IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10331
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
TIMOTHY JOE EMERSON,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Texas
October 16, 2001
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.
GARWOOD, Circuit Judge:
The United States appeals the district court's dismissal of the indictment
of Defendant-Appellee Dr. Timothy Joe Emerson (Emerson) for
violating 18 U.S.C. § 922(g)(8)(C)(ii). The district court held that
section 922(g)(8)(C)(ii) was unconstitutional on its face under the Second
Amendment and as applied to Emerson under the Due Process Clause of the
Fifth Amendment. We reverse and remand. Facts and Proceedings Below
On August 28, 1998, Sacha Emerson, Emerson's wife, filed a petition for
divorce in the 119th District Court of Tom Green County, Texas. The
petition also requested, inter alia, a temporary injunction enjoining
Emerson from engaging in any of twenty-nine enumerated acts. On September
4, 1998, Judge Sutton held a temporary orders evidentiary hearing. Sacha
Emerson was represented by counsel while Emerson appeared pro se. There
is no evidence that Emerson was unable (financially or otherwise) to
retain counsel for the hearing or that he desired representation by counsel
on that occasion. He announced ready at the beginning of the September 4
hearing. Almost all of Sacha Emerson's direct testimony concerned financial
matters, but the following relevant exchange took place on direct
examination by her attorney:
Q You are here today asking the Court for temporary orders regarding
yourself and your daughter; is that correct?
A Yes.
Q You have asked in these restraining orders regarding Mr. Emerson in that
he not communicate with you in an obscene, vulgar, profane, indecent
manner, in a coarse or offensive manner?
A Yes.
Q He has previous to today threatened to kill you; is that correct?
A He hasn't threatened to kill me. He's threatened to kill a friend of
mine.
Q Okay. And he has threatened - he has made some phone calls to you about
that?
A Yes.(1)
Emerson declined an opportunity to cross-examine Sacha and presented no
evidence tending to refute any of her above quoted testimony or to explain
his conduct in that respect. In his testimony he stated in another
connection, among other things, that he was suffering from "anxiety" and
was not "mentally in a good state of mind."
On September 14, 1998, Judge Sutton issued a temporary order that included
a "Temporary Injunction" which stated that Emerson "is enjoined
from" engaging in any of twenty-two enumerated acts, including the
following:
"2. Threatening Petitioner in person, by telephone, or in writing to take
unlawful action against any person."
"4. Intentionally, knowingly, or recklessly causing bodily injury to
Petitioner or to a child of either party."
"5. Threatening Petitioner or a child of either party with imminent bodily
injury."
The order provides that it "shall continue in force until the signing of
the final decree of divorce or until further order of this court." The
September 14, 1998 order did not include any express finding that Emerson
posed a future danger to Sacha or to his daughter Logan.(2) There is
nothing to indicate that Emerson ever sought to modify or challenge any of
the provisions of the September 14, 1998 order.
On December 8, 1998, the grand jury for the Northern District of Texas, San
Angelo division, returned a five-count indictment against Emerson. The
government moved to dismiss counts 2 through 5, which motion the district
court subsequently granted.(3) Count 1, the only remaining count and the
count here at issue, alleged that Emerson on November 16, 1998,
unlawfully possessed "in and affecting interstate commerce" a firearm, a
Beretta pistol, while subject to the above mentioned September 14, 1998
order, in violation of 18 U.S.C. § 922(g)(8). It appears that Emerson had
purchased the pistol on October 10, 1997, in San Angelo, Texas, from a
licensed firearms dealer. Emerson does not claim that the pistol had not
previously traveled in interstate or foreign commerce. It is not disputed
that the September 14, 1998 order was in effect at least through November
16, 1998.
Emerson moved pretrial to dismiss the indictment, asserting that section
922(g)(8), facially and as applied to him, violates the Second Amendment
and the Due Process Clause of the Fifth Amendment. He also moved to dismiss
on the basis that section 922(g)(8) was an improper exertion of federal
power under the Commerce Clause and that, in any case, the law
unconstitutionally usurps powers reserved to the states by the Tenth
Amendment. An evidentiary hearing was held on Emerson's motion to dismiss.
The district court granted Emerson's motions to dismiss. Subsequently, the
district court issued an amended memorandum opinion reported at 46
F.Supp.2d 598 (N.D. Tex. 1999). The district court held that dismissal of
the indictment was proper on Second or Fifth Amendment grounds, but
rejected Emerson's Tenth Amendment and Commerce Clause arguments.
The government appealed. Emerson filed a notice of cross-appeal, which
was dismissed by this Court. The government challenges the district court's
dismissal on Second and Fifth Amendment grounds. Emerson defends
the district court's dismissal on those grounds and also urges that
dismissal was in any event proper under the Commerce Clause and on
statutory grounds. Discussion
I. Construction of 18 U.S.C. § 922(g)(8)
18 U.S.C. § 922 provides in relevant part:
"(g) It shall be unlawful for any person-
....
(8) who is subject to a court order that-
(A) was issued after a hearing of which such person received actual notice,
and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an
intimate partner of such person or child of such intimate partner or
person, or engaging in other conduct that would place an intimate partner
in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to
the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or
threatened use of physical force against such intimate partner or child
that would reasonably be expected to cause bodily injury; or
....
to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate or foreign
commerce."
Emerson argues that section 922(g)(8)(C)(ii) should be construed to
require that the particular predicate court order include an explicit
finding that the person enjoined posed a credible threat of violence to his
spouse or child. Emerson further argues that the statute must also be
read to require that the predicate order be supported by sufficient
evidence before the court entering it to sustain such a finding, so that
the court in the criminal prosecution must examine the record in the
proceeding before the court entering the predicate order and must acquit
the defendant in the criminal case if the evidence before the court
entering the predicate order was not sufficient to sustain such a finding.
It is, of course, our duty to construe a statute so as to avoid any serious
constitutional questions. However, the statute must be susceptible to that
construction, i.e. our construction must be fairly possible; the duty to
avoid constitutional questions is not a license to rewrite the statute.
Jones v. United States, 119 S.Ct. 1215, 1222 (1999); Feltner v. Columbia
Pictures Television, Inc., 118 S.Ct. 1279, 1283 (1998); United States v.
Albertini, 105 S.Ct. 2897, 2902 (1985). "If the statutory language is
unambiguous, in the absence of 'a clearly expressed legislative intent to
the contrary, that language must ordinarily be regarded as conclusive.'"
Russello v. United States, 104 S.Ct. 296, 299 ( 1983) (quoting United
States v. Turkette, 101 S.Ct. 2524, 2527 (1981)). In addition, if
uncertainty remains after an examination of the statute's text, its
legislative history and the policies it advances, the rule of lenity
requires this uncertainty to be resolved in favor of Emerson. United States
v. Prestenbach, 230 F.3d 780, n.23 (5th Cir. 2000).
Turning first to Emerson's second statutory argument, there is nothing in
the text of the statute to support it. Moreover, it is contrary to uniform
construction of section 922(g) and its predecessors under which the courts
have construed this and other similar subsections of section 922. See,
e.g., Lewis v. United States, 100 S.Ct. 915 (1980); United States v.
Chambers, 922 F.2d 228, 232-40 (5th Cir. 1991). Just as Lewis observed that
"nothing [in the statutory text] suggests any restriction on the scope of
the term 'convicted,'" id. at 918, so also nothing in section 922(g)(8)
suggests that the validity of the particular predicate court order may be
inquired into in the section 922(g)(8) criminal prosecution. Moreover, this
is consistent with the long standing federal rule that violation of an
injunction that is subsequently invalidated may, at least so long as it
cannot be characterized as having only a transparent or frivolous pretense
to validity, be punished as criminal contempt. See Chambers at 239-40;
National Maritime Union v. Aquaslide 'N' Drive Corp., 737 F.2d 1395,
1399-1400 (5th Cir. 1984).(4)
We likewise reject the argument that section 922(g)(8) requires that the
predicate order contain an express judicial finding that the defendant
poses a credible threat to the physical safety of his spouse or child. If
the requirements of 922(g)(8)(A) and (B) are fulfilled, then by its terms
section 922(g)'s firearms disability attaches if either clause (C)(i) or
clause (C)(ii) applies. Although an express judicial finding of future
dangerousness pursuant to section 922(g)(8)(C)(i) is one way section
922(g)( 8)'s firearms disability can attach, to construe section 922(g)(8)
as always requiring an express judicial finding would be to substitute the
word "and" for the word "or" that appears at the end of 922(g)(8)(C)(i). If
Congress intended to require an express judicial finding, it would have
arranged the elements as 922(g)(8)(A)-(D) and used the word "and" rather
than "or" to join them.
Notwithstanding the lack of textual ambiguity, Emerson maintains that we
should either imply the express judicial finding requirement into section
922(g)(8) or at least recognize the lack of an express judicial finding as
an affirmative defense to section 922(g)(8). He argues that, without the
requirement of an express judicial finding, sections 922(g)(8)(B) and (C)(
ii) are redundant while section 922(g)(8)(A) is rendered a nullity. While
there is some overlap between section 922(g)(8)(B) and (C)(ii), each still
has some independent scope in the statutory scheme. Section 922(g)(8)(B)
broadly refers to orders that restrain harassing, stalking or threatening.
It is quite possible that an order could surmount the section 922(g)(8)(B)
hurdle and yet only fulfill one of the section 922(g)(8)(C) criteria.
Congress obviously felt that if the order only "restrains" harassing,
stalking, threatening, or otherwise causing fear of injury, an express
judicial finding of a credible threat of violence was necessary. Section
922(g)(8)(B) and (C)(i). However, if the order "by its terms explicitly
prohibits" the use, attempted use or threatened use of physical force, no
such express finding was necessary. Section 922(g)(8)(C)(ii). Thus,
Congress affirmatively drew a distinction between orders "explicitly
prohibiting" the actual, attempted or threatened physical attack and those
merely "restraining" stalking or harassment. It is true that both sections
embrace orders that proscribe threats, but this degree of congruence is
insufficient to overcome the plain meaning of the text. Nor do we agree
that the absence of a requirement of an express judicial finding renders
section 922(g)(8)(A) a nullity.
Emerson also argues that the word "restrain", as used in 922(g)(8)(B),
necessarily requires an express judicial finding that the defendant poses a
credible threat of violence to his spouse or child. The argument is simply
that both temporary and permanent injunctions traditionally require, in
addition to notice and hearing, some express judicial finding supporting
the court's order. While this may be generally true, it is not invariably
the case that injunctions must contain such findings and, more importantly,
the argument made does not overcome the fact that Congress specifically
required notice and hearing in all section 922(g)(8) cases but
affirmatively and specifically required an express finding only in cases
governed by clause (C)(i). The crux of the matter is that we cannot imply
in clause (C)(ii) an express finding requirement that is not stated in it
while being affirmatively and specifically stated in clause (C)(i).
Relying on the legislative history of section 922(g)(8), Emerson and
amicus the State of Alabama contend that all three versions of the bill (
one from the House, two from the Senate) that went to the Conference
Committee required an express judicial finding. They contend that the real
purpose of section 922(g)(8)(C)(ii) is to close a "loophole" in section
922(g)(8) that would have prevented it from applying if the express
judicial finding was not in the order itself, but instead, for example, in
an accompanying memorandum. We find neither argument ultimately persuasive.
Contrary to the assertions of Emerson and the
State of Alabama, one of the Senate versions of the bill that went to the
Conference Committee did authorize a firearms disability without any
express judicial finding. This version resulted from amendment 1179 to
S.1607, submitted by Senator Biden for Senator Wellstone on November 10,
1993. Amendment 1179 provided, in relevant part:
"(8)(A) has been convicted in any court of an offense that-
(i) involves the use, attempted use, or threatened use of physical force
against a person who is a spouse, former spouse, domestic partner, child,
or former child of the person; or
(ii) by its nature, involves a substantial risk that physical force against
a person who is a spouse, former spouse, domestic partner, child, or former
child of the person may be used in the course of committing the offense; or
(B) is required, pursuant to an order issued by any court in a case
involving a person described in subparagraph (A), to refrain from any
contact with or to maintain a minimum distance from that person, or to
refrain from abuse, harassment, or stalking of that person."
139 Cong. Rec. S15638-03, *S15650. This language was sent to the Conference
Committee on November 24, 1993, and clearly contemplates a firearms
disability without either a conviction or an express judicial finding of
future dangerousness. 139 Cong. Rec. S17095-03, *S17174.(5) Emerson's
contention that 922(g)(8)(C)(ii)'s presence in the statute cannot be
explained by anything sent to the Conference Committee is unfounded.
Similarly, there is nothing in the legislative history suggesting that
Congress, or any of its committees or members, ever addressed, considered
or had called to its or their attention the supposed " loophole" in the
statutory scheme now put forth by Emerson.
Because the construction urged by Emerson is not fairly possible, we must
decline his invitation to rewrite section 922(g)(8). Likewise, because
section 922(g)(8) is not ambiguous, the rule of lenity provides no basis
for relief.
II. Due Process Clause of the Fifth Amendment
The district court held that prosecution for violating section 922(g)(8)
would deprive Emerson of his Fifth Amendment right to Due Process because:
1) Dr. Emerson did not know that possession of a firearm while being
subject to the September 14, 1998 order was a crime; 2) section 922(g)(8)
is an "obscure criminal provision" that would be difficult for Emerson to
discover; 3) there is nothing inherently evil about possessing a firearm;
and 4) Emerson had no reason to suspect that being subject to the
September 14, 1998 order would criminalize otherwise lawful behavior.
United States v. Emerson, 46 F.Supp.2d 598, 611-13. The district court
relied upon Lambert v. California, 78 S.Ct. 240, 243 (1957), in which the
Supreme Court struck down a Los Angeles law requiring resident felons to
register with the city. The Supreme Court observed that: 1) the defendant
had been prosecuted for passive activity; 2) the defendant was unaware of
the need to register; 3) circumstances that would have prompted an inquiry
into the necessity of registration were lacking; and 4) an average member
of the community would not consider the punished conduct blameworthy. Id.
At the outset, we note that "[t]he sweep of the Lambert case has been
limited by subsequent decisions of the Supreme Court, lest it swallow the
general rule that ignorance of the law is no excuse." United States v.
Giles, 640 F.2d 621, 628 (5th Cir. 1981). 18 U.S.C. § 924(a)(2) provides
that the required mens rea for conviction under section 922(g) is knowledge
("Whoever knowingly violates subsection . . . (g) . . . of section 922 . .
."). "Knowingly"-in contrast to at least some uses of " wilfully"-does not
require that the defendant know that his actions are unlawful, but only
that he know he is engaging in the activity that the legislature has
proscribed. Bryan v. United States, 118 S.Ct. 1939, 1945- 47 (1998). Bryan
explained that Staples v. United States, 114 S.Ct. 1793 ( 1994),
exemplifies this distinction. In Staples, the Supreme Court held that
conviction for unlawful possession of a machine gun did not require
knowledge that machine gun possession was unlawful, but only knowledge that
the weapon possessed was a machine gun. Bryan, 118 S.Ct. at 1946 ( under
Staples "[i]t was not, however, necessary, to prove that the defendant knew
that his possession was unlawful"). Here, there is no question that Emerson
was aware that on November 16, 1998, he actively
possessed a firearm of the kind covered by the statute while subject to the
September 14, 1998 order or that he misapprehended the actual contents of
that order.(6)
Moreover, Emerson filled out and signed BATF Form 4473 when, on October
10, 1997, he purchased the Beretta semi-automatic pistol referred to in
Count 1. This afforded notice to Emerson that so long as he was under a
court order such as that of September 14, 1998, federal law prohibited his
continued possession of that weapon.(7) In Giles, we distinguished Lambert
on this basis (as well as others), noting "Giles' situation, of course, is
far different from that of Ms. Lambert, for he was directly confronted with
accurate written notice of the conduct proscribed by the statute [then §
922(h)(1)] when he filled out and signed a Form 4473 as part of each
firearm purchase." Giles, 640 F.2d at 628. Finally, we agree with the
district court that firearms ownership is not inherently evil or suspect
and that thus a certain mens rea is required. Staples, 114 S.Ct. at
1799-1801. However, Bryan and Staples make clear that the necessary mens
rea in this context does not require knowledge of the law but merely of the
legally relevant facts. Giles rejects application of Lambert at least
where, as here, there is the notice provided by the Form 4473. For these
reasons, we hold that Emerson's case does not merit relief under Lambert,
and that the district court erred when it granted Emerson's motion to
dismiss the indictment as violating his Fifth Amendment Due Process rights
on that basis.
III. Commerce Clause
The district court rejected Emerson's contention that, in enacting section
922(g)(8), Congress exceeded its power under the Commerce Clause. As the
district court noted, this Court has held that, because section 922( g)(8)
only criminalizes the possession of firearms or ammunition "in or affecting
commerce" and the reception of firearms that have been "shipped or
transported in interstate or foreign commerce", Congress did not exceed its
Article I, Section 8 powers in enacting it. United States v. Pierson, 139
F.3d 501, 503 (5th Cir.), cert. denied, 119 S.Ct. 220 (1998). Accordingly,
the district court, as bound by this precedent as we are, did not err in
denying Emerson's motion to dismiss the indictment on Commerce Clause
grounds.(8)
IV. Tenth Amendment
The district court held that congressional enactment of section 922(g)(8)
did not violate the Tenth Amendment to the Constitution. Finding no
reference to this issue in Emerson's brief to this Court, we must consider
his Tenth Amendment claim abandoned.
