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Copyright: This document is part of the court record in the matter uf US v. Timothy Joe Emerson, 5th Circuit, US Court of Appeals, 1999 Session.

Index

Argument

    I. The plain text and legislative history of the Second Amendment demonstrate that the Amendment protects only the right to "bear Arms" for the purpose of service in the "Militia," and does not prohibit Congress from restricting firearm ownership unrelated to militia service.
     
      A. The framers of the Second Amendment understood the phrase"bear Arms" to mean possess weapons for military use.
       
      B. The "well regulated Militia" clause of the Second Amendmentshows that the Amendment establishes a "right to keep and bear Arms" for use in the militia.
       
      C. James Madison's original draft of the Second Amendment and theFirst Congress' revisions to that draft confirm that the Amendment's framers intended to protect only possession of arms related to militia service.
       
      D. The debates surrounding proposal of the Second Amendment show that the framers of the Amendment intended to prohibit the federal government from disarming the states' militia and manifested no intention to protect individual firearm ownership unrelated to the militia.
       
      E. The militia protected by the Second Amendment were quasi-governmental bodies organized by the states, not individual citizens or isolated bands of disaffected insurrectionists.
       
      F. In crafting the Second Amendment to ensure the vitality of the militia and protect against standing armies, the framers of the Amendment built on the precedent of the English Bill of Rights.
       

    II. Because 18 U.S.C. § 922(g)(8) has no effect on the states' militia, it does not violate the Second Amendment.

Footnotes

Appendix A - List of Amici

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ARGUMENT

The Second Amendment (the "Amendment") reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In United States v. Miller, a unanimous Supreme Court held that the Amendment protects only conduct bearing "some reasonable relationship to the preservation or efficiency of a well-regulated militia." 307 U.S. 174, 178 (1939).

The District Court, however, declined to read Miller as controlling this case. United States v. Emerson, Criminal No. 6:98-CR-103-C, slip. op. at 21-22 (N.D. Tex. April 7, 1999) (hereinafter, "Slip. Op."). Relying instead on the work of a small number of academic "individual rights theorists . . . [who] argue that the amendment protects an individual right inherent in the concept of ordered liberty,"/1/ id. at 5, the District Court invalidated 18 U.S.C. § 922(g)(8) (the "Statute") without any finding that the Statute interferes with the operation of states' militia. This holding was erroneous.

The Second Amendment is about the allocation of military force. Those who framed and ratified it intended to prevent the new central government from disarming the states' militia. Because the Statute has no effect on the militia, it does not violate the Second Amendment.

    I. The plain text and legislative history of the Second Amendment demonstrate that the Amendment protects only the right to "bear Arms" for the purpose of service in the "Militia," and does not prohibit Congress from restricting firearm ownership unrelated to militia service.

The District Court holding is contrary to the plain text and legislative history of the Second Amendment. Following common usage, the framers of the Second Amendment used the phrase "bear Arms" to refer to possession of weapons for military use. The Amendment further specifies that its purpose is to protect the states' "well regulated Militia."

The legislative history of the Amendment confirms this reading. James Madison's first draft of the Amendment was expressly limited to arms related to "military service"; Congress' revisions to Madison's draft focused the Amendment still more sharply on protecting the militia; and debate surrounding the Amendment concerned not "an individual right implicit in ordered liberty," Slip. Op. at 5, but rather ensuring that states would have armed militia available as a counterweight to any standing army established by the new federal government.

The District Court claims that "[i]f the amendment consisted solely of its independent clause, 'the right of the people to keep and bear Arms, shall not be infringed,' then there would be no question whether the right is individual in nature." Id. at 6. That claim is deeply anachronistic; only a modern reader could understand the phrase "bear Arms" in the Second Amendment as referring to individual gun ownership unrelated to military use.

The best evidence for the Second Amendment meaning of "bear Arms" is in the original draft of the Amendment proposed in the First Congress by James Madison: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person." Creating the Bill of Rights: The Documentary Record from the First Federal Congress 12 (Helen E. Veit, Kenneth R. Bowling & Charlene Bangs Bickford eds. 1991) (hereinafter, "Documentary Record"). In the last clause of this version (the conscientious objector provision), Madison clearly used the phrase "bearing arms" to refer solely to the possession of weapons for military use. It is implausible to contend, as the District Court implicitly does, that virtually the same phrase "bear arms" should have a different, much broader meaning elsewhere in the very same sentence.

