November 11, 2020
Second Amendment: History and Current Issues
Philip Carchman
Presiding Judge, New Jersey Superior Court,
Appellate Division, Retired
Ruth Miller, Introducer, and Philip Carchman
Minutes of the Tenth Meeting of the 79th Year
President Stephen Schreiber called the meeting to order, and Peter Epstein read the minutes of the previous meeting. Rogers Woolston had Cynthia Woolston Maltenfort as a guest and she is a candidate for membership. Joan Girgus had Alan Chimacoff, her husband, as a guest. George Bustin had Tom Swift as a guest and he is a candidate for membership. At least 161 individuals attended the zoom meeting (this is believed to be a new record for the Old Guard). A survey was taken to determine if members would like to continue on Zoom after the formal meeting either to discuss the talk or to socialize. The next meeting of the Old Guard will be held on Wednesday, November 18th at 10:15 a.m. and the speaker is Laura Berlik. The title of her talk is "Winging It: America's Earliest Avian Artists."
Ruth Miller introduced the speaker, Philip Carchman. He has held virtually every judicial position in New Jersey. He graduated from the Wharton School and received his law degree from the University of Pennsylvania Law School. He is retired and shortly will become a member of the Old Guard.
After telling a few humorous stories about giving Zoom talks, Judge Carchman changed the title of his talk to: "The British are Coming ... the Second Amendment and the Right to Bear Arms." What were the British coming for? The guns owned by the colonists and stored collectively in an armory. The king knew that, without guns, the revolution would be stillborn. The talk focused on the Second Amendment, the most enigmatic and, in modern times, controversial of the ten amendments constituting the Bill of Rights. In 1791 when the Second Amendment was ratified, and for almost 150 years thereafter, there was no controversy about it.
What was in the framers' minds when they drafted this 27-word amendment? There is a paucity of information about that. Instead, two issues dominated the debate: slavery and the relationship of the states to the newly formed federal government. The framers looked to English history in formulating the Second Amendment. At this time, there was an obligation to bear arms rather than a right. James II tried gun control by prohibiting Protestants from owning them, but most of his subjects were Protestants. William and Mary reversed the law, and there was a declaration of rights that gave subjects the right to own guns and gave to Parliament the right to regulate arms. From this background, James Madison recognized three principles for arming the public: One, arms were necessary for personal and collective defense; two, militias were preferred to standing armies; and three, the sovereign could not be permitted to confiscate the people's arms. Below is the language upon which the framers decided:
"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."
What is missing in the language of the Second Amendment is any mention of self-defense. In 1792, Congress passed the Militia Act. It was specific as to who could serve, that is, white men under the age of 45, and what kind of arms they needed, but militias failed to provide the arms. Until the end of the Civil War, there were limitations on who could own guns. The 14th Amendment freed enslaved people and granted them citizenship, though they had the right to own guns. Legislation and regulation of arms were left to the states, and southern states prohibited Black men from owning arms. After the Civil War, slave patrols were formed to disarm Black men. The Ku Klux Klan arose, and Negro militias were formed for defense.
The United States Supreme Court then came into play in United States v. Cruikshank. On Easter Sunday in 1873 in Colfax, Louisiana, a white militia attacked a Black militia. Over 200 Black men were killed. Louisiana refused to prosecute anyone, and the federal government charged several members of the white mob. Bill Cruikshank was charged with violation of the 14th Amendment. He was convicted, but the Supreme Court overturned the conviction in a five- to- four decision. The case is best known for the proposition that the Bill of Rights is not incorporated into the 14th Amendment. Only states could grant Black men the right to bear arms. This spikes the argument that individuals have the absolute right to own guns.
Gun control is not a new concept. Public musters required guns to be inspected and accounted for on the public roll. In some states, house-to-house registration of guns took place. Governments had the right to confiscate guns, and the storage of gunpowder was regulated for safety reasons. The 1881 gunfight at the O.K. Corral in Tombstone, Arizona, involved a dispute over a restriction that guns should be checked and not carried openly on the streets.
In Presser v. Illinois, the U. S. Supreme Court took a case involving a parade on the streets of Chicago that included armed marchers. They were arrested for violating an Illinois law prohibiting marchers from carrying arms unless they were part of a state militia. Defendants argued that they were protected by the Second Amendment. The Court upheld the Illinois statute on the rationale that the Second Amendment does not apply to the states.
