Thursday, November 10, 2011

My analysis of the McDonald and Heller cases

Supreme Court

The two cases which were chosen for this paper are McDonald vs. Chicago and Heller vs. District of Columbia and both redefined the legal understanding of the Second Amendment and while they both were mostly right there are aspects which were either ignored or misconstrued in all likelihood due to political pressure. In the majority opinion on the Heller case for example the justices flat out contradicted themselves by explaining the historical meaning and basis for the amendment and then, and they explained this was to avoid overturning The United States vs. Miller which held the 1934 National Firearms Act constitutional, upheld the findings in the Miller case in spite of their historical analysis showing its faults.  Both of these cases have and will continue to have a significant impact on the rights of individual citizens in the US to exercise their right to keep and bear arms, something which can only help those who find themselves in the position of needing an effective weapon with which to defend themselves and/or their loved ones. The Chief Justice for both cases was John G. Roberts and he is still in that position today. Likewise President Barrack Obama was the sitting president during both cases.
It is necessary for some background to mention The United States vs. Miller case of 1939 in order to understand the import of these cases as well as their existence. In 1934 the National Firearms Act was passed, with few aware of it, regulating the sale, transfer, and manufacture of certain types of firearms as well as suppressors and requiring a two hundred dollar tax on these items every time they were transferred. At the time this occurred the two hundred dollar tax being levied was the equivalent of over three thousand dollars today clearly making it not only a revenue producing measure but also a deterrent against acquiring these items. When this case was initially tried the NFA was upheld as constitutional, a ruling which was first reversed in appeals and again upheld in the Supreme Court hearing in which no one appeared for the defense and the representatives for the prosecuting team took the interesting tactic of arguing that the specific shotgun in question, using its serial number, was not and never had been part of a military arsenal rather than attempting to argue, falsely, that short barreled shotguns had never been used by any military force(The Oyez Project, United States v. Miller). Interestingly not only does the NFA cover shotguns and suppressors but also automatic weapons which were clearly in use by military forces as early as the Civil War in the form of the Gatling although not as true automatic weapons until World War I and the development of the Maxim machine gun. That said the ruling by these Supreme Court Justices in 1939 upheld the constitutionality of the NFA (The Oyez Project, United States v. Miller) in spite of the fact that two of them were in fact military veterans and even based their ruling on the understanding, clearly stated, that the Second Amendment protected military style firearms. Had this case not turned out in this fashion, it is unlikely that much of the gun control legislation passed since would have occurred without court cases of these types occurring much sooner as this case has been the justification for many of the legal challenges gun control has faced.
In 2008 the Supreme Court heard another case on the Second Amendment, Heller vs. District of Columbia, in which Heller was suing over the city’s refusal to issue him a firearms permit, refusal to allow the registration of any handguns in the District, and the requirement that any firearm in an individual’s home be rendered unable to be used easily by either a trigger lock or disassembly (The Oyez Project, District of Columbia v. Heller). Both the defendant and dissenting opinion on this course attempted to argue, with little basis in fact, that the Second Amendment applied only to the militia and not to an individual and therefore the actions of the District of Columbia were constitutional. Clearly as this was the dissenting opinion the majority ruled that the Second Amendment is in fact an individual right (The Oyez Project, District of Columbia v. Heller).
In McDonald vs. Chicago four Chicago residents filed suit against the city’s prohibition against possessing a handgun in their home without a FOID which city code prohibits in the case of most handguns (The Oyez Project, McDonald v. Chicago). The argument which the petitioners presented to the Supreme Court was that the city ordinances violated their 2nd and 14th amendment rights, an argument which was upheld by a majority of the supreme court justices although predictably not Justice Stevens since he is of the belief that the 2nd amendment only pertains to a militia not an individual. Once again in this case while the Justices did incorporate the 2nd amendment into the 14th therefore requiring states and not just the federal government to uphold the 2nd amendment, they yet again refused to overturn the Miller case (The Oyez Project, McDonald v. Chicago) but hopefully this will change sometime in my lifetime.
As to how these decisions affect society today there are both obvious and subtle effects which have taken place as a result of how these cases turned out. For example without the Miller case being decided in the way in which it was it is unlikely that the McDonald and Heller cases would have even occurred since it is unlikely that gun control would be as prevalent today had that ruling not determined that the NFA was constitutional because it didn’t do exactly what it was written to do, that still doesn’t make much sense. It is likely based on CDC and FBI crime statistics that there would be significantly fewer crimes in which the victim was unable to defend themselves were gun control not so prevalent, something which is already being noticed to a small degree in the District of Columbia to a limited degree since the ruling in Heller. With the Heller case ruling that the 2nd amendment protects an ‘individual’ right to keep and bear arms it is likely that there will be many more lawsuits such as the McDonald case in the years to come especially with the outcome of the McDonald case being the incorporation of that individual right. It is likely that as a result of these cases that many state and federal gun control measures will be invalidated but in the same token it is unlike that all will be until there are judges on the bench, enough to make up a majority, who are willing to overturn the Miller case. It is also just a matter of time until someone from Montana ends up in front of the Supreme Court in a case that will have to decide rather commerce regulation or the 2nd amendment takes precedence. The less regulation placed on honest citizen’s ability to own and use firearms, especially for self defense and practice, the safer and freer we all will be.


