Eckert v. City of Philadelphia, 329 F. Supp. 845 (E.D. Pa. 1971)

Charles F. Eckert, pro se.

John Mattioni, Asst. City Solicitor, for defendant.

MASTERSON, District Judge.

Plaintiff has petitioned that this Court enjoin the City of Philadelphia from continuing to enforce various sections of its municipal ordinance which regulates the purchase and transfer of firearms. See Philadelphia Code, § 10-814, approved March 15, 1965. Plaintiff complains that the City, by enforcing this ordinance, is violating his federal constitutional right to keep and bear arms. The City of Philadelphia has filed a motion to dismiss, to which the plaintiff has responded, asserting, inter alia, that the plaintiff has failed to state a cause of action upon which relief can be granted.

We have decided to grant the defendant's motion to dismiss. The crux of the plaintiff's complaint is that the City's regulation of the purchase and transfer of firearms infringes his right to keep and bear arms, a right which, the plaintiff asserts, is absolute and guaranteed him under the Second Amendment of the Federal Constitution. In this interpretation of the Second Amendment the plaintiff is gravely mistaken. The right to keep and bear arms is not a right conferred on the people by the Federal Constitution, but rather, the only function of the Second Amendment is to prevent the federal government, and the federal government only, from infringing that right. United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1896); Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770, 63 S. Ct. 1431, 87 L. Ed. 1718 (1943), *846 rehearing denied, 324 U.S. 889, 65 S. Ct. 1010, 89 L. Ed. 1437 (1945). We can find no authority departing from this interpretation of the Second Amendment.

Since it is clear that the plaintiff has no absolute right to be free of state or municipal regulation concerning the keeping and bearing of arms, he has failed to state a claim upon which relief can be granted.