The 20th century ushered in a new type of criminal. On February 14, 1929, the St. Valentine's Day Massacre took place in Chicago, and the public was outraged. In response, Congress passed the National Firearms Act, which taxed certain firearms and required registration. United States v. Miller is a case challenging the validity of that statute. Miller was arrested for transporting a sawed-off shotgun across state lines. The trial court found that Miller was protected by the Second Amendment and released him. A unanimous Supreme Court reversed upholding the statute on a finding that such a weapon has no connection to a militia and could not be used for the common defense.
Race became the dominant issue in the later 20th century. The period saw the rise of more militant protest groups, such as the Black Panthers. They eschewed non-violence and espoused gun ownership for Black men. In response, California passed a law against open carry, and Congress passed the Gun Control Act in 1968. Suddenly gun control was a major issue in the country. The National Rifle Association changed at this time from a gun safety organization to a more militant supporter of Second Amendment rights. Serious scholars began taking a more nuanced look at the Second Amendment. Don B. Kates argued that the Second Amendment applied to a personal right to bear arms and was not limited to militias. Sandy Levinson, formerly of Princeton University, agreed with Kates. Laurence Tribe and George Will also supported this position.
In 1976, the District of Columbia passed a strict gun control ordinance. Dick Heller, a DC police officer who carried a gun for his job, was prohibited from having one in his home. Litigation was brought in the District Court, but Judge Emmet G. Sullivan dismissed it. The Court of Appeals reversed and struck down the ordinance. The Supreme Court took the case, and, in 2008, Justice Antonin Scalia wrote for a five-to-four majority opinion upholding the Court of Appeals. Heller v. District of Columbia holds that the Second Amendment protects the right of an individual to bear arms, unconnected to the militia requirement, and the concept of self-defense is embedded in the Second Amendment. Nevertheless, the decision also preserves the concept of gun control. The Heller decision has been hotly debated over the ensuing years.
A 2010 decision by the Supreme Court found that the Second Amendment is incorporated into the 14th Amendment and, therefore, applies to the states. For now, Heller is the law.
Judge Carchman then answered several questions, as follows: Current civil unrest may not bolster the argument for guns for self-defense but it may lead to further gun control; only state law could require the registration of guns; there is a zero chance of a constitutional amendment to clarify issues involving guns; states may control assault rifles; true gun control depends on regulating the availability of guns; current class actions against gun manufacturers raise standing issues and have a tough road ahead with the current Supreme Court; states can regulate 3D printers that may be used to make guns; and the issue of transporting guns from a state with few restrictions into one with many restrictions remains troublesome.
Respectfully submitted,
Robert S. Fraser
Ruth Miller introduced the speaker, Philip Carchman. He has held virtually every judicial position in New Jersey. He graduated from the Wharton School and received his law degree from the University of Pennsylvania Law School. He is retired and shortly will become a member of the Old Guard.
After telling a few humorous stories about giving Zoom talks, Judge Carchman changed the title of his talk to: "The British are Coming ... the Second Amendment and the Right to Bear Arms." What were the British coming for? The guns owned by the colonists and stored collectively in an armory. The king knew that, without guns, the revolution would be stillborn. The talk focused on the Second Amendment, the most enigmatic and, in modern times, controversial of the ten amendments constituting the Bill of Rights. In 1791 when the Second Amendment was ratified, and for almost 150 years thereafter, there was no controversy about it.
What was in the framers' minds when they drafted this 27-word amendment? There is a paucity of information about that. Instead, two issues dominated the debate: slavery and the relationship of the states to the newly formed federal government. The framers looked to English history in formulating the Second Amendment. At this time, there was an obligation to bear arms rather than a right. James II tried gun control by prohibiting Protestants from owning them, but most of his subjects were Protestants. William and Mary reversed the law, and there was a declaration of rights that gave subjects the right to own guns and gave to Parliament the right to regulate arms. From this background, James Madison recognized three principles for arming the public: One, arms were necessary for personal and collective defense; two, militias were preferred to standing armies; and three, the sovereign could not be permitted to confiscate the people's arms. Below is the language upon which the framers decided:
"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."