Madison's use of the phrase "bear arms" to refer to military activities is echoed in other contemporary usages. See 6 Sources and Documents of United States Constitutions 345 (William F. Swindler ed. 1976) (reprinting New Hampshire Constitution of 1784: "No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent."); 1 The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, at 335 (Jonathan Elliott ed., 2d ed. 1891) (photo reprint, William S. Hein & Co. 1996) (hereinafter, "Elliott's Debates") (reprinting constitutional amendment proposed by Rhode Island's 1790 ratifying convention: "That the people have a right to keep and bear arms; . . . That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.").

Similarly, the Declaration of Independence charged King George with forcing captive Americans to "bear arms against their country." 1 id. at 62. Searching a Library of Congress database containing all official records of debates in the Continental and U.S. Congresses between 1774 and 1821 reveals 30 uses of the phrase "bear arms" or "bearing arms" (other than in discussing the proposed Second Amendment); in every single one of these uses, the phrase has an unambiguously military meaning. A Century of Lawmaking (visited July 29, 1999) (http://lcweb2.loc.gov/cgi-bin/query). The Continental Congress, for example, approved a prisoner exchange with the British conditioned on the returned prisoners being forbidden to "bear arms" for a specified period, id. (reprinting Journal of the Continental Congress, Tuesday, Nov. 7, 1780, page 1030), and the Twelfth Congress debated legislation concerning prisoners taken "whilst voluntarily bearing arms in the service of Great Britain," id. (reprinting Journal of the Senate, Wednesday, Feb. 17, 1813, page 264).

These usages were standard at the time the Second Amendment was adopted. The Oxford English Dictionary defines "to bear arms" as meaning "to serve as a soldier, do military service, fight." 1 OED 634 (J.A. Simpson & E.S.C. Weiner eds., 2nd ed. 1989) (hereinafter, "OED"). It defines "to bear arms against" as meaning "to be engaged in hostilities with." 2 id. at 21. As an exemplary use of the phrase in 1769, the OED gives "An ample pardon . . . to all who had born arms against him," and the exemplary use from 1609 is "He bare arms, and made weir against the king." Id; see also Garry Wills, To Keep and Bear Arms, supra, (tracing etymology of phrase bear arms and concluding that dominant meaning is military) ("To bear arms is such a synonym for waging war that Shakespeare can call a just war 'just- borne arms' and a civil war 'self-borne arms'").

The word "Arms" itself has a primarily military connotation. According to the OED, the oldest established meaning of "arms" (other than as the plural of "arm," meaning limb, and the now obsolete meaning of "armour, mail"), is "[i]nstruments of offence used in war; weapons." 1 OED, supra, at 634. The OED quotes a 1794 dictionary: "By arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, etc. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive on special occasions." Id. (emphasis in original).
Accordingly, nineteenth-century judges had no trouble understanding that "[t]he phrase 'bear arms' . . . has a military sense and no other . . . . A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day for forty years, and, yet, it would never be said of him, that he had borne arms . . . ." Aymette v. State, 21 Tenn. 154, 161 (1840) (interpreting Tennessee Constitution) (emphasis in original); see also English v. State, 35 Tex. 473, 476 (1872) ("The word 'arms' in the connection we find it in the Constitution of the United States refers to the arms of a militiaman or soldier, and the word is used in its military sense."); Hill v. Georgia, 53 Ga. 472, 475 (1874) ("the language of the constitution of this state as well as that of the United States guarantees only the right to keep and bear the 'arms' necessary for a militiaman"); State v. Workman, 35 W. Va. 367, 373 (1891) ("in regard to the kind of arms protected by the [Second A]mendment, it must be held to refer to weapons of warfare to be used by the militia"); City of Salina v. Blaksly, 72 Kan. 230, 233 (1905) (both U.S. and Kansas Constitutions "appl[y] only to the right to bear arms as a member of the state militia, or some other military organization provided by law"); Ex parte Thomas, 21 Okla. 770 (1908) (interpreting Oklahoma Constitution) ("As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defense, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare"); In re Rameriz, 193 Cal. 633, 651-52 (1924) ("An examination of the numerous authorities in various states will show that the right to keep and bear arms as guaranteed by a state constitutional provision similar to the federal amendment refers only to the bearing of arms by the citizens in defense of a common cause"); cf. Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes 497 (1873) (Second Amendment "protects only the right to 'keep' such 'arms' as are used for purposes of war . . . since such, only, are properly known by the name of 'arms;' and such, only, are adapted to promote 'the security of a free State.' In like manner, the right to 'bear' arms refers merely to the military way of using them. . . .); Lucilius Emery, The Constitutional Right to Keep and Bear Arms, 28 Harv. L. Rev. 473, 476 (1915) ("The single individual or the unorganized crowd, in carrying weapons, is not spoken of or thought of as 'bearing arms.'")/2/
    B. The "well regulated Militia" clause of the Second Amendment shows that the Amendment establishes a "right to keep and bear Arms" for use in the militia.