The Oyez Project, District of Columbia v. Heller , 554 U.S. ___ (2008) 

(last visited Sunday, July 17, 2011).

The Oyez Project, McDonald v. Chicago , 561 U.S. ___ (2010) 

(last visited Sunday, July 17, 2011).

The Oyez Project, United States v. Miller , 307 U.S. 174 (1939) 

(last visited Sunday, July 17, 2011). 


  1. Very nice! keep 'em coming!! whats your opinion? Do you think if they lighten-up on Gun Control laws and regulations there won't be as much of an issue with a black market for gun's?

  2. Thanks and more than likely that is something that would decrease if it follows the same pattern as other products which have been declared contraband over the years and then deregulated to one extent or another.

  3. There will always be a need for Black Market firearms as long as criminals exist. Those that cannot get access to firearms through legitimate means will always resort to illegitimate. It is what makes gun control such a farce and more a factor of people control than anything else.

  4. I dispute Oyez.

    First – Oyez poses the question “Does the Second Amendment protect an individual's right to keep and bear arms?” Then it answers with “No” (based, I assume on the decision in the MILLER case).
    In fact, MILLER had nothing whatsoever to do with the question of the individual right to “keep and bear arms”, as guaranteed in the 2 A. vis-a-vis the later invention of the so-called “collective right” of the militia, or interpreting the 2 A. as somehow a “state's right”, making the 2 A. unique, as something other than an individual right.

    Certainly, Miller implies that the RKBA is an individual right, and attempted to determine if a particular type of weapon was of a nature to be useful for military purposes, and therefore the sort of weapon whose possession and carry by an individual was a Constitutional right.

    Second – Oyez says “the Court reasoned that because the possession of a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.”

    The Court did no such “reasoning”, nor did it offer any such conclusion.

    Justice McReynolds wrote in the majority opinion of the case:

    "It is NOT WITHIN JUDICIAL NOTICE notice that a shotgun having a barrel of less than 18 inches in length is any part of the ordinary military equipment or that its use could contribute to the common defense."

    As you noted, only two of the Justices on the Court had any Military experience, and that was brief, limited service, on American soil during the short period of American involvement in WWI. Neither was a veteran of the trench warfare in the fields of France. Justice McReynolds stated that the Court had no “judicial notice” on what it considered to be the central question in the case --- in other words, they did not have background knowledge concerning the fact that such weapons, called “trench guns”, were indeed used for military purposes, and therefore would have “some reasonable relationship to the preservation or efficiency of a well-regulated militia . . .”, and consequentially be protected by 2 A. in the framework the Court used to determine the applicability of the Amendment.

    In addition, the Court received no information on the fact of such military application of the type of weapon in the case. You noted that the Government argued, very strangely, that the particular shotgun in the case, by its serial number, had never been in any military arsenal. Why that should be thought at all pertinent to the case by any lawyer is a mystery. Flimsy as it was, such an argument was sufficient, since there was no argument at all offered by the lawyer for Miller, since he was not paid, and did not appear.

    McReynold's opinion reflects the admitted ignorance of the Court on (to them, at least) the central question of the case:
    "IN THE ABSENCE OF EVIDENCE tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length,' which is the subject of regulation and taxation by the National Firearms Act of June 26, 1934, has some reasonable relationship to the preservation or efficiency of a well-regulated militia, IT CANNOT BE SAID the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument, or that the statute violates such constitutional provision."

    In light of the lack of background knowledge and arguments for the Court to consider on the applicability of the Second Amendment to the weapon in the case, McReynolds phrased the opinion in tentative terms, and wisely kicked the question back to the lower court for further argument and exploration:

    “The cause will be remanded for further proceedings”.

    The “further proceedings” never happened. Miller (whose moral qualifications to be a member of the Militia had not been challenged, as far as I know) was murdered. His criminal partner and fellow defendant in the case pleaded guilty.

    1. Very well said Anon and i actually agree with all of your points. If you are interested hop over to the forum at as i suspect that you would have quite a bit to add to the blog.