V. Second Amendment
The Second Amendment provides:
"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."
A. Introduction and Overview of Second Amendment Models
The district court held that the Second Amendment recognizes the right of
individual citizens to own and possess firearms, and declared that section
922(g)(8) was unconstitutional on its face because it requires that a
citizen be disarmed merely because of being subject to a "boilerplate [
domestic relations injunctive] order with no particularized findings."
Emerson, 46 F.Supp.2d at 611. The government opines that stare decisis
requires us to reverse the district court's embrace of the individual
rights model. Amici for the government argue that even if binding precedent
does not require reversal, the flaws in the district court's Second
Amendment analysis do.
In the last few decades, courts and commentators have offered what may
fairly be characterized as three different basic interpretations of the
Second Amendment. The first is that the Second Amendment does not apply to
individuals; rather, it merely recognizes the right of a state to arm its
militia.(9) This "states' rights" or "collective rights" interpretation of
the Second Amendment has been embraced by several of our sister
circuits.(10) The government commended the states' rights view of the
Second Amendment to the district court, urging that the Second Amendment
does not apply to individual citizens.
Proponents of the next model admit that the Second Amendment recognizes
some limited species of individual right. However, this supposedly "
individual" right to bear arms can only be exercised by members of a
functioning, organized state militia who bear the arms while and as a part
of actively participating in the organized militia's activities. The "
individual" right to keep arms only applies to members of such a militia,
and then only if the federal and state governments fail to provide the
firearms necessary for such militia service. At present, virtually the only
such organized and actively functioning militia is the National Guard, and
this has been the case for many years. Currently, the federal government
provides the necessary implements of warfare, including firearms, to the
National Guard, and this likewise has long been the case. Thus, under this
model, the Second Amendment poses no obstacle to the wholesale disarmament
of the American people. A number of our sister circuits have accepted this
model, sometimes referred to by commentators as the sophisticated
collective rights model.(11) On appeal the government has abandoned the
states' rights model and now advocates the sophisticated collective rights
model.
The third model is simply that the Second Amendment recognizes the right of
individuals to keep and bear arms. This is the view advanced by Emerson and
adopted by the district court. None of our sister circuits has subscribed
to this model, known by commentators as the individual rights model or the
standard model. The individual rights view has enjoyed considerable
academic endorsement, especially in the last two decades.(12)
We now turn to the question of whether the district court erred in adopting
an individual rights or standard model as the basis of its construction of
the Second Amendment.
B. Stare Decisis and United States v. Miller
The government steadfastly maintains that the Supreme Court's decision in
United States v. Miller, 59 S.Ct. 816 (1939), mandated acceptance of the
collective rights or sophisticated collective rights model, and rejection
of the individual rights or standard model, as a basis for construction of
the Second Amendment. We disagree.
Only in United States v. Miller has the Supreme Court rendered any holding
respecting the Second Amendment as applied to the federal government.(13)
There, the indictment charged the defendants with transporting in
interstate commerce, from Oklahoma to Arkansas, an unregistered "Stevens
shotgun having a barrel less than 18 inches in length" without having the
required stamped written order, contrary to the National Firearms Act.(14)
The defendants filed a demurrer challenging the facial validity of the
indictment on the ground that "[t]he National Firearms Act . . . offends
the inhibition of the Second Amendment," and "[ t]he District Court held
that section 11 of the Act [proscribing interstate transportation of a
firearm, as therein defined, that lacked registration or a stamped order]
violates the Second Amendment. It accordingly sustained the demurrer and
quashed the indictment." Id. at 817-18. The government appealed, and we
have examined a copy of its brief.(15) The Miller defendants neither filed
any brief nor made any appearance in the Supreme Court.
The government's Supreme Court brief "[p]reliminarily" points out that:
". . . the National Firearms Act does not apply to all firearms but only to
a limited class of firearms. The term 'firearm' is defined in Section 1 of
the Act. . . to refer only to 'a shotgun or rifle having a barrel of less
than 18 inches in length, or any other weapon, except a pistol or revolver,
from which a shot is discharged by an explosive if such weapon is capable
of being concealed on the person, or a machine gun, and includes a muffler
or silencer for any firearm whether or not such firearm is included within
the foregoing definition.'" (id. at 6).
In this connection the brief goes on to assert that it is "indisputable
that Congress was striking not at weapons intended for legitimate use but
at weapons which form the arsenal of the gangster and the desperado" (id.
at 7) and that the National Firearms Act restricts interstate
transportation "of only those weapons which are the tools of the criminal"
( id. at 8).
The government's brief thereafter makes essentially two legal arguments.
First, it contends that the right secured by the Second Amendment is " only
one which exists where the arms are borne in the militia or some other
military organization provided for by law and intended for the protection
of the state." Id. at 15. This, in essence, is the sophisticated collective
rights model.
The second of the government's two arguments in Miller is reflected by the
following passage from its brief:
"While some courts have said that the right to bear arms includes the right
of the individual to have them for the protection of his person and
property as well as the right of the people to bear them collectively (
People v. Brown, 253 Mich. 537; State v. Duke, 42 Tex. 455), the cases are
unanimous in holding that the term "arms" as used in constitutional
provisions refers only to those weapons which are ordinarily used for
military or public defense purposes and does not relate to those weapons
which are commonly used by criminals. Thus in Aymette v. State [2 Humph.,
Tenn. 154 (1840)], supra, it was said (p. 158):
'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 defence, so the arms, the right to keep which is secured, are
such as are usually employed in civilized warfare, and that constitute the
ordinary military equipment. If the citizens have these arms in their
hands, they are prepared in the best possible manner to repel any
encroachments upon their rights by those in authority. They need not, for
such a purpose, the use of those weapons which are usually employed in
private broils, and which are efficient only in the hands of the robber and
the assassin. These weapons would be useless in war. They could not be
employed advantageously in the common defence of the citizens. The right to
keep and bear them, is not, therefore, secured by the constitution.'" (Id.
at 18-19).(16)
The government's Miller brief then proceeds (at pp. 19-20) to cite various
other state cases, and Robertson v. Baldwin, 17 S.Ct. 326, 329 (1897),(17)
in support of its second argument, and states:
"That the foregoing cases conclusively establish that the Second Amendment
has relation only to the right of the people to keep and bear arms for
lawful purposes and does not conceivably relate to weapons of the type
referred to in the National Firearms Act cannot be doubted. Sawed- off
shotguns, sawed-off rifles and machine guns are clearly weapons which can
have no legitimate use in the hands of private individuals."
Thereafter, the government's brief in its "conclusion" states: ". . . we
respectfully submit that Section 11 of the National Firearms Act does not
infringe 'the right of the people to keep and bear arms' secured by the
Second Amendment."
Miller reversed the decision of the district court and "remanded for
further proceedings." Id. at 820. We believe it is entirely clear that the
Supreme Court decided Miller on the basis of the government's second
argument-that a "shotgun having a barrel of less than eighteen inches in
length" as stated in the National Firearms Act is not (or cannot merely be
assumed to be) one of the "Arms" which the Second Amendment prohibits
infringement of the right of the people to keep and bear-and not on the
basis of the government's first argument (that the Second Amendment
protects the right of the people to keep and bear no character of "arms"
when not borne in actual, active service in the militia or some other
military organization provided for by law"). Miller expresses its holding,
as follows:
"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." Id. at 818 (
emphasis added).
Note that the cited page of Aymette (p. 158) is the page from which the
government's brief quoted in support of its second argument (see text at
call for n.16 supra).(18)
Nowhere in the Court's Miller opinion is there any reference to the fact
that the indictment does not remotely suggest that either of the two
defendants was ever a member of any organized, active militia, such as the
National Guard, much less that either was engaged (or about to be engaged)
in any actual military service or training of such a militia unit when
transporting the sawed-off shotgun from Oklahoma into Arkansas. Had the
lack of such membership or engagement been a ground of the decision in
Miller, the Court's opinion would obviously have made mention of it. But it
did not.(19)
Nor do we believe that any other portion of the Miller opinion supports the
sophisticated collective rights model.
Just after the above quoted portion of its opinion, the Miller court
continued in a separate paragraph initially quoting the militia clauses of
article 1, § 8 (clauses 15 and 16)(20) and concluding:
"With obvious purpose to assure the continuation and render possible the
effectiveness of such forces [militia] the declaration and guarantee of the
Second Amendment were made. It must be interpreted and applied with that
end in view." Id. at 818.
Miller then proceeds to discuss what was meant by the term "militia,"
stating in part:
"The signification attributed to the term Militia appears from the debates
in the Convention, the history and legislation of Colonies and States, and
the writings of approved commentators. These show plainly enough that the
Militia comprised all males physically capable of acting in concert for the
common defense. . . . ordinarily when called for service these men were
expected to appear bearing arms supplied by themselves and of the kind in
common use at the time.
. . .
"The American Colonies In the 17th Century," Osgood, Vol. 1, ch. XIII,
affirms in reference to the early system of defense in New England-
"In all the colonies, as in England, the militia system was based on the
principle of the assize of arms. This implied the general obligation of all
adult male inhabitants to possess arms, and, with certain exceptions, to
cooperate in the work of defence.'" Id. at 818 (emphasis added).
"The General Court of Massachusetts, January Session 1784 (Laws and
Resolves 1784, c. 55, pp. 140, 142), provided for the organization and
government of the Militia. It directed that the Train Band should 'contain
all able bodied men, from sixteen to forty years of age, and the Alarm
List, all other men under sixty years of age, * * *.'" Id. at 819 (
emphasis added).
These passages from Miller suggest that the militia, the assurance of whose
continuation and the rendering possible of whose effectiveness Miller says
were purposes of the Second Amendment, referred to the generality of the
civilian male inhabitants throughout their lives from teenage years until
old age and to their personally keeping their own arms, and not merely to
individuals during the time (if any) they might be actively engaged in
actual military service or only to those who were members of special or
select units.
We conclude that Miller does not support the government's collective rights
or sophisticated collective rights approach to the Second Amendment.
Indeed, to the extent that Miller sheds light on the matter it cuts against
the government's position. Nor does the government cite any other authority
binding on this panel which mandates acceptance of its position in this
respect.(21) However, we do not proceed on the assumption that Miller
actually accepted an individual rights, as opposed to a collective or
sophisticated collective rights, interpretation of the Second Amendment.
Thus, Miller itself does not resolve that issue.(22) We turn, therefore, to
an analysis of history and wording of the Second Amendment for guidance. In
undertaking this analysis, we are mindful that almost all of our sister
circuits have rejected any individual rights view of the Second Amendment.
However, it respectfully appears to us that all or almost all of these
opinions seem to have done so either on the erroneous assumption that
Miller resolved that issue or without sufficient articulated examination of
the history and text of the Second Amendment.
C. Text
We begin construing the Second Amendment by examining its text: "[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.
2. Substantive Guarantee
a. "People"
The states rights model requires the word "people" to be read as though it
were "States" or "States respectively." This would also require a
corresponding change in the balance of the text to something like "to
provide for the militia to keep and bear arms." That is not only far
removed from the actual wording of the Second Amendment, but also would be
in substantial tension with Art. 1, § 8, Cl. 16 (Congress has the power "
To provide for . . . arming . . . the militia. . ."). For the sophisticated
collective rights model to be viable, the word "people" must be read as the
words "members of a select militia".(23) The individual rights model, of
course, does not require that any special or unique meaning be attributed
to the word "people." It gives the same meaning to the words "the people"
as used in the Second Amendment phrase "the right of the people" as when
used in the exact same phrase in the contemporaneously submitted and
ratified First and Fourth Amendments.
There is no evidence in the text of the Second Amendment, or any other part
of the Constitution, that the words "the people" have a different
connotation within the Second Amendment than when employed elsewhere in the
Constitution. In fact, the text of the Constitution, as a whole, strongly
suggests that the words "the people" have precisely the same meaning within
the Second Amendment as without. And, as used throughout the Constitution,
"the people" have "rights" and "powers," but federal and state governments
only have "powers" or "authority", never "rights."(24) Moreover, the
Constitution's text likewise recognizes not only the difference between the
"militia" and "the people" but also between the " militia" which has not
been "call[ed] forth" and "the militia, when in actual service."(25)
Our view of the meaning of "the people," as used in the Constitution, is in
harmony with the United States Supreme Court's pronouncement in United
States v. Verdugo-Urquidez, 110 S.Ct. 1056, 1060-61 (1990), that:
"'[T]he people' seems to have been a term of art employed in select parts
of the Constitution. The Preamble declares that the Constitution is
ordained and established by 'the People of the United States.' The Second
Amendment protects 'the right of the people to keep and bear Arms,' and the
Ninth and Tenth Amendments provide that certain rights and powers are
retained by
and reserved to 'the people.' While this textual exegesis is by no means
conclusive, it suggests that 'the people' protected by the Fourth
Amendment, and by the First and Second Amendments, and to whom rights and
powers are reserved in the Ninth and Tenth Amendments, refers to a class of
people who are part of a national community or who have otherwise developed
sufficient connection with this country to be considered part of that
community." (citations omitted)
Several other Supreme Court opinions speak of the Second Amendment in a
manner plainly indicating that the right which it secures to "the people"
is an individual or personal, not a collective or quasi-collective, right
in the same sense that the rights secured to "the people" in the First and
Fourth Amendments, and the rights secured by the other provisions of the
first eight amendments, are individual or personal, and not collective or
quasi-collective, rights. See, e.g., Planned Parenthood v. Casey, 112 S.Ct.
2791, 2805 (1992); Moore v. City of East Cleveland, 97 S.Ct. 1932, 1937
(1977);(26) Robertson v. Baldwin, supra (see quotation in note 17 supra);
Scott v. Sandford, 60 U.S. (19 How) 393, 417, 450-51, 15 L.Ed. 691, 705,
719 (1856). See also Justice Black's concurring opinion in Duncan v.
Louisiana, 88 S.Ct. 1444, 1456 (1968).(27)
It appears clear that "the people," as used in the Constitution, including
the Second Amendment, refers to individual Americans.
b. "Bear Arms"
Proponents of the states' rights and sophisticated collective rights models
argue that the phrase "bear arms" only applies to a member of the militia
carrying weapons during actual militia service. Champions of the individual
rights model opine that "bear arms" refers to any carrying of weapons,
whether by a soldier or a civilian. There is no question that the phrase
"bear arms" may be used to refer to the carrying of arms by a soldier or
militiaman. The issue is whether "bear arms" was also commonly used to
refer to the carrying of arms by a civilian.
The best evidence that "bear arms" was primarily used to refer to military
situations comes from Aymette v. State, 2 Humph., Tenn. 154 (1840 ), a
prosecution for carrying a concealed bowie knife. The Supreme Court of
Tennessee, in construing section 26 of its declaration of rights, providing
that "the free white men of this State have a right to keep and bear arms
for their common defence," stated:
"The 28th section of our bill of rights provides 'that no citizen of this
State shall be compelled to bear arms provided he will pay an equivalent,
to be ascertained by law.' Here we know that the phrase has a military
sense, and no other; and we must infer that it is used in the same way in
the 26th section, which secures to the citizen the right to bear arms. A
man in 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 . . . ."
Unlike the Tennessee constitution at issue in Aymette, the Second Amendment
has no "for their common defence" language and the United States
Constitution contains no provision comparable to section 28 of the
Tennessee constitution on which the Aymette court relied.
Amici supporting the government also cite other examples of state
constitutional provisions allowing a conscientious objector to be excused
from the duty of bearing arms if he pays an equivalent so that another can
serve in his place.(28)
However, there are numerous instances of the phrase "bear arms" being used
to describe a civilian's carrying of arms. Early constitutional provisions
or declarations of rights in at least some ten different states speak of
the right of the "people" [or "citizen" or "citizens"] "to bear arms in
defense of themselves [or "himself"] and the state," or equivalent words,
thus indisputably reflecting that under common usage "bear arms" was in no
sense restricted to bearing arms in military service.(29) And such
provisions were enforced on the basis that the right to bear arms was not
restricted to bearing arms during actual military service. See Bliss v.
Commonwealth, 13 Am. Dec. 251, 12 Ky. 90 (Ky. 1822).
We also note that a minority of the delegates to the Pennsylvania
ratification convention proposed the following amendment to the
Constitution:
"That the people have a right to bear arms for the defense of themselves
and their own state, or the United States, or for the purpose of killing
game; and no law shall be passed for 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."
2 Documentary History of the Ratification of the Constitution 623-24 (
Merill Jensen ed., 1976). This is yet another example of "bear arms" being
used to refer to the carrying of arms by civilians for non-military
purposes. Also revealing is a bill drafted by Thomas Jefferson and proposed
to the Virginia legislature by James Madison (the author of the Second
Amendment) on October 31, 1785, that would impose penalties upon those who
violated hunting laws if they "shall bear a gun out of his [the violator's]
inclosed ground, unless whilst performing military duty." 2 The Papers of
Thomas Jefferson 443-44 (J.P. Boyd, ed. 1950). A similar indication that
"bear arms" was a general description of the carrying of arms by anyone is
found in the 1828 edition of Webster's American Dictionary of the English
Language; where the third definition of bear reads: "[t]o wear; to bear as
a mark of authority or distinction, as, to bear a sword, a badge, a name;
to bear arms in a coat."