Even if the Bear Arms Clause,/3/ standing by itself, could be read as establishing a broad right to firearm possession unrelated to militia service, the Second Amendment as the framers actually adopted it cannot be so read. "With obvious purpose to assure the continuation and render possible the effectiveness of such forces [i.e., the states' militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view." Miller, 307 U.S. at 178.

No court has ever held that the Well Regulated Militia Clause has any effect independent of the Bear Arms Clause. Without an independent meaning, the Well Regulated Militia Clause must be read to qualify and elaborate the Bear Arms Clause. To do otherwise— as the District Court did— would be to render the Well Regulated Militia Clause "mere surplusage." Marbury v. Madison, 5 U.S. 137, 174 (1803). As the Supreme Court of Georgia put it, interpreting an analogous state constitutional provision: "[T]he object of the clause is declared to be to secure to the state a well regulated militia. Has this declaration no significance? Is the clause to be interpreted without reference to it? On the contrary, by the well settled rules for the interpretation of laws, as well as by the dictates of common sense, the object and intent of the law is the prime key to its meaning." Hill v. Georgia, 53 Ga. at 476. In the District Court's reading of the Amendment, by contrast, the Well Regulated Militia Clause has no effect or purpose.

    C. James Madison's original draft of the Second Amendment and the First Congress' revisions to that draft confirm that the Amendment's framers intended to protect only possession of arms related to militia service.

The drafting history of the Second Amendment confirms that its framers sought only to create a right to "bear Arms" in connection with the states' "well regulated Militia." Madison's initial draft ("The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.") contained not only early versions of the Well Regulated Militia Clause and the Bear Arms Clause, but also a third clause concerning conscientious objectors. Documentary Record, supra, at 12. This third clause, and the entire sentence as Madison wrote it, is limited to the bearing of arms for "military service." If the Second Amendment had been adopted as originally drafted by Madison, its scope would unmistakably be limited to the possession of weapons for use in the militia.

As it happened, Congress removed the conscientious objector clause, but this deletion should not change our understanding of the remaining language. Those who objected to the clause argued that allowing federal judges to define conscientious objector status would usurp the states' prerogative to determine militia eligibility. Id. at 182-84. Virtually all of the recorded debate in the First Congress on what became the Second Amendment concerned the conscientious objector clause, and no participant in the debate expressed any concern about individuals being denied the right to gun ownership.

Besides eliminating the conscientious objector clause, Congress made other revisions to Madison's draft; each sharpened the Amendment's focus on assuring the states' ability to maintain militia. First, Congress pushed the Well Regulated Militia Clause to the front of the sentence; this deliberate rewriting shows Congress' intention that the Amendment prevent threats to the militia, and not to arms ownership generally./4/ Second, Congress deleted "well armed" from the Well Regulated Militia Clause; the phrase was redundant, because the "Arms" protected by the Amendment were precisely those used by the militia. Third, Congress replaced "country" with "State" in the Well Regulated Militia Clause, showing the concern of the drafters to protect states against an overweening federal government./5/

    D. The debates surrounding proposal of the Second Amendment show that the framers of the Amendment intended to prohibit the federal government from disarming the states' militia and manifested no intention to protect individual firearm ownership unrelated to the militia.

The Second Amendment, like the rest of the Bill of Rights, was designed to address concerns voiced in the debates over ratification of the Constitution in 1787 and 1788. Throughout these debates, Anti-Federalists charged that the proposed Constitution would permit the establishment of "standing armies in time of peace." 2 The Complete Anti-Federalist 375 (Herbert J. Storing ed., 1981) (reprinting Brutus' Essay II, which appeared in the New York Journal of November 1, 1787) (hereinafter, "Complete Anti-Federalist"). Anti-Federalists feared that a would-be tyrant might use a standing army— a corps of full-time, professional soldiers in the pay of the President— to impose his will on the nation by force. See, e.g., 3 Id. at 164 ("A standing army ... may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes, and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.") (reprinting The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania To Their Constituents); 2 Id. at 58 (standing army is "engine of arbitrary power") (statement by Luther Martin to Maryland General Assembly); 1 Elliot's Debates, supra, at 380 ("once a standing army is established in any country, the people lose their liberty") (statement of George Mason at Virginia ratifying convention).

