Federal Case Law

This site is only an information site on the law in Virginia. The following information is not intended as legal advice and should not be relied upon as accurate or current. Consult an Attorney, or the Commonwealth's Attorney's Office or the Office of the Attorney General.
 

There is very little if any pure modern federal case law governing firearms and self-defense. Most case law is a federal district court or a federal appeals court reviewing a state case under a due process clause for  "Habeas relief". As an example, the following case from the 2nd Circuit Court of Appeals reviews a New York State Supreme Court case on the right to self-defense and whether the defendant had a duty to retreat under New York Law. This case would/may not be applicable to other courts or states . The case is Davis v. Strack, 270 F.3d 111 (2d Cir. 2001).

The United States Supreme Court overturned the 9th Circuit Court of Appeals and let stand the California State Court verdict of murder in which a wife shot her husband claiming battered wife syndrome. The case is Raymond L. Middleton,Warden v. McNeil, 541 U.S. 433 (2004).

1)  Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007)

"We conclude that the Second Amendment protects an individual right to keep and bear arms...the bar on carrying a pistol within the home amounts to a complete prohibition on the lawful use of a handgun for self-defense. As such, we hold it unconstitutional. "

2) Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002)

3)  United States v. Timothy Emerson, 270 F.3d 203 (5th Cir. 2001)
 

"We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment.  We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller. "

 
"She is wrong on both counts. The Second Amendment does not apply to the states.  Presser v. Illinois ,  116 U.S. 252  (1886);  United States v. Cruikshank ,  92 U.S. 542  (1876). 5    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  (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):"

Historic Note: This case was decided with only the government's legal arguments. The apellees were not in attendance. " No appearance for appellees". With only one side presenting arguments,  the court  issued the following opinion:
 

"In 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. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158."

See Also: The Historical Inaccuracies of the United States Supreme Court in United States v. Miller, 307 U.S. 174 (1939)

6) UNITED STATES v. SCHWIMMER, 279 U.S. 644 (1929)

"Chief Justice White, said that 'the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need. ...'Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defense detracts from the strength and safety of the government."

7) ROBERTSON v. BALDWIN, 165 U.S. 275 (1897)

"Thus, the freedom of speech and of the press ( article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons;"

8) Terry v. Ohio, 392 U.S. 1 (1968)  A "Terry Stop"
 

" We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. [p*31] Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken."

See Also : HiibeL v. Sixth Judicial District Court Of Nevada, Humboldt County, et al., 542 U.S. 177 (2004).

Petitioner Hiibel was arrested and convicted in a Nevada court for refusing to identify himself to a police officer during an investigative stop involving a reported assault. Nevada's "stop and identify" statute requires a person detained by an officer under suspicious circumstances to identify himself. The state intermediate appellate court affirmed, rejecting Hiibel's argument that the state law's application to his case violated the Fourth and Fifth Amendments. The Nevada Supreme Court affirmed.

Held: "Petitioner's conviction does not violate his Fourth Amendment rights or the Fifth Amendment's prohibition on self-incrimination."
 

See Also:  Florida v. J.L., 529 U.S. 266 (2000).

"A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position.

  Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. See 392 U.S., at 30. But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms."

9)  Caron v. United States 524 US 308 (1998).  Restoration of Firearm Rights by the States must cover all firearms under Federal Law.
 
 
 

"A previous conviction is a predicate for neither the substantive offense nor the sentence enhancement if the offender has had his civil rights restored, "unless such ... restoration of civil rights expressly provides that the person may not ... possess ... firearms." § 921(a)(20). This is the so-called "unless clause" we now must interpret. As the ellipses suggest, the statute is more complex, but the phrase as quoted presents the issue for our decision.The parties, reflecting a similar division among various Courts of Appeals, disagree over the interpretation of the unless clause in the following circumstance. What if the State restoring the offender's rights forbids possession of some firearms, say pistols, but not others, say rifles? In one sense, he "may not ... possess ... firearms" under the unless clause because the ban on specified weapons is a ban on "firearms." In another sense, he can possess firearms under the unless clause because the state ban is not absolute. Compare, e. g., United States v. Estrella, 104 F.3d 3, 8 (CA1) (adopting former reading), cert. denied, 521 U. S. 1110 (1997), and United States v. Driscoll, 970 F.2d 1472, 14801481 (CA6 1992) (same), cert. denied, 506 U. S. 1083 (1993), with United States v. Qualls, 140 F.3d 824, 826 (CA9 1998) (en banc) (intermediate position), and United States v. Shoemaker, 2 F.3d 53, 55-56 (CA4 1993) (same), cert. denied, 510 U. S. 1047 (1994). The Government contends the class of criminals who "may not ... possess ... firearms" includes those forbidden to have some guns but not others. On this reading, the restoration of rights is of no effect here, the previous offenses are chargeable, and petitioner's sentence must be enhanced. On appeal, the Government's position prevailed in the Court of Appeals for the First Circuit, and we now affirm its judgment."

"The petitioners here object to being pressed into federal service,  and contend that congressional action compelling state officers to execute  federal laws is unconstitutional. Because there is no constitutional text  speaking to this precise question, the answer to the CLEOs' challenge must  be sought in historical understanding and practice, in the structure of  the Constitution, and in the jurisprudence of this Court. We treat those  three sources, in that order, in this and the next two sections of this  opinion.... Although we had no occasion to pass upon the subject in Brown,  later opinions of ours have made clear that the Federal Government may  not compel the States to implement, by legislation or executive action,  federal regulatory programs.... Today we hold that Congress cannot  circumvent that prohibition by conscripting the State's officers directly.  The Federal Government may neither issue directives requiring the States  to address particular problems, nor command the States' officers, or those  of their political subdivisions, to administer or enforce a federal regulatory  program. It matters not whether policymaking is involved, and no case by  case weighing of the burdens or benefits is necessary; such commands are  fundamentally incompatible with our constitutional system of dual sovereignty.  Accordingly, the judgment of the Court of Appeals for the Ninth Circuit  is reversed."

House of Representatives Document on the Legislative History of 10 USC CHAPTER 13 - THE MILITIA
 
 

 See: PERPICH v. DEPARTMENT OF DEFENSE, 496 U.S. 334 (1990) (Origin of National Guard- The Dick Act)

The Military Laws of the United States Relating to the Army, Volunteers, Militia and to Bounty Lands and Pensions From the Foundations of the Government to the Year 1863.

WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT- USDOJ , August 24, 2004