What is missing in the language of the Second Amendment is any mention of self-defense. In 1792, Congress passed the Militia Act. It was specific as to who could serve, that is, white men under the age of 45, and what kind of arms they needed, but militias failed to provide the arms. Until the end of the Civil War, there were limitations on who could own guns. The 14th Amendment freed enslaved people and granted them citizenship, though they had the right to own guns. Legislation and regulation of arms were left to the states, and southern states prohibited Black men from owning arms. After the Civil War, slave patrols were formed to disarm Black men. The Ku Klux Klan arose, and Negro militias were formed for defense.
The United States Supreme Court then came into play in United States v. Cruikshank. On Easter Sunday in 1873 in Colfax, Louisiana, a white militia attacked a Black militia. Over 200 Black men were killed. Louisiana refused to prosecute anyone, and the federal government charged several members of the white mob. Bill Cruikshank was charged with violation of the 14th Amendment. He was convicted, but the Supreme Court overturned the conviction in a five- to- four decision. The case is best known for the proposition that the Bill of Rights is not incorporated into the 14th Amendment. Only states could grant Black men the right to bear arms. This spikes the argument that individuals have the absolute right to own guns.
Gun control is not a new concept. Public musters required guns to be inspected and accounted for on the public roll. In some states, house-to-house registration of guns took place. Governments had the right to confiscate guns, and the storage of gunpowder was regulated for safety reasons. The 1881 gunfight at the O.K. Corral in Tombstone, Arizona, involved a dispute over a restriction that guns should be checked and not carried openly on the streets.
In Presser v. Illinois, the U. S. Supreme Court took a case involving a parade on the streets of Chicago that included armed marchers. They were arrested for violating an Illinois law prohibiting marchers from carrying arms unless they were part of a state militia. Defendants argued that they were protected by the Second Amendment. The Court upheld the Illinois statute on the rationale that the Second Amendment does not apply to the states.
The 20th century ushered in a new type of criminal. On February 14, 1929, the St. Valentine's Day Massacre took place in Chicago, and the public was outraged. In response, Congress passed the National Firearms Act, which taxed certain firearms and required registration. United States v. Miller is a case challenging the validity of that statute. Miller was arrested for transporting a sawed-off shotgun across state lines. The trial court found that Miller was protected by the Second Amendment and released him. A unanimous Supreme Court reversed upholding the statute on a finding that such a weapon has no connection to a militia and could not be used for the common defense.
Race became the dominant issue in the later 20th century. The period saw the rise of more militant protest groups, such as the Black Panthers. They eschewed non-violence and espoused gun ownership for Black men. In response, California passed a law against open carry, and Congress passed the Gun Control Act in 1968. Suddenly gun control was a major issue in the country. The National Rifle Association changed at this time from a gun safety organization to a more militant supporter of Second Amendment rights. Serious scholars began taking a more nuanced look at the Second Amendment. Don B. Kates argued that the Second Amendment applied to a personal right to bear arms and was not limited to militias. Sandy Levinson, formerly of Princeton University, agreed with Kates. Laurence Tribe and George Will also supported this position.
In 1976, the District of Columbia passed a strict gun control ordinance. Dick Heller, a DC police officer who carried a gun for his job, was prohibited from having one in his home. Litigation was brought in the District Court, but Judge Emmet G. Sullivan dismissed it. The Court of Appeals reversed and struck down the ordinance. The Supreme Court took the case, and, in 2008, Justice Antonin Scalia wrote for a five-to-four majority opinion upholding the Court of Appeals. Heller v. District of Columbia holds that the Second Amendment protects the right of an individual to bear arms, unconnected to the militia requirement, and the concept of self-defense is embedded in the Second Amendment. Nevertheless, the decision also preserves the concept of gun control. The Heller decision has been hotly debated over the ensuing years.
A 2010 decision by the Supreme Court found that the Second Amendment is incorporated into the 14th Amendment and, therefore, applies to the states. For now, Heller is the law.
Judge Carchman then answered several questions, as follows: Current civil unrest may not bolster the argument for guns for self-defense but it may lead to further gun control; only state law could require the registration of guns; there is a zero chance of a constitutional amendment to clarify issues involving guns; states may control assault rifles; true gun control depends on regulating the availability of guns; current class actions against gun manufacturers raise standing issues and have a tough road ahead with the current Supreme Court; states can regulate 3D printers that may be used to make guns; and the issue of transporting guns from a state with few restrictions into one with many restrictions remains troublesome.
Respectfully submitted,
Robert S. Fraser