Anti-Federalists sought to lessen this threat of tyranny by ensuring that organized state militia would be available as a counterweight to any federal standing army. To this end, they demanded a constitutional right to bear arms. See, e.g., 2 Complete Anti-Federalist, supra, at 341 (reprinting The Federal Farmer's Letter XVIII) ("the Constitution ought to secure a genuine and guard against a select militia by providing that the militia shall always be kept well organized, armed and disciplined"); cf. The Federalist No. 46, at 299 (James Madison) (Clinton Rossiter ed., 1961) ("Let a regular army, fully equal to the resources of the country, be formed . . . still, it would not be going too far to say that the State governments with the people on their side would be able to repel the danger."). Five state ratifying conventions put these demands into formal proposals for constitutional amendments:

    New York: "That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, isthe proper, natural and safe defense of a free state." 1 Elliot's Debates, supra, at 328.
    North Carolina: "That the people have a right to keep and bear arms; thatwell regulated militia, composed of the body of the people, trained to arms, isthe proper, natural and safe defense of a free state . . . ." 4 Id. at 244.
    Rhode Island: "That the people have a right to keep and bear arms; that awell-regulated militia, including the body of the people capable of bearingarms, is the proper, natural, and safe defence of free state; . . . that standingarmies, in time of peace, are dangerous to liberty, and ought not to be keptup, except in cases of necessity . . . . That any person religiously scrupulousof bearing arms ought to be exempted upon payment of an equivalent toemploy another to bear arms in his stead." 1 Id. at 335.
    Virginia: "That the people have a right to keep and bear arms; that a wellregulated Militia composed of the body of the people trained to arms is theproper, natural and safe defence of a free State. That standing armies in timeof peace are dangerous to liberty, and therefore ought to be avoided, as far as as the circumstances and protection of the Community will admit." 3 Id. at 659. New Hampshire: "[N]o standing army shall be kept up in time of peace ...Congress shall never disarm any citizen, unless such as are or have been inactual rebellion." 1 Id. at 326.

Textually, only New Hampshire's proposal suggests a right to ownership of arms broader than that connected to military service. /6/ Madison and the First Congress deliberately avoided this formulation, instead choosing to track the other four proposals, which explicitly linked the proposed arms-ownership right to the militia. /7/

If the District Court's account of the Second Amendment were correct— if the Amendment was intended to protect arms ownership for its own sake, or for any purpose desired by the owner— the ratification debates would be full of references to the virtues of arms ownership, or to frontier-dwellers' need to protect themselves, or to rural Americans' need to hunt game. That is simply not the case. The Anti- Federalists offered no purpose for the Second Amendment other than the perceived danger of standing armies. Jonathan Elliot's records of the debates in the ratifying conventions contain at least 80 pages of discussion concerning standing armies and the militia, 1 Elliot's Debates, supra, at 88, 371-72; 2 Id. at 96-99, 406, 520-522, 531, 536-37, 3 Id. at 378-94, 400-03, 405-31, 440-41; 4 Id. at 97-100, 214-15, 260- 62; 5 Id. at 127, 440, 443-44, 451, 464-67, 480, and not a single reference to the need to bear arms for any purpose other than militia service. Similarly, the index to Herbert Storing's The Complete Anti-Federalist— the most comprehensive collection of Anti-Federalist writings— lists 76 references to "standing armies." 7 Complete Anti-Federalist, supra, at 94-95. That same index shows only 2 references to a "right to bear arms," 7 Id. at 9; both of these are descriptions of a proposal by Anti-Federalist delegates to the Pennsylvania ratifying convention for an amendment protecting the right to bear arms for, among other purposes, "killing game." Again, this proposal was rejected both by the Pennsylvania convention itself and by the drafters of the Second Amendment. /8/ Strengthening the militia and guarding against the danger of a standing army were the purposes of the Second Amendment, not enabling individuals to own guns for their own private ends.

    E. The militia protected by the Second Amendment were quasi-governmental bodies organized by the states, not individual citizens or isolated bands of disaffected insurrectionists.

