the court cited Miller for the proposition that "the right to keep and bear arms extends only to those arms which are necessary to maintain a well regulated militia."[192] The court expressed incredulity at the appellants' argument 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."[193] The majority remarked blithely that appellants "offer no explanation for how they have arrived at this conclusion."[194] By way of response, one might paraphrase William Van Alstyne who writes of the Second Amendment (p.996)that, whatever words serve as a prelude, the right to keep and bear arms belongs to the people.[195]

4. Love, Hickman and the Rise of the "Collective Rights" Theory of Miller

The most popular theory of the Second Amendment is now the so-called "collective right" theory advanced by the government but implicitly rejected by the Supreme Court in Miller, then resurrected by the Third Circuit Court of Appeals in United States v. Tot. Advocated by scholars like Dennis Henigan and Andrew Herz, the collective right argument proposes that the Second Amendment was primarily intended to prevent federal interference with the militias of the individual states. Since the National Guard, they argue, has replaced the militias of the individual states, the Second Amendment--like the Third Amendment[196]--is little more than an anachronistic curiosity.[197]

Recently, the Fourth Circuit joined the fray in Love v. Pepersack.[198] The Fourth Circuit concluded that "lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual right"[199] and that it is the "collective right of keeping and bearing arms which must bear a 'reasonable relationship to the preservation or efficiency of a well-regulated militia.'"[200] Just as courts have not been impressed by such arguments in the past, the present court concluded that the defendant in the case "has likewise not identified how her possession of a handgun will preserve or insure the effectiveness of the militia."[201](p.997)

Even more recently, the Ninth Circuit has embraced the "collective rights" theory of the Second Amendment. In Hickman v. Block[202] the Ninth Circuit rejected the plaintiff's Second Amendment challenge to state and municipal officials in California who rejected his application for a concealed carry permit.[203] The Ninth Circuit rejected the challenge, not on the ground that the Second Amendment did not apply to the states,[204] but on the grounds that the plaintiff lacked standing to bring the claim at all. The court held as follows: "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. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action."[205]

In its analysis, the Ninth Circuit ignored whatever historical materials were provided to it, as well as the incredible amount of scholarly information about the Second Amendment that is now available. Further, the opinion makes several errors that cause the reader to question whether the author of the opinion actually read the cases she cited. First, the court repeats the erroneous statement that "no individual has ever succeeded in demonstrating such injury in federal court."[206] I have shown this to be completely false.[207] Further, the court maintains that the decision in Miller "upheld a conviction under the National Firearms Act."[208] This too, is incorrect. The Supreme Court in Miller merely vacated the lower court decision that quashed the indictment of the defendants.[209] Further, the fact there was no appearance at the Supreme Court for Layton, and that it was the government which pursued the appeal from the lower court renders the Ninth Circuit's interpretation of the Miller decision erroneous as well: "The Court rejected the appellant's hypothesis that the Second Amendment protected his possession of [a sawed-off shotgun] .... [T]he Court found that the right to keep and (p.998)bear arms is meant solely to protect the right of the states to keep and maintain armed militia."[210] The Miller Court merely refused to take judicial notice of the fact that Miller's sawed-off shotgun was the type of weapon which would be useful to a militia. Further, as I pointed out earlier, the government strenuously argued in its brief for the position that the Ninth Circuit adopts, and which the Supreme Court did not: that the Second Amendment protects only a state's right to an armed militia.[211] Finally, the Ninth Circuit cites the usual suspects for support of its position and concludes that "[b]ecause 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."[212]

The Ninth Circuit had an opportunity to make use of the works of many talented legal scholars to correct the judicial neglect of the Second Amendment. Sadly, with its inartful and erroneous opinion, it chose to continue the regretful tradition of judicial indifference to those making Second Amendment claims. The Hickman decision adds another layer of judicial gloss on Miller, as inaccurate as it is thick, making it all the more difficult for future courts to strip away.