We conclude that the phrase "bear arms" refers generally to the carrying or
wearing of arms. It is certainly proper to use the phrase in reference to
the carrying or wearing of arms by a soldier or militiaman; thus, the
context in which "bear arms" appears may indicate that it refers to a
military situation, e.g. the conscientious objector clauses cited by amici
supporting the government. However, amici's argument that "bear arms" was
exclusively, or even usually, used to only refer to the carrying or wearing
of arms by a soldier or militiaman must be rejected.(30) The appearance of
"bear Arms" in the Second Amendment accords fully with the plain meaning of
the subject of the substantive guarantee, "the people," and offers no
support for the proposition that the Second Amendment applies only during
periods of actual military service or only to those who are members of a
select militia. Finally, our view of "bear arms" as used in the Second
Amendment appears to be the same as that expressed in the dissenting
opinion of Justice Ginsburg (joined by the Chief Justice and Justices
Scalia and Souter) in Muscarello v. United States, 118 S.Ct. 1911, 1921
(1998); viz:
"Surely a most familiar meaning [of carrying a firearm] is, as the
Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and
Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . . upon
the person or in the clothing or in a pocket, for the purpose . . . of
being armed and ready for offensive or defensive action in a case of
conflict with another person."
c. "Keep . . . Arms"
Neither the government nor amici argue that "keep . . . Arms" commands a
military connotation.(31) The plain meaning of the right of the people to
keep arms is that it is an individual, rather than a collective, right and
is not limited to keeping arms while engaged in active military service or
as a member of a select militia such as the National Guard.
d. Substantive Guarantee as a Whole
Taken as a whole, the text of the Second Amendment's substantive guarantee
is not suggestive of a collective rights or sophisticated collective rights
interpretation, and the implausibility of either such interpretation is
enhanced by consideration of the guarantee's placement within the Bill of
Rights and the wording of the other articles thereof and of the original
Constitution as a whole.
e. Effect of Preamble
We turn now to the Second Amendment's preamble: "A well-regulated Militia,
being necessary to the security of a free State." And, we ask ourselves
whether this preamble suffices to mandate what would be an otherwise
implausible collective rights or sophisticated collective rights
interpretation of the amendment. We conclude that it does not.
Certainly, the preamble implies that the substantive guarantee is one which
tends to enable, promote or further the existence, continuation or
effectiveness that "well-regulated Militia" which is "necessary to the
security of a free State." As the Court said in Miller, immediately after
quoting the militia clauses of Article 1, § 8 (cl. 15 and 16), "[w]ith
obvious purpose to assure the continuation and render possible the
effectiveness of such forces the declaration and guarantee of the Second
Amendment were made." Id., 59 S.Ct. at 818. We conclude that the Second
Amendment's substantive guarantee, read as guaranteeing individual rights,
may as so read reasonably be understood as being a guarantee which tends to
enable, promote or further the existence, continuation or effectiveness of
that "well-regulated Militia" which is "necessary to the security of a free
State." Accordingly, the preamble does not support an interpretation of the
amendment's substantive guarantee in accordance with the collective rights
or sophisticated collective rights model, as such an interpretation is
contrary to the plain meaning of the text of the guarantee, its placement
within the Bill of Rights and the wording of the other articles thereof and
of the original Constitution as a whole.(32)
As observed in Miller, "the Militia comprised all males physically capable
of acting in concert for the common defense" and "that ordinarily when
called for service these men were expected to appear bearing arms supplied
by themselves." Id., 59 S.Ct. at 818. Miller further notes that " '[i]n all
the colonies . . . the militia systems . . . implied the general obligation
of all adult male inhabitants to possess arms.'" Id. (citation
omitted).(33) There are frequent contemporaneous references to "a well-
regulated militia" being "composed of the body of the people, trained in
arms."(34) Plainly, then, "a well-regulated Militia" refers not to a
special or select subset or group taken out of the militia as a whole but
rather to the condition of the militia as a whole, namely being well
disciplined and trained.(35) And, "Militia," just like "well-regulated
Militia," likewise was understood to be composed of the people generally
possessed of arms which they knew how to use, rather than to refer to some
formal military group separate and distinct from the people at large.(36)
Madison also plainly shared these views, as is reflected in his Federalist
No. 46 where he argued that power of Congress under the proposed
constitution "[t]o raise and support Armies" (art. 1, § 8, cl.12) posed no
threat to liberty because any such army, if misused, "would be opposed [by]
a militia amounting to near half a million of citizens with arms in their
hands" and then noting "the advantage of being armed, which the Americans
possess over the people of almost every other nation," in contrast to "the
several kingdoms of Europe" where "the governments are afraid to trust the
people with arms." The Federalist Papers at 299 (Rossiter, New American
Library). Plainly, Madison saw an armed people as a foundation of the
militia which would provide security for a "free" state, one which, like
America but unlike the "kingdoms of Europe," was not afraid to trust its
people to have their own arms.(37) The militia consisted of the people
bearing their own arms when called to active service, arms which they kept
and hence knew how to use. If the people were disarmed there could be no
militia (well-regulated or otherwise) as it was then understood. That
expresses the proper understanding of the relationship between the Second
Amendment's preamble and its substantive guarantee. As stated in Kates,
Handgun Prohibition and the Original Meaning of the Second Amendment, supra
n.12, "the [second] amendment's wording, so opaque to us, made perfect
sense to the Framers: believing that a militia (composed of the entire
people possessed of their individually owned arms) was necessary for the
protection of a free state, they guaranteed the people's right to possess
those arms." Id. at 217-18. Similarly, Cooley, General Principles of
Constitutional Law (Little, Brown, 1880; 1981 Rothman & Co. reprint)
rejects, as "not warranted by the intent," an interpretation of the Second
Amendment "that the right to keep and bear arms was only guaranteed to the
Militia," and states "[t]he meaning of the provision undoubtedly is, that
the people, from whom the militia must be taken, shall have the right to
keep and bear arms; and they need no permission or regulation of law for
the purpose. But this enables the government to have a well-regulated
militia; for to bear arms implies something more than the mere keeping; it
implies the learning to handle and use them in a way that makes those who
keep them ready for their efficient use." Id. at 271. Much the same thought
was expressed more than one hundred years later in the following passage
from Tribe, American Constitutional Law (3d ed. 2000):
"Perhaps the most accurate conclusion one can reach with any confidence is
that the core meaning of the Second Amendment is a
populist/republican/federalism one: Its central object is to arm "We the
People" so that ordinary citizens can participate in the collective defense
of their community and their state. But it does so not through directly
protecting a right on the part of states or other collectivities,
assertable by them against the federal government, to arm the populace as
they see fit. Rather, the amendment achieves its central purpose by
assuring that the federal government may not disarm individual citizens
without some unusually strong justification consistent with the authority
of the states to organize their own militias. That assurance in turn is
provided through recognizing a right (admittedly of uncertain scope) on the
part of individuals to possess and use firearms in the defense of
themselves and their homes . . . a right that directly limits action by
Congress or by the Executive Branch . . ." Id., Vol. 1, n.221 at 902.
In sum, to give the Second Amendment's preamble its full and proper due
there is no need to torture the meaning of its substantive guarantee into
the collective rights or sophisticated collective rights model which is so
plainly inconsistent with the substantive guarantee's text, its placement
within the bill of rights and the wording of the other articles thereof and
of the original constitution as a whole.
D. History
1. Introduction
Turning to the history of the Second Amendment's adoption, we find nothing
inconsistent with the conclusion that as ultimately proposed by Congress
and ratified by the states it was understood and intended in accordance
with the individual rights model as set out above.
On May 25, 1787, the Federal Convention began meeting in Philadelphia to
craft what would become the United States Constitution. The primary
shortcoming of the Articles of Confederation was that the central
government it provided for was too weak. It was generally recognized that,
although a stronger central government was needed, the central government
was to remain one of limited and enumerated powers only, lest the cure be
worse than the disease. Thus, the challenge was to design a federal
government strong enough to deal effectively with that particular range of
issues requiring federal control, without enabling the federal government
to become an instrument of tyranny. Not surprisingly, political leaders of
that day differed as to the proper balance of these concerns. The
Federalists favored a strong federal government. The Anti-Federalists were
much more suspicious and fearful of a strong federal government and wanted
numerous safeguards in place to protect the people and the states from
being tyrannized and oppressed by the federal government. The Federal
Convention was dominated by the Federalists. On September 17, 1787, the
Convention completed its work and forwarded the Constitution to the
Confederation Congress.
2. The Anti-Federalists' Fears
The Constitution alarmed Anti-Federalists for three reasons relevant to the
debate over the meaning of the Second Amendment.
First, although the proposed federal government appeared to be one of
limited and enumerated powers, the Anti-Federalists feared that it would
someday attempt to infringe one or more of the people's fundamental rights.
To help prevent this, the Anti-Federalists wanted the United States
Constitution, like most of the state Constitutions, to contain a Bill of
Rights.(38)
Second, the Constitution gave the federal government large powers over the
militia, allowing the Congress:
"To provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the
discipline prescribed by Congress;".
U.S. Const. art. 1, § 8, cl. 15, 16. Congress was also given the power " To
raise and support Armies." Id. art. 1 § 8, cl. 12. The states were also
forbidden to keep troops without the consent of Congress. Id. art. 1 , §
10, cl. 3.
The Anti-Federalists feared that the federal government would act or fail
to act so as to destroy the militia, e.g. failure to arm the militia,(39)
disarmament of the militia(40), failure to prescribe training for the
militia(41), creation of a select militia(42) or making militia service so
unpleasant that the people would demand a standing army or select militia.(
43) These concerns over the militia were exacerbated by the third issue:
the federal government's power to maintain a standing army (art. 1, § 8,
cl.12). The Anti-Federalists feared that the federal government's standing
army could be used to tyrannize and oppress the American people.( 44)
Without a militia to defend against the federal government's standing army,
the states and their citizens would be defenseless.(45)
Thus, the Anti-Federalists wanted the Constitution amended in three ways
prior to ratification: 1) addition of a Bill of Rights; 2) recognition of
the power of the states to arm and train their militias;(46) and 3)
curtailment of the federal government's power to maintain a standing army.
3. The Federalist Response
The Federalists, of course, wanted the Constitution to be ratified. Because
the Constitution could only be ratified unchanged, this forced the
Federalists to oppose all attempts to alter it prior to ratification. The
Federalists argued that no bill of rights was needed for three reasons: 1)
it was beyond the purview of the federal government, intended to be one of
limited and enumerated powers, to infringe upon fundamental rights;(47) 2)
any enumeration of fundamental rights might imply that the federal
government had power to infringe upon those not mentioned;(48) and 3) the
American people were used to being free-they would not allow their rights
to be infringed.(49)
Realizing that the Anti-Federalists' two other concerns (federal control of
arming and training of the militia and maintenance of a standing army)
boiled down to a fear that the federal government's standing army would
oppress a defenseless people, the Federalists' responded that: 1) the
American people are armed and hence could successfully resist an oppressive
standing army;(50) and 2) federal militia powers obviated the need for, or
minimized the likelihood of, a large standing army being kept in
existence.(51)
The Federalists also responded to the militia issue by arguing that the
states had concurrent power to arm the militia, but this position was
undermined when the Anti-Federalists invited the Federalists to put that
state power in writing and that would have necessitated the return to the
drawing board in another Constitutional convention that the Federalists
were committed to avoiding.(52)
The Federalist position as to the militia and standing army issues depended
upon the people being armed notwithstanding that the Constitution did not
guarantee the right of the people to be armed.(53)
5. State Ratifications
Congress forwarded the Constitution to the states on September 28, 1787.
State conventions began considering the Constitution later that year. By
April 28, 1788, Delaware, New Jersey, Georgia, Connecticut and Maryland had
ratified the Constitution without proposing any additions or changes to it.
The first sign of trouble in a state convention was in Pennsylvania in
December of 1787.
a. Pennsylvania
In the Pennsylvania convention, the Federalists outnumbered the Anti-
Federalists about two to one. Not surprisingly, then, on December 12, 1787,
the Pennsylvania convention ratified the Constitution by a vote of 46 to
23. The convention did not propose any changes to the Constitution.
However, the disenchanted Anti-Federalists, known as the Pennsylvania
Minority, explained that they would have agreed to the Constitution if it
had been amended to reflect fourteen principles, among which were the
following:
"7. That the people have a right to bear arms for the defense of themselves
and their own state, or the United States, or for the purpose of killing
game; and no law shall be passed for 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 power.
....
11. That the power of organizing, arming, and disciplining the militia (
the manner of disciplining the militia to be prescribed by Congress) remain
with the individual states, and that Congress shall not have authority to
call or march any of the militia out of their own state, without the
consent of such state and for such length of time only as such state shall
agree."
2 The Documentary History of the Ratification of the Constitution 623-24 (
Merrill Jensen, ed. 1976). Note that "bear arms" clearly pertains to
private, civilian wearing or carrying of arms and the power of the state to
organize, arm and discipline the militia is in a separate section,
indicating that the Anti-Federalists viewed these issues as distinct.
b. Massachusetts
Massachusetts ratified the Constitution on February 7, 1788, by a vote of
187 to 168. Although the convention proposed nine amendments, none of them
has relevance to the issues with which we are concerned. However, during
the Massachusetts convention, Samuel Adams proposed the following
amendments:
"And that the said Constitution be never construed to authorize Congress to
infringe the just liberty of the press, or the rights of conscience; or to
prevent the people of the United States, who are peaceable citizens, from
keeping their own arms; or to raise standing armies, unless when necessary
for the defense of the United States, or of some one or more of them; or to
prevent the people from petitioning, in a peaceable and orderly manner, the
federal legislature, for a redress of grievances; or to subject the people
to unreasonable searches and seizures of their persons, papers or
possessions."
Debates of the Massachusetts Convention of 1788 86-87, 266 (Boston, 1856).
This is another indication that the Anti-Federalists desired protection for
the right of all peaceful citizens to keep arms as well as a limitation on
the power of the federal government to maintain a large standing army.
c. South Carolina
The South Carolina Convention ratified the Constitution on May 23, 1788,
stating two understandings and proposing two amendments, none of which are
relevant to the issues before us.
d. New Hampshire
After adjourning on February 22, 1788, to avoid rejection of the
Constitution, New Hampshire ratified the Constitution on June 21, 1788, by
a vote of 57 to 47. The New Hampshire convention proposed twelve
amendments, the first nine of which are identical to Massachusetts'. New
Hampshire's proposed Amendments 10 and 12 were as follows:
"X. That no standing army shall be kept up in time of peace, unless with
the consent of three-fourths of the members of each branch of Congress; nor
shall soldiers, in time of peace, be quartered upon private houses, without
the consent of the owners.
....
XII. Congress shall never disarm any citizen, unless such as are or have
been in actual rebellion."
1 Jonathan Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 326 (2d ed., 1836). New Hampshire
sought to protect the individual right of all citizens to have arms and,
separately, to limit the power of the federal government to maintain a
large standing army.
e. Virginia
On June 25, 1788, the Virginia convention ratified the Constitution by a
vote of 89 to 79. The convention proposed a bill of rights containing
twenty separate provisions and, in a separate section, proposed twenty
amendments to the Constitution. The seventeenth part of Virginia's proposed
Bill of Rights and the ninth and eleventh parts of its proposed amendments
to the Constitution were as follows:
[Bill of Rights section.]
17th. That the people have a right to keep and bear arms; that a well-
regulated militia, composed of the body of the people trained to arms, is
the proper, natural, and safe defence of a free state; that standing
armies, in time of peace, are dangerous to liberty, and therefore ought to
be avoided, as far as the circumstances and protection of the community
will admit; and that, in all cases, the military should be under strict
subordination to, and governed by, the civil power.
[Amendments to the Constitution section.]
9th. That no standing army, or regular troops, shall be raised, or kept up,
in time of peace, without the consent of two thirds of the members present,
in both houses.
11th. That each state respectively shall have the power to provide for
organizing, arming, and disciplining its own militia, whensoever Congress
shall omit or neglect to provide for the same. That the militia shall not
be subject to martial law, except when in actual service, in time of war,
invasion, or rebellion; and when not in the actual service of the United
States, shall be subject only to such fines, penalties, and punishments, as
shall be directed or inflicted by the laws of its own state.
3 Jonathan Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 658, 660 (2d ed., 1836). The bill of
rights provision, after stating "[t]hat the people have a right to keep and
bear arms," goes on to make general, philosophical observations about the
militia and standing armies. However, these general, philosophical
observations are given their legal effectuation through separate, specific
provisions apart from the Bill of Rights. The Virginia convention realized
that statements in the proposed Bill of Rights that militias are good and
standing armies are bad fell short of adding to the power of the states or
subtracting from the power of the federal government. In the separate and
distinct amendments section, the states were explicitly given militia
powers and the federal government was forbidden to maintain a standing army
unless other specific criteria were satisfied.
f. New York
On July 26, 1788, New York ratified the Constitution by a vote of 30 to 27.
New York incorporated an extensive Declaration of Rights and thirty- three
proposed amendments to the Constitution into its ratification. The relevant
portions of each are:
[Declaration of Rights section.]
"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, is the
proper, natural, and safe defence of a free state.
...
That standing armies, in time of peace, are dangerous to liberty, and ought
not to be kept up, except in cases of necessity; and that at all times the
military should be under strict subordination to the civil power.
[Amendments to the Constitution section.]
That no standing army or regular troops shall be raised, or kept up, in
time of peace, without the consent of two thirds of the senators and
representatives present in each house."
