Miscellaneous: Amicus Curiae brief by David Yassky, US v. Timothy Joe Emerson, Sept. 1999
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.
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.
Appendix A - List of Amici
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.
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'").
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.
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/
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:
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.
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.
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).
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.
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.
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.
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):