Love v. Pepersack
In Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), the Court of Appeals for the Fourth Circuit rejected a claim that constitutional rights were violated when state troopers denied an application for a handgun by plaintiff Ms. Love.
The sweeping language of the ruling is cited by opponents of an individual Second Amendment right:
- The Second Amendment does not apply to the states. Presser v. Illinois, 116 U.S. 252, 29 L. Ed. 615, 6 S. Ct. 580 (1886); United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876). Moreover, even as against federal regulation, the amendment does not confer an absolute individual right to bear any type of firearm. In 1939, the Supreme Court held that the federal statute prohibiting possession of a sawed-off shotgun was constitutional, because the defendant had not shown that his possession of such a gun bore a "reasonable relationship to the preservation or efficiency of a well regulated militia." United States v. Miller, 307 U.S. 174, 178, 83 L. Ed. 1206, 59 S. Ct. 816 (1939). Since then, the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right. This court's precedent is United States v. Johnson, 497 F.2d 548 (4th Cir. 1974). In Johnson, the defendant challenged the constitutionality of the federal statute prohibiting possession of firearms by convicted felons. We were not impressed ( id. at 550):
- Johnson's argument that [18 U.S.C. § ] 922(g) is an unconstitutional violation of his Second Amendment right to keep and bear arms is not new. See, e.g., United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939). The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a "reasonable relationship to the preservation or efficiency of a well-regulated militia." 307 U.S. at 178, 59 S. Ct. at 818. Johnson presents no evidence that section 922(g) in any way affects the maintenance of a well regulated militia.
Two judges of the Fourth Circuit concluded that:
- Love has likewise not identified how her possession of a handgun will preserve or insure the effectiveness of the militia.
Judge Michael Luttig concurred in a terse statement implying his disapproval with a precedent that he felt controlled the outcome.