1 Jonathan Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 328, 330 (2d ed., 1836). Note that: 1)
the philosophical declaration concerning the preferability of a militia,
which follows the statement "[t]hat the people have a right to keep and
bear arms," is not effectuated in the amendments section by a grant of
power to the states to maintain a militia; and 2) there is a separate
clause in the Declaration of Rights section regarding standing armies which
is effectuated by a separate proposed amendment to the Constitution. This
is another example that philosophical declarations alone were considered
insufficient to subtract from the federal government's power or to add to
the states' power.
g. North Carolina
On August 1, 1788, North Carolina refused to ratify the Constitution until
a bill of rights and other amendments were added. The North Carolina
convention demanded the same Bill of Rights and amendments as proposed by
Virginia. It was not until November 21, 1789, after the Bill of Rights was
forwarded by the First Congress to the states, that North Carolina finally
ratified the Constitution by a vote of 194-77.
h. Rhode Island
Rhode Island did not ratify the Constitution until May 29, 1790, and then
by a vote of 34-32. Rhode Island incorporated a bill of rights into its
ratification and proposed twenty-one amendments to the Constitution. The
apposite portions of each are:
[Declaration of Rights section.]
"XVII. 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, is the proper, natural, and safe defence of a free state; that the
militia shall not be subject to martial law, except in time of war,
rebellion, or insurrection; that standing armies, in time of peace, are
dangerous to liberty, and ought not to be kept up, except in cases of
necessity; and that, at all times, the military should be under strict
subordination to the civil power; that, in time of peace, no soldier ought
to be quartered in any house without the consent of the owner, and in time
of war only by the civil magistrates, in such manner as the law directs.
[Amendments to the Constitution section.]
XII. As standing armies, in time of peace, are dangerous to liberty, and
ought not to be kept up, except in cases of necessity, and as, at all
times, the military should be under strict subordination to the civil
power, that, therefore, no standing army or regular troops shall be raised
or kept up in time of peace."
Id. at 335-36. Note how even the amendment regarding standing armies
contains two philosophical declarations before getting to the substantive
restriction on federal power, namely that no army shall be maintained
during peacetime.
6. Proposal of Second Amendment
By mid 1788, the required nine states had ratified the Constitution, and it
was clear the Federalists had won a major victory. But by the spring of
1789, the Anti-Federalists had succeeded in persuading many that a bill of
rights was absolutely necessary. Some Anti-Federalists did continue to
argue for additional, structural changes to the Constitution, but most were
primarily concerned with a bill of rights. At the same time, while some
Federalists continued to reject any changes to the Constitution, most
softened their opposition to a bill of rights, mindful of the strong public
support for it and aware that a bill of rights would not materially affect
the plan of government they had worked so diligently to implement. See
President George Washington, Inaugural Address, April 30, 1789 ( excerpt
reprinted in Young, supra note 34, at 642) ("I assure myself that whilst
you carefully avoid every alteration which might endanger the benefits of
an united and effective government, or which ought to await the future
lessons of experience; a reverence for the characteristic rights of
freemen, and a regard for the public harmony, will sufficiently influence
your deliberations on the question how far the former can be more
impregnably fortified, or the latter be safely and advantageously
promoted."); Letter from Charles Smith to Tench Coxe (October 18, 1788) (
excerpt reprinted in Young, supra note 34, at 542) ("It seems, therefore,
to be the wish of the moderate and reasonable men of all parties that some
necessary explanations should take place, in order to quiet the minds of
our dissenting fellow citizens, and to introduce union and harmony
throughout the state. Attention to this subject ought to be considered as a
duty incumbent upon our first federal Representatives."). Thus, as there
sometimes is after a hard-fought political struggle, most of the
combatants, for the good of the country, sought middle ground.
Federalist James Madison ran for a seat in the First Congress, and because
of the strong public support for a bill of rights clarified his own support
for it:
"The offer of my services to the district, rests on the following grounds:-
That although I always conceived the constitution might be improved, yet I
never could see in it, as it stands, the dangers which have alarmed many
respectable citizens; that I held it my duty therefore, whilst the
constitution remained unratified, and it was necessary to unite the various
opinions, interests and prejudices of the different states, in some one
plan, to oppose every previous amendment, as opening a door for endless and
dangerous contentions among the states, and giving an opportunity to the
secret enemies of the union to promote its dissolution:- That the change of
circumstances produced by the secure establishment of the plan proposed,
leaves me free to espouse such amendments as will, in the most satisfactory
manner, guard essential rights, and will render certain vexatious abuses of
power impossible . . ."
James Madison, Extract of a letter from the Hon. JAMES MADISON, jun. to his
friend in this county, Fredericksburg Virginia Herald, January 29, 1788
(reprinted in Young, supra note 34, at 609). The Federalists ended up with
a majority in both the House and the Senate. But as the eventual adoption
of a bill of rights shows, many Federalists were as open to a bill of
rights as James Madison himself was. See Letter from James Madison to
Edmund Pendleton (April 8, 1789) (excerpt reprinted in Young, supra note
34, at 640) ("The subject of amendments has not yet been touched-From
appearances there will be no great difficulty in obtaining reasonable ones.
It will depend however entirely on the temper of the federalists, who
predominate as much in both branches, as could be wished. Even in this
State [Virginia], notwithstanding the violence of its antifederal symptoms,
three of its six representatives at least will be zealous friends to the
Constitution, and it is not improbable that a fourth will be of the same
description."). The Anti-Federalists sensed that although the tide had
turned their way as to alterations that would secure individual liberty,
the prospects for other changes to the Constitution were dim. See Letter
from Richard Henry Lee to Patrick Henry ( May 28, 1789) (excerpt reprinted
in Young, supra note 34, at 644)("I think, from what I hear and see, that
many of our amendments will not succeed, but my hopes are strong that such
as may effectually secure civil liberty will not be refused.").
a. Legislative History
On June 8, 1789, Virginia Congressman James Madison proposed several
alterations to the Constitution in the First Congress. In his address to
the House, Madison explained his rationale in proposing the changes:
"I wish, among other reasons why something should be done, that those who
have been friendly to the adoption of this constitution may have the
opportunity of proving to those who were opposed to it that they were as
sincerely devoted to liberty and a Republican Government, as those who
charged them with wishing the adoption of this constitution in order to lay
the foundation of an aristocracy or despotism. It will be a desirable thing
to extinguish from the bosom of every member of the community, any
apprehension that there are those among his countrymen who wish to deprive
them of the liberty for which they valiantly fought and honorably bled. And
if there are amendments desired of such a nature as will not injure the
constitution, and they can be ingrafted so as to give satisfaction to the
doubting part of our fellow-citizens, the friends of the Federal Government
will evince that spirit of deference and concession for which they have
hitherto been distinguished.
....
I should be unwilling to see a door opened for a re-consideration of the
whole structure of the Government-for a re-consideration of the principles
and the substance of the powers given; because I doubt, if such a door were
opened, we should be very likely to stop at that point which would be safe
to the Government itself. But I do wish to see a door opened to consider,
so far as to incorporate those provisions for the security of rights,
against which I believe no serious objection has been made by any class of
our constituents: such as would be likely to meet with the concurrence of
two-thirds of both Houses, and with the approbation of three-fourths of the
State Legislatures."
James Madison, House of Representatives, June 8, 1789 (excerpt reprinted in
Young, supra note 34, at 651-53). Madison proposed to insert, in Article 1,
Section 9, between its Clauses 3 and 4, the following clause ( among
others):
"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."(54)
Id. at 654-55. Article 1, Section 9 contains nothing but restrictions upon
the power of the federal government; and its Clauses 2 and 3 relate only to
individual rights (habeas corpus, bill of attainder and ex post facto).
Madison's proposal was eventually submitted to a House committee of eleven
members, of which Madison was one. That committee issued its report on July
28, 1789. The clause that would become the Second Amendment then read:
"A well regulated militia, composed of the body of the people, being the
best security of a free state, the right of the people to keep and bear
arms shall not be infringed, but no person religiously scrupulous shall be
compelled to bear arms." House of Representatives, Proceedings on
Amendments, July 28, 1789 (reprinted in Young, supra note 34, at 680-82).
Thus, the philosophical declaration was moved to precede the substantive
guarantee and "composed of the body of the people" was added just after "
militia."
The House began its consideration of what would become the Second Amendment
on August 17, 1789. Congressman Gerry moved to strike the religiously
scrupulous exemption. See House of Representatives, Debate, August 17, 1789
(excerpt reprinted in Young, supra note 34, at 695-99). This motion was
defeated by a vote of 24-22; however, this language would later be dropped
by the Senate. Opponents of the individual rights model find hope in the
initial appearance of the religiously scrupulous exemption and comments
made by Congressman Gerry in attempting to excise it. They argue that
because "bear arms" has a military connotation in the religiously
scrupulous clause, it necessarily carries the same meaning in the
substantive guarantee. This construction is supported, we are told, by
Gerry's objection. Gerry feared that the federal government would use the
clause to destroy the militia by declaring a large number of people
religiously scrupulous and, therefore, ineligible for militia service. This
would pave the way for oppression by the federal government's standing
army.
"This declaration of rights, I take it, is intended to secure the people
against the mal-administration of the Government; if we could suppose that,
in all cases, the rights of the people would be attended to, the occasion
for guards of this kind would be removed. Now, I am apprehensive, sir, that
this clause would give an opportunity to the people in power to destroy the
constitution itself. They can declare who are those religiously scrupulous,
and prevent them from bearing arms.
What, sir, is the use of a militia? It is to prevent the establishment of a
standing army, the bane of liberty. Now, it must be evident, that, under
this provision, together with their other powers, Congress could take such
measures, with respect to a militia, as to make a standing army necessary.
Whenever governments mean to invade the rights and liberties of the people,
they always attempt to destroy the militia, in order to raise an army upon
their ruins."
Id. at 695-96. Gerry concluded by proclaiming, "[n]ow, if we give a
discretionary power to exclude those from militia duty who have religious
scruples, we may as well make no provision on this head."(55) The inference
urged is that the only purpose of the substantive guarantee was to secure
the right of militia members to bear arms in a military context. This
interpretation of Gerry's statements appears somewhat strained. We think
that Gerry's comments manifested his opinion that: 1) it takes a well
regulated militia, not the mere private possession of firearms, to obviate
the need for a standing army; and 2) an armed populace offers much less
protection against a standing army than a well regulated militia. If Gerry
saw any conflict between the amendment's substantive guarantee and the
destruction of the militia which was supposedly enabled by the religiously
scrupulous clause, he did not say so. In fact, Gerry's objection assumes
that the amendment does not increase state power over the militia and that
the preamble is but a philosophical declaration as to the necessity of a
well regulated militia that does nothing to disturb Art. 1, § 8, cl. 16, to
which Gerry must be referring to as the source of the power of the federal
government to destroy the militia. Gerry's concern was directed to the
creation of a standing army; he does not express any worry that the feared
purging of the rolls of the militia would enable the federal government to
confiscate privately owned firearms, no doubt because the substantive
guarantee applies to all the people, not just those that at a given time
might comprise the militia. Properly understood, Gerry's remarks are not
inconsistent with the individual rights view of the Second Amendment.
Gerry was not the only member of the First Congress to express concern over
the religiously scrupulous clause. Three days later, on August 20, 1789,
Congressman Scott complained of it as well.
"Mr. Scott objected to the clause in the sixth amendment, 'No person
religiously scrupulous shall be compelled to bear arms.' He observed that
if this becomes part of the constitution, such persons can neither be
called upon for their services, nor can an equivalent be demanded; it is
also attended with still further difficulties, for a militia can never be
depended upon. This would lead to the violation of another article in the
constitution, which secures to the people the right of keeping arms, and in
this case recourse must be had to a standing army."
House of Representatives, Debates, August 20, 1789 (excerpt reprinted in
Young, supra note 34, at 703). Congressman Boudinot opposed striking the
clause, in part because such action would imply the federal government is
going to "compel all its citizens to bear arms." Id. The House ended up
adding "in person" to the end of the clause. Id. We find no meaningful
support, in Congressman Scott's statement, for either the states' rights or
the sophisticated collective rights models. Scott was not concerned, as
Gerry was, that the federal government would use the religiously scrupulous
clause as a ruse to exclude everyone from militia service. Scott was
worried that too many individual Americans would avail themselves of the
clause's protection and that this would cause the militia to be so weakened
that the federal government would have no choice but to maintain a standing
army. It is not exactly clear where Scott found violation of the people's
right to keep arms. The lack of a dependable militia both leads to Scott's
hypothetical violation and necessitates recourse to a standing army. It is
possible that Scott found, in the amendment's philosophical declaration,
some sort of right of the people to be free from a standing army.(56) In
any case, this cryptic passage does not plainly lend support to any of the
Second Amendment models. The only change that resulted from this discussion
was the addition of the words "in person" at the end of the amendment and,
as mentioned, the entire religiously scrupulous clause was later deleted by
the Senate.
Congressman Burke repeatedly proposed that a clause be added to the
amendment that would have required the consent of two-thirds of both houses
of Congress to maintain a standing army in time of peace. This proposal was
defeated by a margin of almost two to one. House of Representatives,
Debates, August 17, 1789 (excerpt reprinted in Young, supra note 34, at
697-98).
On August 24, 1789, the House completed its work on the proposed amendments
and forwarded them to the Senate. At this time, the amendment read:
"A well regulated militia, composed of the body of the people, being the
best security of a free state, the right of the people to keep and bear
arms, shall not be infringed, but no one religiously scrupulous of bearing
arms, shall be compelled to render military service in person."
House of Representatives, Proceedings, August 24, 1789 (excerpt reprinted
in Young, supra note 34, at 707).
The Senate, which had the House action before it from August 25 through
September 9, 1789, made three changes: 1) the words "composed of the body
of the people" were stricken; 2) the words "the best" were replaced by "
necessary to the"; and 3) the entire religiously scrupulous clause was
stricken. See The Complete Bill of Rights 173-76 (Neil H. Cogan, ed.,
1997). The Senate debates were conducted in secret, so there is no direct
evidence of why these changes were made. The Senate rejected a proposed
amendment to add the words "for the common defense" just after "the right
of the people to keep and bear arms". Id. Like the House, the Senate
rejected a proposed amendment that would have required the consent of two-
thirds of both houses of Congress to maintain a standing army in time of
peace. Id. The Senate on September 8, 1789 also refused to adopt an
amendment that would have given the states power to arm and train their
militias.(57)
The most significant Senate action is the rejection of the amendment that
would have granted the power of the states to arm and train their own
militias. This is, of course, the precise effect the states' rights model
attributes to the Second Amendment. Proponents of that model argue that the
rejection of that amendment simply indicates that this concern was already
addressed, i.e. that the rejected amendment would have been mere
surplusage. This is highly implausible, particularly given the Second
Amendment's placement within the Bill of Rights, its "the right of the
people" language identical to that of the First and Fourth Amendments, and
its lack of any reference to the power or rights of the states, all as
contrasted to the direct and explicit state power language of the rejected
amendment. Moreover, this surplusage explanation also ignores that in the
state conventions the right to keep and bear arms was always in the Bill of
Rights section of proposed changes, while the state power to arm and train
the militia was always in a separate section or at least a separate
article.
Not surprisingly, the significance of the Senate's other alterations or
rejections is open to question. It could be argued that the striking of the
words "composed of the body of the people" supports the sophisticated
collective rights view that "militia" in the Second Amendment really means
" select militia" and, therefore, pertains only to our modern national
guard. However, there is an abundance of historical evidence that indicates
the Anti-Federalists abhorred the idea of a select militia every bit as
much as a standing army.(58) Clearly, if the Anti-Federalists believed the
amendment offered any support for the formation of a select militia, or
only recognized the right of members of the select militia to keep and bear
arms while on active duty, they would have vociferously opposed it. It must
be remembered that the entire goal of submitting amendments was to pacify,
not infuriate, the Anti-Federalists. This suggests that the words "composed
of the body of the people" were stricken as unnecessary surplusage.
The replacement of "best" with "necessary to the" strengthens the
philosophical declaration's support for a militia. As the rejection of
standing army amendments in the House and Senate, as well as subsequent
history, show, even this bolder statement did not serve to limit the power
of the federal government to maintain a large standing army. Probably the
only bearing this change has on the task before this Court is that it makes
the sophisticated collective rights model's contention that "militia"
really means national guard or "select militia" even more questionable.
Anti-Federalists would never have accepted that a select militia was the
best security (or anything but a threat to) "a free state," much less
necessary to the security of "a free state."
Opponents of the individual rights model claim the Senate refused to add "
for the common defense" after the amendment's substantive guarantee because
those words were unnecessary surplusage. Given the amendment's text and
history, which, almost without exception, support the individual rights
view, we believe it much more likely that the Senate rejected this language
because it potentially posed the risk of an interpretation contracting the
substantive guarantee.
Finally, perhaps the least relevant Senate change is the deletion of the
religiously scrupulous clause. This may well have been because the Senate
felt that the clause was not sufficiently germane to an amendment whose
core purpose was to state the affirmative rights of individuals as opposed
to limitations on their potential obligations, or, relatedly, that the
clause dealt with a relatively minor, collateral matter which was not worth
the controversy and/or confusion it had generated or could generate. Or,
the Senate might simply have felt (as did Congressman Benson, see note 55
supra) this would be better left to the wisdom and discretion of a future
Congress.
The House approved the Senate version of the amendment, and Congress
forwarded it to the states along with the rest of the Bill of Rights on
September 26, 1789.(59)
b. Political Discourse
At the same time the above legislative history was being made, prominent
Americans were writing in the newspapers and to each other. These writings
provide some insight into the nature (individual or collective) of the
Second Amendment.