Conclusion

Reading lower federal court opinions where a Second Amendment challenge is raised, one can hear the exasperated sighs emanating from the pages. Mr. Kallgren of the ABA expresses similar disbelief at the prospect that any right thinking lawyer who paid attention during Constitutional Law could hold the belief that the Second Amendment means anything. "The Supreme Court has settled this!" they cry.[213] Courts invoke Miller with vehemence and regularity in dismissing, out of hand, challenges to the various pieces of gun control legislation passed by Congress in the last fifty years.[214](p.999)

In all fairness to Mr. Kallgren and the ABA, if one were to read only the lower court opinions since 1939, the year Miller was decided, one would come away fairly convinced that the Supreme Court had in fact settled all past and future issues with respect to the Second Amendment. A close examination of the lower courts' opinions and comparison with the actual holding of Miller, however, reveals that the lower courts have demonstrated a remarkable obtuseness, sometimes lurching into intellectual dishonesty. As I have shown, the courts have indulged in constitutional gymnastics in an effort to avoid construing the Second Amendment to contain anything resembling a right under which an individual might make a colorable claim. On this point alone, courts might be said to be construing the wording of a provision of the Constitution to be meaningless--a result that should be avoided.[215](p.1000)

While difficult to classify because the reasoning of the opinions overlaps to some degree, it is possible to ascertain different approaches taken by federal courts over the years in an effort to render the Second Amendment a constitutional eunuch. It is fair to say that the "interpretations" of the Miller decision tend to evolve in response to arguments following the logic of the Miller decision to a reasonable conclusion. While few lower courts choose to do more than issue conclusory statements regarding the Second Amendment and the right to keep and bear arms (always slavishly citing Miller as if the Supreme Court's decision supported their statements), their steadfast reluctance to recognize an enforceable right in the Second Amendment often has little to do with the Miller decision and more with the courts' discomfit with the right to keep and bear arms as a matter of public policy.[216]

Surveying the state of Second Amendment jurisprudence, another one of Karl Llewellyn's judicial decision-making models comes to mind. The phrase Llewellyn uses is "sense of the situation."[217] This is no more than how the court "sees" the case and how, through the application of "fireside equities," judges think a case should be decided. Llewellyn writes that the "felt sense of a situation" can "strongly ... affect the court's choice of techniques for reading or interpreting and then applying the authorities."[218] The greater the felt need, as perceived by the courts, the more leeway they believe they have to "reshap[e] an authority or the authorities."[219] Sometimes judges get so caught up in the personalities involved in a particular case such that:

[I]t is hard to disentangle general sense from personalities and from "fireside" equities. Such response is dangerous ... because it leads readily to finding an out for this case only--and that leads (p.1001)to a complicating multiplicity of refinement and distinction, as also to repeated resort to analogies unthought through and unfortunate of extension.

...

It is, instead, the business of the courts to use the precedents constantly to make the law always a little better, to correct old mistakes, to recorrect mistaken or ill-advised attempts at correction--but always within limits severely set not only by the precedents, but equally by the traditions of right conduct in judicial office.[220]

Federal judges who address constitutional questions are not common law judges, free to change the law in light of changing "sense" and public policy. The Constitution as text and tradition commands their fidelity and restrains their decisions. Presumably all but the most unrepentant activist would acknowledge that when adjudicating constitutional issues, justices and judges are not free to write on a blank slate. However, many of the courts interpreting Miller in the nuclear age have concluded that the stakes are too high to trust anyone but the State with war-making capabilities.[221] They then look to history to support them in their assumptions that the Founders would not have intended that either or interpret the amendment into meaninglessness. This is a dangerous tactic, for as Joseph Story wrote,

If, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not have intended what they say, it must be one, where the absurdity and injustice of applying the provision to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.[222]

According to a poll taken in the spring of 1995, seventy-five percent of Americans believe citizens possess a constitutional right to keep and bear arms.[223](p.1002)