The District Court seeks to convert the right of militiamen to be armed into a right of all individuals to be armed by claiming that "under prevailing practice [at the time the Second Amendment was adopted] the militia included all people," Slip. Op. at 13, and proceeding to conclude that "[b]ecause all were members of the militia, all enjoyed the right to individually bear arms to serve therein." Id. These claims contain two serious historical blunders.

In the first place, the District Court mistakenly accepts the myth that Revolutionary-era militia service was universal. In addition to excluding women and African-Americans, every state imposed numerous limitations on militia service and firearm possession. Michael Bellesiles, Gun Laws in Early America, supra, at 587. Pennsylvania enacted a stringent loyalty oath that disarmed "as much as forty percent of the citizenry." Saul Cornell, Commonplace or Anachronism, supra, at 228.

Second, the reason that most white men enjoyed a Second Amendment right in 1791 was not simply because they were American citizens, but because their states had chosen to include them in the militia. The fact that Founding-era militias included most white men does not mean that the Founders intended the Second Amendment to benefit all men in their individual capacities.

Even for those Founders who believed in universal militia service, "militia" was not simply a synonym for "all men." John Adams express the distinction between arms-bearer-as-individual and arms-bearer-as-militiaman:
    To suppose arms in the hands of citizens, to be used at individualdiscretion, except in private self-defense, or by partial orders of towns,counties or districts of a state, is to demolish every constitution, and laythe laws prostrate, so that liberty can be enjoyed by no man; it is adissolution of the government. The fundamental law of the militia is that it be created, directed and commanded by the laws, and ever for the support of the laws.
6 Works of John Adams 197 (C. Adams ed. 1851). A group of men did not become a "militia" until they were organized by the state to serve the common defense. See 4 Elliot's Debates, supra, at 424 ("If we are, then, to govern the militia, it must be such men as the particular states have declared to be militia.") (statement of Rep. Williamson); see also Marguerite Driessen, Private Organizations and the Militia Status, 1998 B.Y.U.L. Rev. 1, 7-8 ("[L]egitimate militias were organized by the State. Being a member of a militia was not something an individual conferred upon himself."). /9/

This understanding of the militia was written into the Constitution, which specifically recognized that only the states had authority to "Appoint[] . . . the Officers" of their militia"; individual citizens could not deem themselves militiamen. U.S. Const. Art. I, § 8, cl. 16. The text of the Second Amendment itself disallows any equation between the militia and all American citizens in their individual capacities. The Amendment does not use the simple word "Militia," but the phrase "well regulated Militia."

The Founders' ideology of the militia was borne out in practice. In 1787, four states sent their militia to quell Shays' Rebellion in Massachusetts. The framers of the Second Amendment did not see Daniel Shays and his followers as "militia"— they were insurrectionaries pursuing a private interest (debt relief) and had no claim to public protection. See generally David Szatmary, Shays Rebellion (1980).

Seven years later— after adoption of the Second Amendment— President Washington sent militia to put down the Whiskey Rebellion in Pennsylvania. No one in 1794 would have suggested that rebellious Pennsylvania farmers were a "militia" protected by the Second Amendment, nor is there any evidence that the rebels invoked the Second Amendment. Michael Bellesiles, Suicide Pact, supra, at256. The actions of the rebels were attacked by both leading Federalists and former Anti-Federalists. See Thomas Slaughter, The Whiskey Rebellion 190-204 (1986); Saul Cornell, Commonplace or Anachronism, supra.

By guaranteeing the right of militiamen to be armed, the Founders intended to preserve organized, state-based militias; they did not seek to empower individuals or small groups of disaffected citizens to take up arms against the established order.

    F. In crafting the Second Amendment to ensure the vitality of the militia and protect against standing armies, the framers of the Amendment built on the precedent of the English Bill of Rights.

The District Court identified the 1689 English Bill of Rights as an important historical precedent for our Bill of Rights. Slip. Op. at 8-9. To the extent British history is relevant to the Second Amendment, however, it undermines the District Court's holding.

The English Bill of Rights resulted from a 60-year struggle for power between the largely Protestant Parliament and a succession of Stuart kings allied with Catholic interests. Parliament finally won the conflict, installing a Protestant king and adopting a Bill of Rights containing the following: "Whereas the late King James II did endeavor to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom . . . by raising and keeping a standing army within this kingdom in time of peace without consent of parliament and ... by causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law, ... [we] declare ... that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law; that the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law...." Sources of English Constitutional History 600-01 (Carl Stephenson & Frederick George Marcham eds., 1937).