Anti-Federalist William Grayson expressed concern to fellow Anti-
Federalist Patrick Henry that the only amendments that would be approved
are those, like Madison's, that recognize individual rights:
"I am exceedingly sorry it is out of my power to hold out to you any
flattering expectations on the score of amendments; it appears to me that
both houses are almost wholly composed of federalists; those who call
themselves Antis are so extremely lukewarm as scarcely to deserve the
appellation: Some gentlemen here from motives of policy have it in
contemplation to effect amendments which shall effect personal liberty
alone, leaving the great points of the judiciary, direct taxation &c, to
stand as they are . . . . Last Monday a string of amendments were presented
to the lower House; these altogether respected personal liberty . . . ."
Letter from William Grayson to Patrick Henry (June 12, 1789) (excerpt
reprinted in Young, supra note 34, at 668-69).
Federalist Fisher Ames was pleased that Madison's amendments primarily
concerned noncontroversial individual rights.
"Mr. Madison has inserted, in his amendments, the increase of
representatives, each State having two at least. The rights of conscience,
of bearing arms, of changing the government, are declared to be inherent in
the people. Freedom of the press, too. There is a prodigious great dose of
medicine. But it will stimulate the stomach as little as hasty- pudding. It
is rather food than physic. Am [sic] immense mass of sweet and other herbs
and roots for a diet drink."
Letter from Fisher Ames to George Richards Minot (June 12, 1789) (excerpt
reprinted in Young, supra note 34, at 668).
Federalist Tench Coxe, in a widely republished article, described what
would become the Second Amendment this way:
"As civil rulers, not having their duty to the people, duly before them,
may attempt to tyrannize, and as the military forces which shall be
occasionally raised to defend our country, might pervert their power to the
injury of their fellow-citizens, the people are confirmed by the next
article in their right to keep and bear their private arms."
A Pennsylvanian [Federalist Tench Coxe], REMARKS on the first part of the
AMENDMENTS to the FEDERAL CONSTITUTION, moved on the 8th instant in the
House of Representatives, Philadelphia Federal Gazette, June 18, 1789 (
excerpt reprinted in Young, supra note 34, at 671). That same day, Coxe
wrote to Madison, discussing public reaction to Madison's proposed
amendments and his own comments thereon which appeared in the Federal
Gazette. See Young, supra note 34, at 672. Madison responded:
"Accept my acknowledgments for your favor of the 18th. instant. The printed
remarks inclosed in it are already I find in the Gazettes here. It is much
to be wished that the discon[ten]ted part of our fellow Citizens could be
reconciled to the Government they have opposed, and by means as little as
possible unacceptable to those who approve the Constitution in its present
form. The amendments proposed in the H. of Reps. had this twofold object in
view; besides the third one of avoiding all controvertible points which
might endanger the assent of 2/3 of each branch of Congs and 3/4 of the
State Legislatures. How far the experiment may succeed in any of these
respects, is wholly uncertain. It will however be greatly favored by
explanatory strictures of a healing tendency, and is therefore already
indebted to the co-operation of your pen."
Letter from James Madison to Tench Coxe (June 24, 1789) (excerpt reprinted
in Young, supra note 34, at 673-74). Thus, consistent with his other
statements, Madison seems to have endorsed Coxe's individual rights
explanation of what would become the Second Amendment. Note that Coxe made
no mention of the philosophical declaration regarding a well regulated
militia, but only referred to the provision's substantive guarantee and
also that Coxe's reference to "private arms" is essentially inconsistent
with both the states' rights and sophisticated collective rights models.
Opponents of the individual rights view dispute that Madison's letter was
an endorsement of Coxe's explanation of the amendments, claiming that
Madison disagreed with Coxe's explanation of the right of conscience. In
other words, they say that Madison was just being polite to Coxe for his
attempt to explain the amendments and may not have agreed with all of the
positions Coxe took. Two problems with this view are that there is no
evidence that anybody disagreed with Coxe's explanation of the Second
Amendment and that Madison's notes for his speech supporting the amendments
indicate that they "relate 1st to private rights". James Madison, Notes for
speech in Congress supporting Amendments (June 8, 1789) ( reprinted in
Young, supra note 34, at 645).
Joseph Jones, in a letter to James Madison, wrote:
"I thank you for the copy of the amendments proposed to the constitution
which you lately inclosed to me-they are calculated to secure the personal
rights of the people so far as declarations on paper can effect the
purpose, leaving unimpaired the great Powers of the government-they are of
such a nature as to be generally acceptable and of course more likely to
obtain the assent of Congress that wod. any proposition tending to separate
the powers or lessen them in either branch."
Letter from Joseph Jones to James Madison (June 24, 1789) (excerpt
reprinted in Young, supra note 34, at 673). Surely Mr. Jones would have
distinguished an amendment that did not secure "personal rights."
Anti-Federalist Samuel Nasson recognized that the amendment guaranteed the
right of individuals to keep arms for any lawful purpose.
"I find that Amendments are once again on the Carpet. I hope that such may
take place as will be for the Best Interest of the whole[.] A Bill of
rights well secured that we the people may know how far we may Proceade in
Every Department[,] then their [sic] will be no Dispute between the people
and rulers[.] [I]n that may be secured the right to keep arms for Common
and Extraordinary Occations such as to secure ourselves against the wild
Beast and also to amuse us by fowling and for our Defence against a Common
Enemy[.] [Y]ou know to learn the Use of arms is all that can Save us from a
forighn foe that may attempt to subdue us[,] for if we keep up the Use of
arms and become well acquainted with them we Shall allway be able to look
them in the face that arise up against us[,] for it is impossible to
Support a Standing armey large Enough to Guard our Lengthy Sea Coast[.]"
Letter from Samuel Nasson to George Thatcher (July 9, 1789) (excerpt
reprinted in Young, supra note 34, at 796-97) (emphasis added).
While Congressman Fisher Ames, a very strong Federalist, was pleased that
Madison's amendments seemed unlikely to cause discord, he also expressed
chagrin that the amendments were so focused on protecting the rights of the
rabble that they did not belong in the Constitution.
"We have had the amendments on the tapis, and referred them to a committee
of one from a State. I hope much debate will be avoided by this mode, and
that the amendments will be more rational, and less ad populum, than
Madison's. It is necessary to conciliate, and I would have amendments. But
they should not be trash, such as would dishonor the Constitution, without
pleasing its enemies. Should we propose them, North Carolina would accede.
It is doubtful, in case we should not."
Letter from Fisher Ames to George Richards Minot (July 23, 1789) (excerpt
reprinted in Young, supra note 34, at 679).
Congressman William L. Smith viewed the Bill of Rights as recognizing
individual rights, not the structure of government.
"The Committee on amendmts. have reported some, which are thought
inoffensive to federalists & may do some good on the other side: N. Car[
olin]a. only wants some pretext to come into the Union, & we may afford
that pretext by recommending a few amendments.
There appears to be a disposition in our house to agree to some, which will
more effectually secure private rights, without affecting the structure of
Govt."
Letter from William L. Smith to Edward Rutledge (August 9, 1789) (excerpt
reprinted in Young, supra note 34, at 798) (emphasis added).
Pennsylvania Congressman Frederick A. Muhlenberg believed the Bill of
Rights would placate "our Minority in Pennsylvania."
"Altho' I am sorry that so much Time has been spent in this Business [the
Bill of Rights], and would much rather have had it postponed to the next
Session, yet as it now is done I hope it will be satisfactory to our State,
and as it takes in the principal Amendments which our Minority had so much
at Heart, I hope it may restore Harmony & unanimity amongst our fellow
Citizens . . . ."
Letter from Frederick A. Muhlenberg to Benjamin Rush (August 18, 1789) (
excerpt reprinted in Young, supra note 34, at 799) (emphasis added). Recall
that the Pennsylvania Minority proposed what was indisputably an individual
right to keep and bear arms.
Some Anti-Federalists were upset that Federalist James Madison was getting
all the credit for proposing the Bill of Rights. They believed much of this
credit was due Samuel Adams. Recall that Adams unsuccessfully proposed his
own set of amendments to the Massachusetts Convention (and was much
criticized for making the attempt).
"It may well be remembered that the following 'amendments' to the new
constitution for these United States, were introduced to the convention of
this commonwealth by its present Lieutenant Governor, that venerable
patriot, SAMUEL ADAMS.-It was his misfortune to have been misconceived, and
the proposition was accordingly withdrawn-lest the business of the
convention (the session of which was then drawing to a period) might be
unexpectedly protracted. His enemies triumphed exceedingly, and affected to
represent his proposal as not only an artful attempt to prevent the
constitution being adopted in this state, but as an unnecessary and
improper alteration of a system, which did not admit of improvements. To
the honor of this gentlemen's penetration, and of his just way of thinking
on this important subject, every one of his intended alterations, but one,
have been already reported by the committee of the House of
Representatives in Congress, and most probably will be adopted by the
federal legislature. In justice therefore to that long tried Republican,
and his numerous friends, you gentlemen, are requested to re-publish his
intended alterations, in the same paper that exhibits to the public, the
amendments which the committee have adopted, in order that they may be
compared together."
Letter from Mssrs. Adams & Nourse to the Editor of the Boston Independent
Chronicle, Philadelphia Independent Gazetteer, August 20, 1789 (reprinted
in Young, supra note 34, at 701-702). This is significant because Adams'
amendments prohibited the constitution from ever being construed to "
prevent the people of the United States who are peaceable citizens, from
keeping their own arms." Id. This language is not at all susceptible to the
states' rights or sophisticated collective rights views.
Many Anti-Federalists supported the Bill of Rights, notwithstanding that it
fell far short of delivering what they had fought for in the state
conventions. But at least one famous Anti-Federalist was enraged that the
amendments did not alter the balance of power between the federal and state
governments, particularly as to control over the militia.
"What would be your opinion of the man who, living where thieves were so
numerous and vigilant as to improve every opportunity of plunder, should go
to sleep at night in thoughtless security, with his doors wide open . . .
Similar would be the conduct of the people of the United States, if they
rest the security of their invaluable privileges upon the partial
amendments making by Congress to the new constitution: for although many of
these amendments are very proper and necessary, yet whilst the constitution
is suffered to retain powers that may not only defeat their salutary
operation, but may, and incontrovertibly will be so decisively injurious as
to sweep away every vestige of liberty; it is an insult upon the
understanding and discernment of the people to flatter them with the secure
enjoyment of privileges, that are held by so precarious and transient a
tenure.
Besides, some of these limited, insecure amendments, which, to a
superficial observer, seem to contain useful provisions, when examined with
attention, are found to be delusive and inoperative. I will instance two or
three of them.
....
Article 5th of the proposed amendments-'A well regulated militia, composed
of the body of the people, being the best security of a free state, the
right of the people to keep and bear arms, shall not be infringed, &c.' It
is remarkable that this article only makes the observation, 'that a well
regulated militia, composed of the body of the people, is the best security
of a free state;' it does not ordain, or constitutionally provide for, the
establishment of such a one. The absolute command vested by other sections
in Congress over the militia, are not in the least abridged by this
amendment. The militia may still be subjected to martial law and all its
concomitant severities, and disgraceful punishments, may still be marched
from state to state and made the unwilling instruments of crushing the last
efforts of expiring liberty."
Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, September
9, 1789 (excerpt reprinted in Young, supra note 34, at 711-12). Extreme
Anti-Federalists like the Centinel would not be placated by mere
recognition of a right about which the Federalists and Anti-Federalists
were in agreement: the right of the people to keep and bear arms. In the
Centinel's view, as long as the federal government had such extensive power
over the militia, the people's liberties were not safe. The Centinel simply
rejected the Federalists repeated argument that there was no need to worry
about a standing army as long as individuals were armed. The Centinel also
correctly observed that the amendment's preamble did nothing to alter the
balance (or imbalance) of power between the state and federal governments
as to the militia.
8. 19th Century Commentary
The great Constitutional scholars of the 19th Century recognized that the
Second Amendment guarantees the right of individual Americans to possess
and carry firearms. We list their contributions in the order in which they
were made. First, St. George Tucker:
"8. 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. Amendments to C.U.S. Art. 4.
This may be considered as the true palladium of liberty. . . . The right of
self defence is the first law of nature: in most governments it has been
the study of rulers to confine this right within the narrowest limits
possible. Wherever standing armies are kept up, and the right of the people
to keep and bear arms is, under any colour or pretext whatsoever,
prohibited, liberty, if not already annihilated, is on the brink of
destruction. In England, the people have been disarmed, generally, under
the specious pretext of preserving the game: a never failing lure to bring
over the landed aristocracy to support any measure, under that mask, though
calculated for very different purposes. True it is, their bill of rights
seems at first view to counteract this policy: but the right of bearing
arms is confined to protestants, and the words suitable to their condition
and degree, have been interpreted to authorise the prohibition of keeping a
gun or other engine for the destruction of game, to any farmer, or inferior
tradesman, or other person not qualified to kill game. So that not one man
in five hundred can keep a gun in his house without being subject to a
penalty."
1 St. George Tucker, Blackstone's Commentaries: with Notes of Reference, to
the Constitution and Laws, of the Federal Government of the United States;
and of the Commonwealth of Virginia, 300 (1803) (ellipsis in original).
Note how the fact that the Second Amendment applies to Americans generally
is sharply contrasted with, and favorably compared to, the relevant part of
the English Bill of Rights, which only pertained to Protestants and even
for those only as "suitable to their condition and degree." The Amendment
is said to facilitate the right of self defense. Having individuals armed
is particularly necessary when standing armies are kept up, as the
combination of a standing army and a disarmed populace threatens the
destruction of liberty.
Second, William Rawle:
"In the second article, it is declared, that a well regulated militia is
necessary to the security of a free state; a proposition from which few
will dissent. Although in actual war, the services of regular troops are
confessedly more valuable; yet, while peace prevails, and in the
commencement of a war before a regular force can be raised, the militia
form the palladium of the country. They are ready to repel invasion, to
suppress insurrection, and preserve the good order and peace of government.
That they should be well regulated, is judiciously added. A disorderly
militia is disgraceful to itself, and dangerous not to the enemy, but to
its own country. The duty of the state government is, to adopt such
regulations as will tend to make good soldiers with the least interruptions
of the ordinary and useful occupations of civil life. In this all the Union
has a strong and visible interest.
The corollary, from the first position, is, that the right of the people to
keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule
of construction be conceived to give to congress a power to disarm the
people. Such a flagitious attempt could only be made under some general
pretence by a state legislature. But if in any blind pursuit of inordinate
power, either should attempt it, this amendment may be appealed to as a
restraint on both.
In most of the countries of Europe, this right does not seem to be denied,
although it is allowed more or less sparingly, according to circumstances.
In England, a country which boasts so much of its freedom, the right was
secured to protestant subjects only, on the revolution of 1688; and it is
cautiously described to be that of bearing arms for their defence,
'suitable to their conditions, and as allowed by law.' An arbitrary code
for the preservation of game in that country has long disgraced them. A
very small proportion of the people being permitted to kill it, though for
their own subsistence; a gun or other instrument, used for that purpose by
an unqualified person, may be seized and forfeited. Blackstone, in whom we
regret that we cannot always trace the expanded principles of rational
liberty, observes however, on this subject, that the prevention of popular
insurrections and resistence to government by disarming the people, is
oftener meant than avowed, by the makers of forest and game laws.
This right ought not, however, in any government, to be abused to the
disturbance of the public peace.
An assemblage of persons with arms, for an unlawful purpose, is an
indictable offence, and even the carrying of arms abroad by a single
individual, attended with circumstances giving just reason to fear that he
purposes to make an unlawful use of them, would be sufficient cause to
require him to give surety of the peace. If he refused he would be liable
to imprisonment."
William Rawle, A View of the Constitution of the United States of America
125-26 (Da Capo Press 1970) (2d ed. 1829) (footnotes omitted). This
explanation recognizes that the preamble is a declaration, a "proposition,"
setting forth the desirability of reliance upon a militia during peacetime.
A well-regulated militia is the opposite of a disorderly, disgraceful
militia. Rawle also observes that the Amendment's substantive guarantee
applies to all Americans -"[t]he prohibition is general." He likewise makes
plain that it precludes legislation "to disarm the people." Rawle, like St.
George Tucker, makes clear that the Second Amendment does not suffer from
the infirmities of the corresponding part of the English Bill of Rights.
Next, Justice Joseph Story:
"§ 1000. The next amendment is: "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.
§ 1001. The importance of this article will
scarcely be doubted by any persons, who have duly reflected upon the
subject. The militia is the natural defence of a free country against
sudden foreign invasions, domestic insurrections, and domestic usurpations
of power by rulers. It is against sound policy for a free people to keep up
large military establishments and standing armies in time of peace, both
from the enormous expenses, with which they are attended, and the facile
means, which they afford to ambitious and unprincipled rulers, to subvert
the government, or trample upon the rights of the people. The right of the
citizens to keep, and bear arms has justly been considered, as the
palladium of the liberties of a republic; since it offers a strong moral
check against the usurpation and arbitrary power of rulers; and will
generally, even if these are successful in the first instance, enable the
people to resist, and triumph over them. And yet, though this truth would
seem so clear, and the importance of a well regulated militia would seem so
undeniable, it cannot be disguised, that among the American people there is
a growing indifference to any system of militia discipline, and a strong
disposition, from a sense of its burthens, to be rid of all regulations.
How it is practicable to keep the people duly armed without some
organization, it is difficult to see. There is certainly no small danger,
that indifference may lead to disgust, and disgust to contempt; and thus
gradually undermine all the protection intended by this clause of our
national bill of rights."
