Judge Holds Second Amendment “Applies Only to the Federal Government.”

July 15th, 2015

In Harris v. Wenzel, 2015 WL 4092408, *4 , M.D.Pa. , (NO. 4:15-CV-00135), Judge Matthew W. Brann dismissed a pro se complaint that raised a host of civil rights violations arising from a traffic stop by a Pennsylvania State Trooper.  In his complaint, the plaintiff cited a violation of his Second Amendment rights when the police “[r]epeatedly [lied] to Plaintiff as to [the] validity of [his] PA Concealed Weapons Permit.” (ECF No 1-1, ¶ 10). The court correctly dismissed this claim, because the plaintiff “fail[ed] to state any alleged violation of his constitutional rights in this respect.” But in a footnote, Judge Brann states that the Second Amendment “Applies only to the Federal Government.”

Notably, Mr. Harris alleges that State actors violated his Second Amendment rights, a proposition that is invalid as a matter of law. In that respect, the Supreme Court has continually “reaffirmed that the Second Amendment applies only to the Federal Government.” District of Columbia v. Heller, 554 U.S. 570, 620 n. 23 (2008) (citing Presser v. Illinois, 116 U.S. 252, 265 (1886); Miller v. Texas, 153 U.S. 535, 538 (1894)). Therefore, it is impossible for Mr. Harris to state a claim for Second Amendment violations against the Defendants, and any amendment to the complaint would be futile. Consequently, this claim is dismissed with prejudice.

Now before you jump all over Judge Brann for stopping in the U.S. Reports at Heller, and not reading onto McDonald, think about what he is saying. The Second Amendment, standing by itself does not apply to the State Governments. Only by virtue of the Fourteenth Amendment (the Due Process Clause, or in my opinion the Privileges or Immunities Clause) is the right to keep and bear arms extended to the states. So yes, the court is technically correct. When pleading, the pro se plaintiff should have cited the 2nd and 14th Amendments, rather than the 2nd Amendment alone.

However, it was unnecessary for the court to make such a remark about a pro se pleading, which should have been read leniently. It was enough to find the claim was without merit (and it was).

H/T Dave Kopel and others