These provisions were designed to ensure a feudal militia in which each lord commanded men-in-arms from the areas under his dominion. The Stuart kings had wanted a centralized militia with officers appointed by the king. Compare Id. at 486 (reprinting Militia Ordinance of 1642) with Id. at 541 (reprinting Militia Act of 1661). Thus the guarantee was limited to Protestants, and it applied only to arms "suitable to their conditions" (meaning status in the feudal hierarchy). It explicitly recognized the numerous common law and statutory restrictions on gun possession which existed both before and after adoption of the English Bill of Rights. See Michael Bellesiles, Gun Laws in Early America, supra, at 571-73. The purpose of the English Bill of Rights was not to protect individual British citizens' rights to own weapons but to guarantee that Parliament's noblemen would be able to field armed forces independent of the crown— a concern directly analogous to that of the American Anti-Federalists who sought to prevent the new central government from monopolizing military force.

    II. Because 18 U.S.C. § 922(g)(8) has no effect on the states' militia, it does not violate the Second Amendment.

The Statute invalidated by the District Court prohibits any person subject to a certain type of restraining order from possessing a firearm. This Statute does not interfere with the states' militia, and therefore cannot be said to violate the Second Amendment. Cf. Fraternal Order of Police v. United States, 173 F.3d 898 (D.C. Cir. 1999) ("We suppose Miller would be met by evidence supporting a finding that the disputed rule would materially impair the effectiveness of a militia, though perhaps some other showing could suffice. We need not fix the exact form of the required relationship, however, because FOP has presented no evidence on the matter at all.")

At the outset, Amici note that even if this Court deems the Statute to burden a Second Amendment interest by interfering with the militia, the statute would still not automatically be invalid. Rather, this Court would then have to determine what level of government interest would justify imposition on the Second Amendment right, and whether the Statute meets the appropriate standard.

In this case, however, no analysis of the government interest is required because the Statute imposes no Second Amendment harm. Under federal law, the "organized militia [of the United States] . . . consists of the National Guard and the Naval Militia." 10 U.S.C. § 311(b)(1); see also Perpich v. Dept. of Defense, 496 U.S. 334 (1990). In addition, Appellee's home state of Texas maintains a volunteer force known as the Texas State Guard, which "exists as part of the state militia under the Second Amendment to the United States Constitution." Tex. Gov't Code Ann. § 431.051. The Statute does not apply to possession of weapons by people serving in the National Guard, the Naval Militia or the Texas State Guard. See 18 U.S.C. § 925(a)(1) ("The provisions of this chapter [which includes the Act] . . . shall not apply with respect to the . . . possession . . . of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.")

Even if the Statute were held to apply to active members of the National Guard, the Naval Militia or the Texas State Guard, it could not be considered to burden a protected Second Amendment interest. The only conceivable burden would be that persons prohibited by the Statute from possessing weapons would be unable to serve in a militia entity. For several reasons, this does not constitute interference with the militia.

First, people prohibited from possessing weapons can still serve the militia in other capacities. Second, the Statute disables a very small number of people from possessing weapons; its impact on the available pool of militia members is de minimus. Third, the disability imposed by the Statute is temporary; it vanishes once the triggering protective order lapses. In this case, moreover, the protective order that subjected Appellee to the Statute's prohibitions was issued by a Texas court. If in fact Appellee would be ineligible for service in the Texas National Guard or the Texas State Guard during the period he is prohibited by the Act from possessing weapons, this ineligibility was caused by Texas itself.

Finally, there is no indication in the record that Appellee serves in any militia entity. The National Guard, the Naval Militia and the Texas State Guard are the only entities that can possibly be considered to constitute the Texas militia. Texas law specifically prohibits "private" militias. Tex. Gov't Code Ann. § 431.010; Vietnamese Fisherman's Association v. Ku Klux Klan, 543 F. Supp. 198, 210 (S.D. Tex. 1982) (Texas Ku Klux Klan not a protected militia under Second Amendment).

The temporary denial of firearm possession to an individual who is not affiliated in any way with the National Guard or any other organized state militia simply cannot count as a Second Amendment harm.