Joseph Story, Commentaries on the Constitution of the United States 708-
709 (Carolina Academic Press 1987) (1833) (emphasis added). Justice Story
calls the right of "citizens" to keep and bear arms the "palladium" of our
liberties. He viewed the private ownership of firearms as reducing the need
for the maintenance of large standing armies by promoting the vitality of
the militia, and laments that militia participation is on the decline,
fearing this will result in fewer Americans being armed.
And finally, Thomas Cooley:
"Section IV.--The Right to Keep and Bear Arms
The Constitution.--By the second amendment to the Constitution it is
declared that, '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.'
The amendment, like most other provisions in the Constitutions, has a
history. It was adopted with some modification and enlargement from the
English Bill of Rights of 1688, where it stood as a protest against
arbitrary action of the overturned dynasty in disarming the people, and as
a pledge of the new rulers that this tyrannical action should cease. The
right declared was meant to be a strong moral check against the usurpation
and arbitrary power of rulers, and as a necessary and efficient means of
regaining rights when temporarily overturned by usurpation.
The Right is General.--It might be supposed from the phraseology of this
provision that the right to keep and bear arms was only guaranteed to the
militia; but this would be an interpretation not warranted by the intent.
The militia, as has been elsewhere explained, consists of those persons
who, under the law, are liable to the performance of military duty, and are
officered and enrolled for service when called upon. But the law may make
provision for the enrolment of all who are fit to perform military duty, or
of a small number only, or it may wholly omit to make any provision at all;
and if the right were limited to those enrolled, the purpose of this
guaranty might be defeated altogether by the action or neglect to act of
the government it was meant to hold in check. The meaning of the provision
undoubtedly is, that the people, from whom the militia must be taken, shall
have the right to keep and bear arms; and they need no permission or
regulation of law for the purpose. But this enables the government to have
a well-regulated militia; for to bear arms implies something more than the
mere keeping; it implies the learning to handle and use them in a way that
makes those who keep them ready for their efficient use; in other words, it
implies the right to meet for voluntary discipline in arms, observing in
doing so the laws of public order.
Standing Army.--A further purpose of this amendment is, to preclude any
necessity or reasonable excuse for keeping up a standing army. A standing
army is condemned by the traditions and sentiments of the people, as being
as dangerous to the liberties of the people as the general preparation of
the people for the defence of their institutions with arms is preservative
of them.
What Arms may be kept.--The arms intended by the Constitution are such as
are suitable for the general defence of the community against invasion or
oppression, and the secret carrying of those suited merely to deadly
individual encounters may be prohibited."
Thomas M. Cooley, The General Principles of Constitutional Law in the
United States of America 270-72 (Rothman & Co. 1981) (original ed. 1880) (
footnotes omitted) (emphasis added).
9. Analysis
The history we have recounted largely speaks for itself. We briefly
summarize. The Anti-Federalists desired a bill of rights, express provision
for increased state power over the militia, and a meaningful express
limitation of the power of the federal government to maintain a standing
army. These issues were somewhat interrelated. The prospect of federal
power to render the militia useless and to maintain a large standing army
combined with the absence of any specific guarantees of individual liberty
frightened Anti-Federalists. But the Anti-Federalist complaint that
resonated best with the people at large was the lack of a bill of rights.
In mid-1788 the Constitution was ratified unchanged and in the spring of
1789 the Federalists gained control of both houses of the First Congress.
Hard core Anti-Federalists persisted in all three demands, but more
moderate Anti-Federalists and the people at large were primarily focused on
securing a bill of rights. Most Federalists were not really averse to a
bill of rights, but, like James Madison himself, had been forced to oppose
any modifications to the Constitution since it could only be ratified
unchanged. The Federalists wanted to please the Anti-Federalists as much as
possible without fundamentally altering the balance of federal- state
power. James Madison plainly stated this goal when he submitted his
proposed amendments to the House.
Given the political dynamic of the day, the wording of the Second Amendment
is exactly what would have been expected. The Federalists had no qualms
with recognizing the individual right of all Americans to keep and bear
arms. In fact, as we have documented, one of the Federalists' favorite
1787-88 talking points on the standing army and federal power over the
militia issues was to remind the Anti-Federalists that the American people
were armed and hence could not possibly be placed in danger by a federal
standing army or federal control over the militia. The Second Amendment's
preamble represents a successful attempt, by the Federalists, to further
pacify moderate Anti-Federalists without actually conceding any additional
ground, i.e. without limiting the power of the federal government to
maintain a standing army or increasing the power of the states over the
militia.
This is not to say that the Second Amendment's preamble was not appropriate
or is in any way marginal or lacking in true significance. Quite the
contrary. Absent a citizenry generally keeping and bearing their own
private arms, a militia as it was then thought of could not meaningfully
exist. As pointed out by Thomas Cooley, the right of individual Americans
to keep, carry, and acquaint themselves with firearms does indeed promote a
well-regulated militia by fostering the development of a pool of
firearms-familiar citizens that could be called upon to serve in the
militia. While standing armies are not mentioned in the preamble, history
shows that the reason a well-regulated militia was declared necessary to
the security of a free state was because such a militia would greatly
reduce the need for a standing army. Thus, the Second Amendment dealt
directly with one of the Anti-Federalists' concerns and indirectly
addressed the other two. While the hard core Anti-Federalists recognized
that the Second Amendment did not assure a well-regulated militia or
curtail the federal government's power to maintain a large standing army,
they did not control either branch of Congress (or the presidency) and had
to be content with the right of individuals to keep and bear arms.
Finally, the many newspaper articles and personal letters cited indicate
that, at the time, Americans viewed the Second Amendment as applying to
individuals. This is confirmed by the First Congress's rejection of
amendments that would have directly and explicitly addressed the Anti-
Federalists' standing army and power over the militia concerns.
We have found no historical evidence that the Second Amendment was intended
to convey militia power to the states, limit the federal government's power
to maintain a standing army, or applies only to members of a select militia
while on active duty.(60) All of the evidence indicates that the Second
Amendment, like other parts of the Bill of Rights, applies to and protects
individual Americans.
We find that the history of the Second Amendment reinforces the plain
meaning of its text, namely that it protects individual Americans in their
right to keep and bear arms whether or not they are a member of a select
militia or performing active military service or training.
D. Second Amendment protects individual rights
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. However, because of
our holding that section 922(g)(8), as applied to Emerson, does not
infringe his individual rights under the
Second Amendment we will not now further elaborate as to the exact scope of
all Second Amendment rights.
VI. Application to Emerson
The district court held that section 922(g)(8) was unconstitutionally
overbroad because it allows second amendment rights to be infringed absent
any express judicial finding that the person subject to the order posed a
future danger. In other words, the section 922(g)(8) threshold for
deprivation of the fundamental right to keep and bear arms is too low.(61)
Although, as we have held, the Second Amendment does protect individual
rights, that does not mean that those rights may never be made subject to
any limited, narrowly tailored specific exceptions or restrictions for
particular cases that are reasonable and not inconsistent with the right of
Americans generally to individually keep and bear their private arms as
historically understood in this country. Indeed, Emerson does not contend,
and the district court did not hold, otherwise. As we have previously
noted, it is clear that felons, infants and those of unsound mind may be
prohibited from possessing firearms. See note 21, supra.(62) Emerson's
argument that his Second Amendment rights have been violated is grounded on
the propositions that the September 14, 1998 order contains no express
finding that he represents a credible threat to the physical safety of his
wife (or child), that the evidence before the court issuing the order would
not sustain such a finding and that the provisions of the order bringing it
within clause (C)(ii) of section 922(g)(8) were no more than uncontested
boiler-plate. In essence, Emerson, and the district court,
concede that had the order contained an express finding, on the basis of
adequate evidence, that Emerson actually posed a credible threat to the
physical safety of his wife, and had that been a genuinely contested matter
at the hearing, with the parties and the court aware of section 922( g)(8),
then Emerson could, consistent with the Second Amendment, be
precluded from possessing a firearm while he remained subject to the
order.(63)
Though we are concerned with the lack of express findings in the order, and
with the absence of any requirement for same in clause (C)(ii) of section
922(g)(8), we are ultimately unpersuaded by Emerson's argument. Section
922(g)(8)(A) requires an actual hearing with prior notice and an
opportunity to participate, and section 922(g)(8)(C)(ii) requires that the
order "explicitly" prohibit the use (actual, threatened or attempted) of
physical force that would reasonably be expected to cause bodily injury.
Congress legislated against the background of the almost universal rule of
American law that for a temporary injunction to issue:
"There must be a likelihood that irreparable harm will occur. Speculative
injury is not sufficient; there must be more than an unfounded fear on the
part of the applicant. Thus, a preliminary injunction will not be issued
simply to prevent the possibility of some remote future injury. A presently
existing actual threat must be shown. However, the injury need not have
been inflicted when application is made or be certain to occur; a strong
threat of irreparable injury before trial is an adequate basis." 9 Wright,
Miller & Kane, Federal Practice and Procedure: Civil 2d § 2948.1 at 153-56
(footnotes omitted; emphasis added).(64)
We conclude that Congress in enacting section 922(g)(8)(C)(ii) proceeded on
the assumption that the laws of the several states were such that court
orders, issued after notice and hearing, should not embrace the
prohibitions of paragraph (C)(ii) unless such either were not contested or
evidence credited by the court reflected a real threat or danger of injury
to the protected party by the party enjoined. We do not imply that Congress
intended to authorize collateral review of the particular state court
predicate order in section 922(g)(8)(C)(ii) prosecutions to determine
whether in that individual case the state court adequately followed state
law in issuing the order. What we do suggest is that Congress did not have
in mind orders issued under a legal system whose rules did not approximate
the above stated general minimum standards for the issuance of contested
injunctive orders after notice and hearing.
In any event, it is clear to us that Texas law meets these general minimum
standards. See, e.g., Texas Indus. Gas v. Phoenix Metallurgical, 828 S.W.2d
529, 532 (Tex. App.-Hou. [1st Dist.] 1992):
"A trial court may not issue a temporary injunction except to prevent a
threatened injury. . . . The commission of the act to be enjoined must be
more than just speculative, and the injury that flows from the act must be
more than just conjectural. . . . The trial court will abuse its discretion
if it grants a temporary injunction when the evidence does not clearly
establish that the applicant is threatened with an actual, irreparable
injury."
See also State v. Morales, 869 S.W.2d 941, 946 (Tex. 1994) ("An injunction
will not issue unless it is shown that the respondent will engage in the
activity enjoined"); Armendariz v. Mora, 526 S.W.2d 542, 543 (Tex. 1975) (
reversing temporary injunction where no "evidence establishing probable
injury"); Dallas General Drivers v. Wamix, 295 S.W.2d 873, 879 (Tex. 1956);
In re Marriage of Spiegel, 6 S.W.3d 643, 645 (Tex. App.-Amarillo 1999).
We conclude that essentially the same standards are applicable to orders,
such as the September 14, 1998 order here, issued under Texas Family Code §
6.502, which provides that in a pending divorce proceeding "after notice
and hearing, the court may render an appropriate order, including the
granting of a temporary injunction for . . . protection of the parties as
deemed necessary . . . including an order directed to one or both parties .
. . prohibiting an act described by Section 6.501(a)." Section 6.501(a),
dealing with temporary restraining orders in divorce proceedings,
authorizes orders "prohibiting one or both parties from: . . . (2)
threatening the other, by telephone or in writing, to take unlawful action
against any person, intending by this action to annoy or alarm the other; .
. . (4) intentionally, knowingly, or recklessly causing bodily injury to
the other or to a child of either party; (5) threatening the other or a
child of either party with imminent bodily injury; . . ." The predecessor
statute to section 6.502 has been construed as requiring a showing of "
reasonable necessity" for the temporary injunction, including a showing of
" a probable injury." See Florence v. Florence, 388 S.W.2d 220, 223-24 (
Tex. Civ. App.-Tyler 1965)
We are also somewhat troubled by the unavailability of review by direct
appeal of interlocutory orders under section 6.502. See Texas Family Code §
6.507. However, appellate court review is available by mandamus under an
"abuse of discretion" standard. Wallace v. Briggs, 348 S.W.2d 523, 527 (
Tex. 1961). There are a number of reported appellate court decisions
granting such relief from orders under the predecessors to section 6.502.
See, e.g., Wallace; Little v. Daggett, 858 S.W.2d 368 (Tex. 1993); Dancy v.
Daggett, 815 S.W.2d 548 (Tex. 1991); Post v. Garza, 867 S.W.2d 88 (Tex.
App.-Corpus Christi 1993). We also note that it has more generally been
said that a "trial court will abuse its discretion if it grants a temporary
injunction when the evidence does not clearly establish that the applicant
is threatened with an actual, irreparable injury," Texas Indus. Gas, supra,
828 S.W.2d at 532 (emphasis added), and that, with reference to ruling on a
temporary injunction application, "[a]n abuse of discretion arises when the
trial court acts without reference to applicable guiding principles . . .;
acts arbitrarily; . . . or misinterprets or misapplies the law. . . ." In
Re Marriage of Spiegel, 6 S.W.3d 643, 645 (Tex. App.- Amarillo 1999)
(emphasis added; citations omitted). We also note in this connection that
orders such as that here of September 14, 1998, expire on the final decree
of divorce (and are subject to modification by the trial court prior
thereto; if incorporated into the final divorce decree they are then
subject to review on direct appeal).
In light of the foregoing, we cannot say that section 922(g)(8)(C)(ii)'s
lack of a requirement for an explicit, express credible threat finding by
the court issuing the order-of itself or together with appellate court
review being available (prior to final judgment) only by mandamus-renders
that section infirm under the Second Amendment. The presence of such an
explicit finding would likely furnish some additional indication that the
issuing court properly considered the matter, but such findings can be as
much "boilerplate" or in error as any other part of such an order.
As to Emerson's contention that the evidence before the court issuing the
September 14, 1998 order was insufficient to show that he posed a credible
threat to the physical safety of his wife or child, we conclude that under
these circumstances Lewis v. United States, 100 S.Ct. 915 (1980) and our
decision in United States v. Chambers, 922 F.2d 228 (5th Cir. 1991), each
discussed in part I hereof above, necessarily preclude the court in the
section 922(g)(8) prosecution from that sort of collateral review of the
validity of the particular section 922(g)(8) predicate order, at least
where, as we hold to be the case here, the order is not so "transparently
invalid" as to have "only a frivolous pretense to validity." See Chambers
at 239.
With respect to temporary injunctions and similar orders to be issued only
after notice and hearing, the Texas rule of law, as we have noted, is that
such an order, at least to the extent contested and explicitly prohibiting
acts such as are covered by section 922(g)(8)(C)(ii), may not properly
issue unless the issuing court concludes, based on adequate evidence at the
hearing, that the party restrained would otherwise pose a realistic threat
of imminent physical injury to the protected party, and this is so
regardless of whether or not Texas law requires the issuing court to make
on the record express or explicit findings to that effect. Moreover, such
orders are subject to being set aside by the issuing court as well as being
subject to some review by an appellate court. In such a case, we conclude
that the nexus between firearm possession by the party so enjoined and the
threat of lawless violence, is sufficient, though likely barely so, to
support the deprivation, while the order remains in effect, of the enjoined
party's Second Amendment right to keep and bear arms, and that this is so
even though the party enjoined may not collaterally attack the particular
predicate order in the section 922(g)(8) prosecution, at least so long as
the order, as here, is not so transparently invalid as to have only a
frivolous pretense to validity.(65 )
VII. Conclusion
Error has not been demonstrated in the district court's refusal to dismiss
the indictment on commerce clause grounds.
For the reasons stated, we reverse the district court's order granting the
motion to dismiss the indictment under the Fifth Amendment.
We agree with the district court that the Second Amendment protects the
right of individuals to privately keep and bear their own firearms that are
suitable as individual, personal weapons and are not of the general kind or
type excluded by Miller, regardless of whether the particular individual is
then actually a member of a militia.(66) However, for the reasons stated,
we also conclude that the predicate order in question here is sufficient,
albeit likely minimally so, to support the deprivation, while it remains in
effect, of the defendant's Second Amendment rights. Accordingly, we reverse
the district court's dismissal of the indictment on Second Amendment
grounds.
We remand the cause for further proceedings not inconsistent herewith.
REVERSED and REMANDED(67) Appendix
The material in this appendix comes largely from Young, "The Origin of the
Second Amendment" (2d Ed. 1995) (Golden Oaks Books), herein after cited as
Young (all emphasis in original unless otherwise noted).
1. Anti-Federalists want a Bill of Rights.
Letter from Richard Henry Lee to William Shippen, Jr. (October 2, 1787) (
reprinted in Young, at 31)("I have considered the new Constitution . . . &
I find it impossible for me to doubt, that in its present State, unamended,
the adoption of it will put Civil Liberty and the happiness of the people
at the mercy of Rulers who may possess the great unguarded powers given . .
