Summary

This section will discuss a small number of cases from state supreme courts where comments or decisions were made while taking the Second Amendment into account. Many states have their own firearms provisions in their constitutions which of course would affect the ruling of a case. Those cases are not discussed here. For a more detailed analysis of state supreme court decisions see Halbrook, Stephen P., That Every Man Be Armed: The Evolution of a Constitutional Right, University of New Mexico Press, 1984. All material (text and quotes) presented below are from Halbrook's book.

Early State Supreme Court Decisions

Although the Georgia constitution had no right-to-bear-arms provision prior to 1861, the classic case of Nunn v. State in 1846 had declared invalid a statutory prohibition on breast pistols on the basis of the guarantees of the U.S. Constitution:

The language of the second amendment is broad enough to embrace both Federal and state governments-nor is there anything in its terms which restricts its meaning...Is this a right reserved to the State or to themselves? Is it not an unalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution and void, which contravenes this right...

In 1850, while holding that a statute prohibiting the carrying of concealed weapons was not in violation of the Second Amendment, the Louisiana Supreme Court in State v. Chandler reasoned that the right to carry arms openly "placed men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defense of themselves, if necessary, and of their country..."

Early Twentieth Century State Supreme Court Decisions

The Supreme Court of North Carolina in State v. Kerner (1921) declared that the right to keep and bear arms was "a sacred right based upon the experience of the ages in order that the people may be accustomed to bear arms and ready to use them for protection of their liberties or their country when occasion serves."

It is true that the invention of guns with a carrying range of probably 100 miles, submarines, deadly gases, and of airplanes carrying bombs and other devices, have much reduced the importance of the pistol in warfare except at close range. But the ordinary private citizen, whose right to carry arms cannot be infringed upon, is not likely to purchase these expensive and most modern devices just named. To him the rifle, the musket, the shotgun, and the pistol are about the only arms which he could be expected to "bear," and his right to do this is that which is guaranteed by the Constitution.

Not dependent on the select militia at all, the right was held by the court to exist, in fundamental part, for defense against the militia: "In our own state, in 1870, when Kirk's militia was turned loose and the writ of habeas corpus was suspended, it would have been fatal if our people have been deprived of the right to bear arms and had been unable to oppose an effective front to the usurpation."

Conscious of the need of the poor and the unpopular "to acquire and retain a practical knowledge of the use of fire arms," the court stated:

This is not an idle or an obsolete guaranty, for there are still localities, not necessary to mention, where great corporations, under the guise of detective agents or police forces, terrorize their employees by armed force. If the people are forbidden to carry the only arms within their means, among them pistols, they will be completely at the mercy of these plutocratic organizations. Should there be a mob, is it possible the law-abiding citizens could not assemble with their pistols carried openly and protect their persons and their property from unlawful violence without going before an official and obtaining license and giving bond?"

The Michigan Supreme Court in People v. Brown (1931) upheld the sentence of life imprisonment of a recidivist felon convicted of possessing a blackjack. Reviewing the nature of the historical militia as being "composed of all able-bodied men," the Michigan Supreme Court rejected (a) the view that individuals may bear only such arms as are customary in the militia and (b) the extreme view...that the Constitution only protects military organizations. The court reasoned:

When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens..., is practically extinct and has been superseded by the National Guard and reserve organizations...The historical test would render the constitutional provision lifeless.

State Court Decisions since World War II

Not surprisingly, it was the courts of New York, home of the Sullivan Law, which provided the occasion for further exposition of the amendment. In Moore v. Gallup (1943) an admittedly law-abiding citizen was denied a license to carry a concealed weapon. The court upheld the denial despite the Second Amendment (which the court held was inapplicable to the states).

Similarly, the New York case of Application of Cassidy (1944) declared that the Second Amendment "does not grant a license to carry arms".

In sharp contrast, the Municipal Court of the City of New York, Borough of Queens, in Hutchison v. Rosetti (1960) ordered the police to return a hunting rifle to one who had used it to defend himself against an angry and prejudiced mob. "Passing for the moment that the law, as a matter of broad policy, frowns on forfeiture, there is the constitutional guarantee of the right of the individual to bear arms. Amendments Art. II."

A...striking erosion of the right to possess arms was exemplified in the New Jersey case of Burton v. Sills (1968). It originated when members of sportsman clubs and gun dealers brought an action to declare unconstitutional the state's gun-control law, which imposed restrictive requirements. Conjuring up an image of "political assassinations, killings of enforcement officers, and snipings during riots," the court expressed exaggerated fears of a revolution. The New Jersey Supreme Court restricted the definition of militia to "the active, organized militias of the states," that is, the National Guard. The court's very use of these adjectives to modify the word "militia" ignores the constitutional militia comprised of all persons capable of bearing arms. The Burton opinion simply fails to provide scholarly, historical, and analytical treatment of the subject, as indeed primarily only the antebellum state opinions do provide.

Some of these opinions, that is, the ones which burden law-abiding citizens in the exercise of their right to keep and bear arms, appear to be based on misreading of nineteenth-century U.S. Supreme Court cases as well as of Miller; they ignore the scholarly and extensive treatments given the topic by state courts from earliest times until the Miller era, and they seem totally unaware that the framers of the Fourteenth Amendment agreed on the incorporation of the Second Amendment. Even so, negative treatment of the right to keep and bear arms by state courts has been of relatively short duration, while positive treatment has existed for one hundred and fifty years and thereby constitutes a more enduring body of common law and constitutional interpretation.