Footnotes

  1. The individual rights theorists label their account of the Second Amendment the"Standard Model," Slip. Op. at 5, which implies that it is espoused by the majority of constitutional law scholars. Amici deny that this is the case. Perhaps because the Miller view of the Second Amendment has been settled law for so long, few constitutional law scholars have published analyses of the Amendment. Among those commentators who have addressed the Amendment, several have advocated interpretations consistent with this Brief. See, e.g., Carl Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998); Id. at 317 n.34 (citing sources); Dennis Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U.L. Rev. 107 (1991); John Dwight Ingram & Allison Ann Ray, The Right(?) to Keep and Bear Arms, 27 N.M.L. Rev. 491 (1997); cf. Laurence Tribe, 1 American Constitutional Law 902 (3d ed. 2000) ("the academic debate over the scope of the Second Amendment is largely irrelevant to contemporary gun control proposals, which . . . are plainly constitutional"); Akhil Reed Amar,Second Thoughts, The New Republic, July 12, 1999 at 24 ("A modern translation of theamendment might thus be: 'An armed and militarily trained citizenry being conducive to freedom,the right of the electorate to organize itself militarily shall not be infringed.'"). Of particular importance, historians specializing in the Founding period have rejected claims made by the individual rights theorists as anachronistic. See Saul Cornell, Commonplace or Anachronism, 16 Const. Commentary 221 (1999); Don Higginbotham, The Second Amendment in Historical Context, 16 Const. Commentary 263 (1999), Michael A. Bellesiles, Suicide Pact: New Readings of the Second Amendment, 16 Const. Commentary 247 (1999); Garry Wills, To Keep and Bear Arms, N.Y. Rev. Books, Sept. 21, 1995, at 62; Michael Bellesiles, Gun Laws in Early America, 16 Law and History Review 567 (1998).Back^
  2. The presence of the word "keep" in the Second Amendment does not change the Amendment's fundamentally military meaning. The language "keep and bear Arms" should be understood as a single term of art, such as "arbitrary and capricious" or "willful, deliberate and premeditated." To the extent that "keep" has an independent meaning in the Amendment, it simply precludes a narrow reading of the Amendment that would protect only the possession of firearms by persons actively engaged in militia duties (permitting, for example, the federal government to require weapons to be stored in a central depository). By protecting the right to "keep" as well as "bear" arms, the Amendment ensures that militiamen are able to store their weapons at home, thus making militia disarmament more difficult.Back^
  3. This Brief will refer to the language "A well regulated Militia, being necessary to the security of a free State," as the "Well Regulated Militia Clause," and to the language "the right ofthe people to keep and bear Arms, shall not be infringed" as the "Bear Arms Clause."Back^
  4. At the same time the congressional drafters switched the order of the clauses, they inserted two unusual commas that further emphasize the framers' intention to prevent federal interference with the militia. Under ordinary usage, the first and third commas in the Amendment are unnecessary. If these commas had not been inserted, it would be possible to understand the Well Regulated Militia Clause as simply explaining the rationale for the Bear Arms Clause (the Amendment would then read: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."). But the commas are in fact in the text proposed by Congress and ratified by the states, and they prevent this reading. The first unusual comma— between "Militia" and "being"— forces the reader to search for a verb for which "Militia" is the subject. That verb does not appear until "shall not be infringed" near the end of the Amendment. The second unusual comma— between "Arms" and "shall"— sets off the verb phrase "shall not be infringed" from the preceding language; it suggests that the subject for this verb phrase is not simply "the right of the people to keep and bear Arms." The grammatical effect of these two unusual commas is to link "A well regulated Militia" to "shall not be infringed" to emphasize, in other words, that the goal of the Amendment is to protect the militia against federal interference. The Constitution was drafted with great care, and (unlike much legal writing from the Founding period) its use of punctuation generally conforms to modern conventions, suggesting that the commas in the Second Amendment are not haphazard but rather deserve scrupulous attention.Back^
  5. A fourth change, making "A well regulated Militia, being the best security of a free State," into "A well regulated Militia, being necessary to the security of a free State," reflects the framers' hostility to standing armies, which is discussed in Section I.D, infra. See Documentary Record, supra, at 184 (statement of Elbridge Gerry in First Congress) ("Mr. Gerry objected to thefirst part of the clause, on account of the uncertainty with which it is expressed: A well-regulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one.")Back^
  6. Of the five convention proposals, the District Court opinion quotes only New Hampshire's. Slip. Op. at 16. The District Court also refers to proposals in the Pennsylvania and Massachusetts conventions for broad arms-ownership rights. Id. at 15. These proposals were rejected both within their own State ratifying conventions and by the drafters of the Second Amendment.Back^
  7. While statements about drafters' intentions unavoidably involve speculation, the drafters of the Second Amendment were certainly familiar with all of the state proposals, as well as state constitutional provisions (some of which were worded more broadly than the Second Amendment), and it is reasonable to infer that the decision to model the Amendment on the four narrower state proposals rather than on New Hampshire's was deliberate. Moreover, it is clear from the historical record that the First Congress approved the Bill of Rights in direct response to demands made by the ratifying conventions; in a number of states, Federalist supporters of the Constitution agreed to support a Bill of Rights in order to secure crucial votes for ratification. Murray Dry, The Case Against Ratification, in The Framing and Ratification of the Constitution (Leonard Levy & Dennis Mahoney eds. 1987) at 287.Back^
  8. The Pennsylvania proposal— which is contained in one of the most important Anti-Federalist documents and is the only recorded entry in the ratification debates to offer unambiguously a purpose for the right to bear arms other than protecting the militia— reads in its entirety as follows:
      That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.
    3 Complete Anti-Federalist at 151. This proposed amendment by itself refutes the District Court's opinion. Its breadth shows the comparative narrowness of the Second Amendment.
    First, the Pennsylvania proposal's protection of the right to bear arms "for the purpose of killing game" is unlike every state constitution of its time and every other proposal for amending the federal Constitution. The fact that the Pennsylvania Minority felt the need to specify the reach of their proposal suggests that "killing game" would not otherwise have been considered material to the right to bear arms. Second, the Pennsylvania proposal prohibited disarming either "the people" or "any of them." By contrast, the Second Amendment speaks only of "the people" in their collective capacity as militiamen. Finally, even this very broad proposal would have still permitted the federal government to disarm "individuals" posing a "real danger of public injury"—just as Congress did in this case by seeking to disarm those who pose a demonstrable threat of harming others.Back^
  9. Recognizing that the Second Amendment protects participation only in organized state militia does not entail, as the District Court claims it would, turning the right to bear arms into a "collective right held by the states." Slip. Op. at 10. Indeed, the District Court's analytic dichotomy between a "'states' rights' or 'collective rights' school [of thought on the Second Amendment] and the 'individual rights' school," Id. at 6, is a red herring. The Second Amendment certainly grants an "individual right" in the sense that an individual can rely on the Second Amendment to challenge a statute that harms him or her. But the fact that individual Americans benefit from the Second Amendment, and can invoke the judicial power to strike down laws under the Second Amendment, says nothing about the scope of the right created by the Amendment. The issue in this case is not whether Appellee has standing to raise a Second Amendment claim; the issue is whether the Amendment protects Appellee's possession of a firearm under any circumstances, regardless of its lack of connection to militia service. The text and history of the Second Amendment make it clear that the Amendment's scope is not nearly so broad.Back^
  David Yassky
Brooklyn Law School