. The necessary alterations will by no means interfere with the general
nature of the plan, or limit the power of doing good; but they will
restrain from oppression the wicked & Tyrannic . . . ."); Letter from
George Mason to George Washington (October 7, 1787) (reprinted in Young, at
34-35) ("Objections to the Constitution of Government formed by the
Convention. There is no Declaration of Rights, and the Laws of the general
Government being paramount to the Laws & Constitutions of the several
States, the Declarations of Rights in the separate States are no
Security."); An Old Whig II, Philadelphia Independent Gazetteer, October
17, 1787 (excerpts reprinted in Young, at 49-51) ("[T]he future Congress
will be fully authorized to assume all such powers as they in their wisdom
or wickedness, according as the one or the other may happen to prevail,
shall from time to time think proper to assume. . . . [I]t is not of a
farthing consequence whether they really are of opinion that the law is
necessary and proper, or only pretend to think so; for who can overrule
their pretensions?-No one, unless we had a bill of rights to which we might
appeal . . . In giving such immense, such unlimited powers, was there no
necessity of a bill of rights to secure to the people their liberties?");
Letter from Elbridge Gerry to the Massachusetts General Court (October 18,
1787) (excerpt reprinted in Young, at 51) ("My principal objections to the
plan, are . . . that the system is without the security of a bill of
rights."); An Old Whig III, Philadelphia Independent Gazetteer, October 20,
1787 (excerpt reprinted in Young, at 51) ("[T]here ought to be a bill of
rights firmly established, which neither treaties nor acts of the
legislature can alter."); Letter from Louis Guillaume Otto to Comte de
Montmorin (October 21, 1787) (excerpt reprinted in Young, at 56) ("He
[Anti-Federalist Richard Henry Lee] disapproves especially that the
government might have been accorded immense powers without preceding the
Constitution with a bill of rights, which has always been regarded as the
palladium of a free people."); A Confederationalist, Philadelphia
Pennsylvania Herald, October 27, 1787 (excerpt reprinted in Young, at 66 )
("[A] declaration of those inherent and political rights ought to be made
in a BILL OF RIGHTS, that the people may never lose their liberties by
construction."); Letter from George Lee Turberville to Arthur Lee ( October
28, 1787) (excerpt reprinted in Young, at 71) ("[T]his points out to me the
absolute necessity of a bill of rights-and that a very full & explanatory
one too-where not only the Liberty of the press, the trial by jury of the
vicinage & all those great points-but even every the most trivial privilege
that Citizens have a right to possess-shou'd be expressly stipulated and
reserved-& the violation of them most scrupulously and Jealously guarded
against-Of what consequence is the federal guarantee of republican
governments to the individual states, when the power of the Militia's even
is rested in the president . . . ."); Letter from Arthur Lee to Edward
Rutledge (October 29, 1787) (excerpt reprinted in Young, at 72) ("I do not
like it [the Constitution]. The want of a promised declaration of rights,
when by some exceptions in the Body of it, things, in which no power is
expressly given, implies that every thing not excepted is given; is a very
material defect.); R.S., Philadelphia Pennsylvania Herald, November 10,
1787 (excerpt reprinted in Young, at 101) ("The most repeated, and
certainly the most substantial, charge against the proposed constitution,
is the want of a bill of rights. "); Brutus III, New York Journal, November
15, 1787 (excerpt reprinted in Young, at 104) ("[T]he plan [the
Constitution] is radically defective in a fundamental principle, which
ought to be found in every free government; to wit, a declaration of
rights."); Robert Whitehill, Pennsylvania Convention, November 28, 1787
(excerpt reprinted in Young, at 117) ("If indeed the Constitution itself so
well defined the powers of government that no mistake could arise, and we
were well assured that our governors would always act right, then we might
be satisfied without an explicit reservation of those rights with which the
people ought not, and mean not to part. But, sir, we know that it is the
nature of power to seek its own augmentation, and thus the loss of liberty
is the necessary consequence of a loose or extravagant delegation of
authority. National freedom has been, and will be the sacrifice of ambition
and power, and it is our duty to employ the present opportunity in
stipulating such restrictions as are best calculated to protect us from
oppression and slavery."); A Federal Republican, A Review of the
Constitution (November 28, 1787) (excerpt reprinted in Young, at 119)
("Hitherto we have been considering the blemishes of the Constitution as
they statedly exist-other objects are derived from omission. Among these
the grand one, upon which is indeed suspended every other, is the omission
of a bill of rights."); Letter from Thomas Jefferson to James Madison
(December 20, 1787) (excerpt reprinted in Young, at 177) ("[A] bill of
rights is what the people are entitled to against every government on
earth, general or particular, & what no just government should refuse, or
rest on inference."); Letter from Thomas B. Waite to George Thatcher,
January 8, 1788 (excerpt reprinted in Young, at 194) ("There is a certain
darkness, duplicity and studied ambiguity of expression running thro' the
whole Constitution which renders a Bill of Rights peculiarly necessary.-As
it now stands but very few individuals do, or ever will understand
it.-Consequently, Congress will be its own interpreter . . . ."); Samuel,
Boston Independent Chronicle, January 10, 1788 (excerpt reprinted in Young,
at 202) ("The most complaints, that I have heard made about the proposed
Constitution, are that there is no declaration of rights."); Hugh Henry
Brackenridge, Pittsburgh Gazette, March 1, 1788 (excerpt reprinted in
Young, at 291) ("The want of a bill of rights is the great evil."); Luther
Martin, Baltimore Maryland Journal, March 21, 1788 (excerpts reprinted in
Young, at 306) ("But the proposed constitution being intended and empowered
to act not only on states, but also immediately on individuals, it renders
a recognition and a stipulation in favour of the rights both of states and
of men, not only proper, but in my opinion, absolutely necessary.");
Patrick Henry, Virginia Convention, June 16, 1788 (excerpt reprinted in
Young, at 436) ("[ T]he necessity of a bill of rights appears to me to be
greater in this government than ever it was in any government before.").
And, there were moderates who sought to make peace between the Federalists
and Anti-Federalists and recognized the necessity of a Bill of Rights. See
A True Friend, Broadside: Richmond, December 6, 1787 ( reprinted in Young,
at 143) ("Let us then insert in the first page of this constitution, as a
preamble to it, a declaration of our rights, or an enumeration of our
prerogatives, as a sovereign people; that they may never hereafter be
unknown, forgotten or contradicted by our representatives, our delegates,
our servants in Congress . . . .").
2. Federalists say bill of rights not needed because federal government
given no power to infringe fundamental rights.
One of the People, Philadelphia Pennsylvania Gazette, October 17, 1787 (
excerpt reprinted in Young, at 45) ("The freedom of the press and trials by
jury are not infringed on. The Constitution is silent, and with propriety
too, on these and every other subject relative to the internal government
of the states. These are secured by the different state constitutions. I
repeat again, that the Federal Constitution does not interfere with these
matters. Their power is defined and limited by the 8th section of the first
Article of the Constitution, and they have not power to take away the
freedom of the press, nor can they interfere in the smallest degree with
the judiciary of any of the states."); A Citizen, Carlisle Gazette, October
24, 1787 (excerpt reprinted in Young, at 57) (" The consideration of the
nature and object of this general government will also shew you how weak it
is to talk of a bill of rights in it. It is a government of states; not of
individuals. The constitution of each state has a bill of rights for its
own citizens; and the proposed plan guaranties to every state a republican
form of government for ever. But it would be a novelty indeed to form a
bill of rights for states."); James Wilson, Pennsylvania Convention,
November 28, 1787 (excerpt reprinted in Young, at 114) ("[A] bill of rights
is by no means a necessary measure. In a government possessed of enumerated
powers, such a measure would be not only unnecessary, but preposterous and
dangerous."); Brutus, Alexandria Virginia Journal, December 6, 1787
(excerpt reprinted in Young, at 144) ("The powers which the people delegate
to their rulers are completely defined, and if they should assume more than
is there warranted they would soon find that there is a power in the United
States of America paramount to their own, which would bring upon them the
just resentment of an injured people."); Cassius XI, Boston Massachusetts
Gazette, December 25, 1787 (excerpt reprinted in Young, at 179) ("[O]f what
use would be a bill of rights, in the present case? . . . It can only be to
resort to when it is supposed that Congress have infringed the unalienble
rights of the people: but would it not be much easier to resort to the
federal constitution, to see if therein power is given to Congress to make
the law in question? If such power is not given, the law is in fact a
nullity, and the people will not be bound thereby. For let it be remembered
that such laws, and such only, as are founded on this constitution, are to
be the supreme laws of the land."); General Charles Pinckney, South
Carolina Convention, January 18, 1788, (excerpt reprinted in Young, at 217)
("The general government has no powers but what are expressly granted to
it; it therefore has no power to take away the liberty of the press. . . .
[T]o have mentioned it in our general Constitution would perhaps furnish an
argument, hereafter, that the general government had a right to exercise
powers not expressly delegated to it. For the same reason, we had no bill
of rights inserted in our Constitution; for, as we might perhaps have
omitted the enumeration of some of our rights, it might hereafter be said
we had delegated to the general government a power to take away such of our
rights as we had not enumerated . . . ."); Aristides [Alexander Contee
Hanson], Remarks on the Proposed Plan of a Federal Government, Addressed to
the Citizens of the United States of America, and particularly to the
People of Maryland, January 31, 1788 (excerpts reprinted in Young, at 239-
42) ("[W]hen the compact [the Constitution] ascertains and defines the
power delegated to the federal head, then cannot this government, without
manifest usurpation, exert any power not expressly, or by necessary
implication, conferred by the compact. This doctrine is so obvious and
plain, that I am amazed any good man should deplore the omission of a bill
of rights."); Alexander White, Winchester Virginia Gazette, February 22,
1788 (excerpts reprinted in Young, at 281) ("There are other things [in the
Pennsylvania Minority's proposed Declaration of Rights] so clearly out of
the power of Congress, that the bare recital of them is sufficient, I mean
the 'rights of conscience, or religious liberty-the rights of bearing arms
for defence, or for killing game-the liberty of fowling, hunting and
fishing-the right of altering the laws of descents and distribution of the
effects of deceased persons and titles of lands and goods, and the
regulation of contracts in the individual States.' These things seem to
have been inserted among their objections, merely to induce the ignorant to
believe that Congress would have a power over such objects and to infer
from their being refused a place in the Constitution, their intention to
exercise that power to the oppression of the people. But if they had been
admitted as reservations out of the powers granted to Congress, it would
have opened a large field indeed for legal construction: I know not an
object of legislation which by a parity of reason, might not be fairly
determined within the jurisdiction of Congress.") (emphasis added).
3. Federalists argue that bill of rights may imply federal
government has power to infringe those rights not mentioned.
James Wilson, Pennsylvania Convention, November 28, 1787 (excerpt reprinted
in Young, at 116) ("In all societies, there are many powers and rights,
which cannot be particularly enumerated. A bill of rights annexed to a
constitution is an enumeration of the powers reserved. If we attempt an
enumeration, every thing that is not enumerated is presumed to be given.
The consequence is, that an imperfect enumeration would throw all implied
power into the scale of the government; and the rights of the people would
be rendered incomplete."); Jasper Yeates, Pennsylvania Convention, November
30, 1787 (excerpt reprinted in Young, at 125-26) ("I agree with those
gentlemen who conceive that a bill of rights, according to the ideas of the
opposition, would be accompanied with considerable difficulty and danger;
for, it might be argued at a future day by the persons then in power-you
undertook to enumerate the rights which you meant to reserve, the
pretension which you now make is not comprised in that enumeration, and,
consequently, our jurisdiction is not circumscribed."); Brutus, Alexandria
Virginia Journal, December 6, 1787 ( excerpt reprinted in Young, at 144)
("[I]t would therefore have been not only absurd but even dangerous to have
inserted a bill of rights; because, if, in the enumeration of rights and
privileges to be reserved, any had been omitted or forgotten, and the
people, at a future period, should assume those so omitted, the rulers
might with propriety dispute their right to exercise them, as they were not
specified in the bill of rights . . . .").
4. Federalists argue bill of rights not needed as Americans, used to
freedom, would not allow infringement of rights.
Letter from William Pierce to St. George Tucker (September 28, 1787) (
reprinted in Young, at 29 ("I set this down as a truth founded in nature,
that a nation habituated to freedom will never remain quiet under an
invasion of its liberties."); A Citizen of Philadelphia [Pelatiah Webster],
The Weakness of Brutus Exposed, November 8, 1787 (reprinted in Young, at
85) ("[S]hould they [Congress] assume tyrannical powers, and make
incroachments on liberty without the consent of the people, they would soon
attone for their temerity, with shame and disgrace, and probably with their
heads."); The State Soldier, Richmond Virginia Independent Chronicle,
January 16, 1788 (excerpt reprinted in Young, at 209) ("[T]here is nothing
in this constitution itself that particularly bargains for a surrender of
your liberties, it must be your own faults if you become enslaved. Men in
power may usurp authorities under any constitution-and those they govern
may oppose their tyranny."); Marcus, Norfolk and Portsmouth Journal, March
12, 1788 (excerpt reprinted in Young, at 297-98) ("It is in the power of
the Parliament if they dare to exercise it, to abolish the trial by jury
altogether-but woe be to the man who should dare to attempt it-it would
undoubtedly produce an insurrection that would hurl every tyrant to the
ground who attempted to destroy that great and just favorite of the English
nation. We certainly shall be always sure of this guard at least, upon any
such act of folly or insanity in our Representatives: They soon would be
taught the consequence of sporting with the feelings of a free people.");
Publius [Alexander Hamilton], The Federalist, No. 8, The New York Packet,
November 20, 1787 (excerpt reprinted in Young, at 105-06) ( footnote
omitted) ("The smallness of the army renders the natural strength of the
community an overmatch for it; and the citizens, not habituated to look up
to the military power for [protection], or to submit to its oppressions,
neither love nor fear the soldiery: They view them with a spirit of jealous
acquiescence in a necessary evil, and stand ready to resist a power which
they suppose may be exerted to the prejudice of their rights. The army
under such circumstances, may usefully aid the magistrate to suppress a
small faction, or an occasional mob, or insurrection; but it will be unable
to enforce encroachments against the united efforts of the great body of
the people.")
5. Federalists argue that federal power to maintain a standing army should
not be feared because the American people are armed and hence could resist
an oppressive standing army.
A Citizen of America [Federalist Noah Webster], An Examination into the
Leading Principles of the Federal Constitution (October 10, 1787) (
reprinted in Young, at 40) ("Before a standing army can rule, the people
must be disarmed; as they are in almost every kingdom in Europe. The
supreme power in America cannot enforce unjust laws by the sword; because
the whole body of the people are armed, and constitute a force superior to
any band of regular troops that can be, on any pretense, raised in the
United States."); Essay on Federal Sentiments, Philadelphia Independent
Gazetteer, October 23, 1787 (excerpt reprinted in Young, at 57) ("If the
president and the whole senate should happen to be the boldest wealthiest,
most artful men in the union, supported by the most powerful connexions,
and unanimous in the design of subduing the nation; and if by the
concurrence of the representatives they obtained money and troops for the
purpose; yet the whole personal influence of Congress, and their parricide
army could never prevail over an hundred thousand men armed and
disciplined, owners of the country, animated not only with a spirit of
liberty, but ardent resentment against base treacherous tyrants."); Mr.
Sedgwick, Massachusetts Convention, January 24, 1788 (excerpt reprinted in
Young, at 230-31) ("It was, he said, a chimerical idea to suppose that a
country like this could ever be enslaved. How is an army for that purpose
to be obtained from the freemen of the United States? They certainly, said
he, will know to what object it is to be applied. Is it possible, he asked,
that an army could be raised for the purpose of enslaving themselves and
their brethren? [O]r if raised, whether they could subdue a nation of
freemen, who know how to prize liberty, and who have arms in their
hands?"); Aristides [Alexander Contee Hanson], Remarks on the Proposed Plan
of a Federal Government, Addressed to the Citizens of the United States of
America, and particularly to the People of Maryland, January 31, 1788
(excerpt reprinted in Young, at 240) ("If indeed it be possible in the
nature of things, that congress shall, at any future period, alarm us by an
improper augmentation of troops, could we not, in that case, depend on the
militia, which is ourselves."); A Pennsylvanian III [Tench Coxe],
Philadelphia Pennsylvania Gazette, February 20, 1788 ( excerpt reprinted in
Young, at 275-76) ("The power of the sword, say the minority of
Pennsylvania is in the hands of Congress. My friends and countrymen, it is
not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF
AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths,
entitled and accustomed to their arms, when compared to any possible army
must be tremendous and irresistable. Who are these militia ? [A]re they not
our selves. Is it feared, then, that we shall turn our arms each man
against his own bosom. Congress have no power to disarm the militia. Their
swords, and every other terrible implement of the soldier, are the
birthright of an American. What clause in the state or foedral constitution
hath given away that important right. . . . I do not hesitate to affirm,
that the unlimited power of the sword is not in the hands of either the
foedral or state governments, but, where I trust in God it will ever
remain, in the hands of the people."); Foreign Spectator, REMARKS on the
Amendments to the federal Constitution, proposed by the Conventions of
Massachusetts, New-Hampshire, New-York, Virginia, South and North-Carolina,
with the minorities of Pennsylvania and Maryland, by a FOREIGN SPECTATOR,
Number VI, Philadelphia Federal Gazette, November 7, 1788 (excerpt
reprinted in Young, at 556) ("We proceed to consider the amendments that
regard the military power of the federal government. . . . While the people
have property, arms in their hands, and only a spark of a noble spirit, the
most corrupt congress must be mad to form any project of tyranny."); The
Republican, Hartford Connecticut Courant, January 7, 1788 ( excerpts
reprinted in Young, at 188-91) ("it is a capital circumstance in favor of
our liberty that the people themselves are the military power of our
country. In countries under arbitrary government, the people oppressed and
dispirited neither possess arms nor know how to use them. Tyrants never
feel secure until they have disarmed the people. They can rely upon nothing
but standing armies of mercenary troops for the support of their power. But
the people of this country have arms in their hands; they are not destitute
of military knowledge; every citizen is required by law to be a soldier; we
are all marshaled into companies, regiments, and brigades, for the defense
of our country. This is a circumstance which increases the power and
consequence of the people; and enables them to defend their rights and
privileges against every invader. . . . The spirit of the people would
oppose every open and direct attempt to enslave them.").