There are two lessons that might be drawn from a survey of post-Miller Second Amendment decisions: one about federal judges; the other, about their audience--the public at large. Federal judges, like Llewellyn's common law judges, are driven by a sense of situation, Constitution or no Constitution. Precedent is no obstacle to determined federal courts.[224] This is nowhere better illustrated than in the Second Amendment cases. One explanation of their reluctance to treat the subject with honesty and candor may be the unappetizing prospect of having to outline the boundaries of the right, once admitted. Unfortunately, it appears that the judges are more uncomfortable with the right qua right. Reading the opinions one senses not only the exasperation rising from the pages of the judges' opinions, but also the nervousness, bordering on hysteria, which results from someone audaciously questioning collective judicial assumptions about the Second Amendment.[225] Judges' unwillingness to reexamine the judicial conventional wisdom in light of recent scholarship and repeated use of slippery slope arguments are symptoms of an underlying distrust of a provision of the Constitution that they think is just plain bad public policy.

Whatever doubts the judiciary harbors about the Second Amendment, the public seems not to share them. The seventy-five percent of Americans who believe the Second Amendment means what it says hardly constitute the unanimous rejection of "all mankind" Joseph Story suggests would be necessary to render a provision of the Constitution meaningless.[226] The gun control lobby has been able to employ the professional bar,[227] many federal judges, law professors[228] and even a former Chief Justice of the United States[229] to publicize its view that the Second Amendment is antiquated and that the (p.1003)price of its viability is outweighed by its social cost. They have been most successful preaching to the converted.[230] With the wider audience of the American people, however, the elites have been wholly unpersuasive.

It is perhaps for that reason that Andrew Herz exhorts his like-minded colleagues to dust off "their hard drives" and "weigh in on gun control," but not in "the insular literary universe of the law review."[231] He tells his colleagues to eschew the "law review culture," in favor of fulfilling their "social responsibility to venture forth to frame popular arguments."[232] Such popular arguments are happily free from the rigors of scholarship and the examination of one's peers--perfect for the sort of "talking head constitutionalism"[233] Herz advocates, whereby one's reading of the Constitution supports one's preconceived notions of good and bad policy.[234]

Lawyers, judges, courts and the government in general have come under increasing suspicion from those citizens who believe many of these same elites manipulate the system at the expense of the "common man." It is this sort of distrust that breeds the resentment that manifests itself in what historian Gordon Wood termed "out-of-doors" political activity[235]--private militias[236] and the so-called "common law courts" are two contemporary examples. By staking their prestige and power of judgment on a position that citizens do not accept and new scholarship shows to be untenable, federal courts that continue to nonchalantly dismiss the Second Amendment, (p.1004)disingenuously citing Miller as their authority, do so at the risk of their legitimacy. Miller left many questions unanswered and the assumptions upon which it was decided bear reevaluation.

The Second Amendment offers an opportunity for federal courts. The question now is whether a federal court will seize the opportunity to provide leadership and judicially reinvigorate a constitutional right that has too long suffered from judicial sclerosis, or will the courts continue to misconstrue Miller, the result being further failure and confusion?[237] To judges who may be faced with a Second Amendment case, scholars who wish to engage the subject, or even laypersons who want to figure it out for themselves, I conclude with some unintentionally apt advice (and an admonition) from Karl Llewellyn:

First: The necessity and duty of constant creative choice demands open accounting to the authorities, to the situation, and to reason; with an eye always on the basic need for wiser and for clearer guidance for tomorrow.

Second: A conscious recognition of the foregoing and a conscious effort to mobilize the best tested resources can very materially step up marksmanship and reduce off-target shots. Insight and inspiration flourish best in the black earth of schooled craftsmanship. The great stroke, the fortunate stroke, that can clarify a whole area, is most likely when the years of neat smaller jobs have gone before.

Third: There are no panaceas.[238]