APPENDIX A - LIST OF AMICI

This Brief is submitted on behalf of the following individuals, and not on behalf of any of the institutions with which these individuals are affiliated):

Bruce Ackerman
Joyce Appleby
Jack M. Balkin
Michael Bellesiles
Adele Bernhard
Ruth Bloch
Carl T. Bogus
Frank Bowman
John Brooke
Chandos Michael Brown
Darryl Brown
Edwin G. Burrows
Andrew Cayton
Erwin Chermerinsky
Saul Cornell
Edward Countryman
John DiPippa
Michael Dorf
Norman Dorsen
David Dow
Susan R. Estrich
Heidi Li Feldman
Hendrik G. Hartog
Bruce Hay
Don Higginbotham
Peter Charles Hoffer
Nancy Isenberg
Sheri L. Johnson
Stanley N. Katz
Arthur LaFrance
Jan Lewis Newark
Jill Lepore
Rory K.Little
Mari J. Matsuda
Andrew J. McClurg
Frank Michelman
Dawn Nunziato
Michael Perlin
Carl Prince
Norman L. Rosenberg
Malinda L. Seymore
Peter Shane
Billy G. Smith
Peter J. Strauss
Richard Uviller
Spencer Weber Waller
Eldon D. Wedlock, Jr.
Leila Sadat Wexler
Welsh S. White
Steve Winter
David Yassky
Michael Zuckerman

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