Madison expresses largely the same thought in Federalist No. 46, as
follows: "Extravagant as the supposition is, let it, however, be made. Let
a regular army, fully equal to the resources of the country, be formed; and
let it be entirely at the devotion of the federal government; 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. The highest number
to which, according to the best computation, a standing army can be carried
in any country does not exceed one hundredth part of the whole number of
souls; or one twenty-fifth part of the number able to bear arms. This
proportion would not yield, in the United States, and army of more than
twenty-five or thirty thousand men. To these would be opposed a militia
amounting to near half a million citizens with arms in their hands,
officered by men chosen from among themselves, fighting for their common
liberties and united and conducted by governments possessing their
affections and confidence. It may well be doubted, whether a militia thus
circumstanced could ever be conquered by such a proportion of regular
troops. Those who are best acquainted with the last successful resistance
of this country against the British arms will be most inclined to deny the
possibility of it. Besides the advantage of being armed, which the
Americans possess over the people of almost every other nation, the
existence of subordinate governments, to which the people are attached and
by which the militia officers are appointed, forms a barrier against the
enterprises of ambition, more insurmountable than any which a simple
government of any form can admit of. Notwithstanding the military
establishments in the several kingdoms of Europe, which are carried as far
as the public resources will bear, the governments are afraid to trust the
people with arms. . . . Let us not insult the free and gallant citizens of
America with the suspicion, that they would be less able to defend the
rights of which they would be in actual possession, than the debased
subjects of arbitrary power [Europeans] would be to rescue theirs from the
hands of their oppressors." (The Federalist Papers, Rossiter, New American
Library, at 299-300; emphasis added.)
6. Federalist argue that federal militia powers obviated the need for and
minimized the likelihood of their being a large standing army.
In Federalist No. 29 Hamilton states: "If a well-regulated militia be the
most natural defense of a free country, it ought certainly to be under the
regulation and at the disposal of that body which is constituted the
guardian of national security. If standing armies are dangerous to liberty,
an efficacious power over the militia in the same body ought, as far as
possible, to take away the inducement and the pretext to such unfriendly
institutions. If the federal government can command the aid of the militia
in those emergencies which call for the military arm in support of the
civil magistrate, it can better dispense with the employment of a different
kind of force. If it cannot avail itself of the former, it will be obliged
to recur to the latter. To render an army unnecessary will be a more
certain method of preventing its existence than a thousand prohibitions
upon paper." (The Federalist Papers, Rossiter, New American Library, at
183). See also James Madison, Virginia Convention, June 14, 1788 (excerpt
reprinted in Young, at 400, 402, 404): " If insurrections should arise, or
invasions should take place, the people ought unquestionably to be
employed, to suppress and repel them, rather than a standing army. The best
way to do these things was to put the militia on a good and sure footing,
and enable the government to make use of their services when necessary. . .
. [After a response by George Mason] The most effectual way to guard
against a standing army, is to render it unnecessary. The most effectual
way to render it unnecessary, is to give the general government full power
to call forth the militia, and exert the whole natural strength of the
Union, when necessary. . . . If you limit their [the federal government's]
power over the militia, you give them a pretext for substituting a standing
army."
ROBERT M. PARKER, Circuit Judge, specially concurring:
I concur in the opinion except for Section V. I choose not to join Section
V, which concludes that the right to keep and bear arms under the Second
Amendment is an individual right, because it is dicta and is therefore not
binding on us or on any other court. The determination whether the rights
bestowed by the Second Amendment are collective or individual is entirely
unnecessary to resolve this case and has no bearing on the judgment we
dictate by this opinion. The fact that the 84 pages of dicta contained in
Section V are interesting, scholarly, and well written does not change the
fact that they are dicta and amount to at best an advisory treatise on this
long-running debate.
As federal judges it is our special charge to avoid constitutional
questions when the outcome of the case does not turn on how we answer. See
Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944)(" If
there is one doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on questions
of constitutionality . . . unless such adjudication is unavoidable.");
Walton v. Alexander, 20 F.3d 1350, 1356 (5th Cir. 1994)( Garwood, J.,
concurring specially)("It is settled that courts have a strong duty to
avoid constitutional issues that need not be resolved in order to determine
the rights of the parties to the case under consideration.")(internal
quotations omitted). Following this cardinal rule, we will not, for
example, pick and choose among dueling constitutional theories when under
any construction the challenged provision is invalid. See Hooper v.
Bernalillo County Assessor, 472 U.S. 612, 621 n.11 (1985). Nor will we
decide a constitutional question when under any construction the challenged
provision must be sustained. See O'Connor v. Nevada, 27 F.3d 357, 361 (9th
Cir. 1994); Bullock v. Minnesota, 611 F.2d 258, 260 (8th Cir. 1979).
Furthermore, the fact that a trial court passed on a novel question of
constitutional law does not require us to do likewise. Appellate courts are
supposed to review judgments, not opinions. See Texas v. Hopwood, 518 U.S.
1033, 1033 (1996). Here, whether "the district court erred in adopting an
individual rights or standard model as the basis for its construction of
the Second Amendment," Maj. Op. at 23, is not a question that affects the
outcome of this case no matter how it is answered. In holding that §
922(g)(8) is not infirm as to Emerson, and at the same time finding an
individual right to
gunownership, the majority today departs from these sound precepts of
judicial restraint.
No doubt the special interests and academics on both sides of this debate
will take great interest in the fact that at long last some court has
determined (albeit in dicta) that the Second Amendment bestows an
individual right. The real issue, however, is the fact that whatever the
nature or parameters of the Second Amendment right, be it collective or
individual, it is a right subject to reasonable regulation. The debate,
therefore, over the nature of the right is misplaced. In the final
analysis, whether the right to keep and bear arms is collective or
individual is of no legal consequence. It is, as duly noted by the majority
opinion, a right subject to reasonable regulation. If determining that
Emerson had an individual Second Amendment right that
could have been successfully asserted as a defense against the charge of
violating § 922(g)(8), then the issue would be cloaked with legal
significance. As it stands, it makes no difference. Section 922(g)(8) is
simply another example of a reasonable restriction on whatever right is
contained in the Second Amendment.
And whatever the scope of the claimed Second Amendment right, no
responsible individual or organization would suggest that it would protect
Emerson's possession of the other guns found in his military-style arsenal
the day the federal indictment was handed down. In addition to the Beretta
nine millimeter pistol at issue here, Emerson had a second Beretta
like the first, a semi-automatic M-1 carbine, an SKS assault rifle with
bayonet, and a semi-automatic M-14 assault rifle. Nor would anyone suggest
that Emerson's claimed right to keep and bear arms supercedes that of his
wife, their daughter, and of others to be free from bodily harm or threats
of harm. Though I see no mention of it in the majority's opinion, the
evidence shows that Emerson pointed the Beretta at his wife and
daughter when the two went to his office to retrieve an insurance payment.
When his wife moved to retrieve her shoes, Emerson cocked the hammer and
made ready to fire. Emerson's instability and threatening conduct also
manifested itself in comments to his office staff and the police. Emerson
told an employee that he had an AK-47 and in the same breath that he
planned to pay a visit to his wife's boyfriend. To a police officer he said
that if any of his wife's friends were to set foot on his property they
would "be found dead in the parking lot."
If the majority was only filling the Federal Reporter with page after page
of non-binding dicta there would be no need for me to write separately. As
I have said, nothing in this case turns on the original meaning of the
Second Amendment, so no court need follow what the majority has said in
that regard. Unfortunately, however, the majority's exposition pertains to
one of the most hotly-contested issues of the day. By overreaching in the
area of Second Amendment law, the majority stirs this controversy without
necessity when prudence and respect for stare decisis calls for it to say
nothing at all. See Cass R. Sunstein, One Case at a Time: Judicial
Minimalism and the Supreme Court 5 (1999)("[A] minimalist path usually--not
always, but usually--makes a good deal of sense when the Court is dealing
with a constitutional issue of high complexity about which many people feel
deeply and on which the nation is divided (on moral or other grounds).")
(italics in original). Indeed, in the end, the majority today may have done
more harm than good for those who embrace a right to gunownership.
1. The district court's opinion observes that "[d]uring the [September 4,
1998] hearing, Mrs. Emerson alleged that her husband threatened over the
telephone to kill the man with whom Mrs. Emerson had been having an
adulterous affair." United States v. Emerson, 46 F.Supp.2d 598, 599 (N.D.
Tex. 1999).
2. On August 28, 1998, the day Sacha's petition was filed, Judge Sutton had
issued an ex-parte temporary restraining order prohibiting Emerson from
engaging in any of the 29 acts enumerated in Sacha's petition pending a
hearing on Sacha's request for a temporary injunction. These acts included
all those quoted in the text above which the September 14, 1998 order
enjoined Emerson from committing. The August 28, 1998 order stated
that, after examining the petition, the court "finds that . . . unless [r]
espondent . . . is immediately restrained from the commission of the acts
hereinafter prohibited, [r]espondent will commit such acts before notice of
the hearing on temporary injunction can be served and a hearing had." This
August 28, 1998 order is not the order alleged in the indictment, and in
any event it is not within the terms of § 922(g)(8)(A) which requires that
the order have been "issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to participate."
3. The motion was apparently made because of problems with a witness. On
February 25, 1999, the district court granted the government's motion.
4. The presently relevant portions of the September 14, 1998, order here
cannot be characterized as having only a transparent or frivolous pretense
to validity.
5. The reference in this proposed amendment's subparagraph (B) to "a person
described in subparagraph (A)" plainly is to the "who is a spouse, former
spouse, domestic partner, child, or former child" language of subparagraph
(A).
6. So far as the record reflects, this case does not present a situation
where the defendant's firearm possession is merely incident to (and/or is
simply passive pending initiation and completion of) a good faith effort to
rid himself, as soon as after issuance of the disqualifying court order as
reasonably practicable under the circumstances, of the continued possession
of a previously possessed firearm. Whether such possession is outside the
intended scope of § 922(g)(8), or whether such circumstances constitute a
defense akin to that of necessity, justification or the like, or whether
some such result is constitutionally required (under the Second or Fifth or
Eighth Amendments, or otherwise), is thus not now before us. See,
generally, e.g., United States v. Newcomb, 6 F.3d 1129, 1133-38 (6th Cir.
1993) (preventing harm to others). Cf. United States v. Gomez, 81 F.3d 846,
850-54 (9th Cir. 1996) (self-defense); United States v. Panter, 688 F.2d
268, 269-72 (5th Cir. 1982) (same). We also observe that the charged
possession here was more than 60 days after the September 14, 1998 order.
There is no assertion that Emerson did not know of the order when
it was entered or within a day or two thereafter.
7. The front of the form contains a section 8 which consists of 11 separate
questions (respectively labeled "a" through "i") each of which has an
adjoining blank box in which the purchaser must fill in the answer " yes"
or "no." Question "8j" asks:
"j. Are you subject to a court order restraining you from harassing,
stalking, or threatening an intimate partner or child of such partner?" (
See important Notice 4 and Definition 4.)"
Emerson, correctly, filled in the answer "no" to each of questions 8b
through 8k.
Just below section 8 of the form, and just above where Emerson signed the
form, is a five line certificate, all in bold faced and capital letters,
which includes the statement: "I understand that a person who answers 'yes'
to any of the questions 8b through 8k is prohibited from purchasing or
possessing a firearm."
The "important Notice 4 and Definition 4" to which question 8j refers the
purchaser is set out on the back of the form as follows:
"4. Under 18 U.S.C. § 922 firearms may not be sold to or received by
persons subject to a court order that: (A) was issued after a hearing of
which the person received actual notice and had an opportunity to
participate; (B) restrains such person from harassing, stalking or
threatening an intimate partner or child of such intimate partner or
person, or engaging in other conduct that would place an intimate partner
in reasonable fear of bodily injury to the partner or child; and (C)(i)
includes a finding that such person represents a credible threat to the
physical safety of such intimate partner or child, or (ii) by its terms
explicitly prohibits the use, attempted use, or threatened use of physical
force against such intimate partner or child that would reasonably be
expected to cause bodily injury."
We also note that paragraph (8) of § 922(g) became law in September 1994,
P.L. 103-322, Sec. 110401(c), 108 Stat. 1796, 2014-2015, 2151,
approximately three years prior to Emerson's acquisition of the firearm in
question and approximately four years prior to the September 14, 1998
order.
8. Emerson assumed, for purposes of his pretrial motion to dismiss on
Commerce Clause grounds, that the pistol had traveled into Texas in
interstate or foreign commerce at some time prior to his October 10, 1997,
purchase of it in Texas. The government likewise so assumed. Neither party
alleged, the record does not reflect, and the district court made no
finding as to, when such travel in interstate or foreign commerce occurred.
Emerson did not contend below, and does not contend on appeal, that the
pistol had not traveled in interstate or foreign commerce after the 1994
enactment of the current version of § 922(g)(8). We also note that
Emerson's 1997 purchase of the pistol was apparently from a federally
licensed firearms leader, although any possible relevance of that to the
issue of congressional Commerce Clause power has not been raised by either
party here or below. See United States v. Lopez, 2 F.3d 1342, 1348 & n.9 (
5th Cir. 1993), affirmed, 115 S.Ct. 1624 (1995). Emerson's Commerce Clause
challenge as presented below and on appeal, and the government's and the
district court's response thereto, does not address either of those
matters, and we do not address either of them. Emerson has not
demonstrated error in the district court's denial of his pretrial motion to
dismiss under the Commerce Clause.
Even assuming, as we do, that the instant firearm traveled in interstate
commerce after the September 1994 enactment of § 922(g)(8), and though we
are bound by our prior precedent, it nevertheless appears to us that the
founding generation would have regarded as clearly illegitimate any
construction of the Commerce Clause which allowed federal prohibition of
mere passive, non-commercial, personal possession of a firearm acquired in
accordance with federal (as well as state) law which thereafter always
remained within the state in which it was acquired.
9. See Michael A. Bellesiles, The Second Amendment in Action, 76 Chi.-Kent
L. Rev. 61 (2000); Carl T. Bogus, The History and Politics of Second
Amendment Scholarship: A Primer, 76 Chi.-Kent L. Rev. 3 (2000); Carl T.
Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L.Rev. 309
(1998); Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the
Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev.
5 (1989); Paul Finkelman, "A Well Regulated Militia": The Second Amendment
in Historical Perspective, 76 Chi.-Kent L. Rev. 195 (2000); Steven J.
Heyman, Natural Rights and the Second Amendment, 76 Chi.-Kent L. Rev. 237
(2000); H. Richard Uviller & William G. Merkel, The Second Amendment in
Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev. 403
(2000).
Not every proponent of this model conceives of it in exactly the same way.
For example, Heyman and Uviller argue that the Second Amendment simply
guarantees that the federal government will not do anything to destroy the
militia.
10. In Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995), a citizen
brought suit under 42 U.S.C. § 1983 against state officials for violating,
inter alia, her Second Amendment rights by denying her application to
purchase a handgun. After stating that "[t]he Second Amendment does not
apply to the states," id. at 123, the court goes on to observe that "the
Second Amendment preserves a collective, rather than individual, right."
Id. at 124.
In United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976), also
discussed in note 19, infra, the Sixth Circuit stated: "'Since the Second
Amendment right "to keep and bear Arms" applies only to the right of the
State to maintain a militia and not to the individual's right to bear arms,
there can be no serious claim to any express constitutional right of an
individual to possess a firearm.'" Id. (quoting Stevens v. United States,
440 F.2d 144, 149 (6th Cir. 1971)).
In Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), a
police officer convicted of a misdemeanor crime of domestic violence was
fired because, under 18 U.S.C. § 922(g)(9), he could no longer possess a
firearm and was, as a result, unable to perform his duties. He brought suit
against the city officials and challenged the constitutionality of §
922(g)(9) on, inter alia, Second Amendment grounds. The Seventh Circuit
rejected the challenge, noting that the Second Amendment's introductory
clause "suggests" that it "inures not to the individual but to the people
collectively, its reach extending so far as is necessary to protect their
common interest in protection by a militia." Id. at 710. Despite the
collective nature of the Second Amendment, the court found the plaintiff
had standing to mount his Second Amendment challenge. Id. at 711. The court
also said that the Second Amendment was not violated because under no
"plausible set of facts" would "the viability and efficacy of state
militias . . . be undermined by prohibiting those convicted of perpetrating
domestic violence from possessing weapons in or affecting interstate
commerce." Id.
Hickman v. Block, 81 F.3d 98, 99 (9th Cir. 1996), involved another § 1983
suit by a citizen against state officials who denied his application for a
concealed weapons permit. The Ninth Circuit decided to "follow our sister
circuits in holding that the Second Amendment is a right held by the
states, and does not protect the possession of a weapon by a private
citizen." Id. at 101. Thus, the plaintiff's lack of standing was
dispositive, though the court did note that the Second Amendment "is not
incorporated against the states." Id. at 103 n.10.
11. In Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942), also
discussed in note 19, infra, the First Circuit concluded that the Second
Amendment was not infringed because there was no evidence that the
defendant "was or ever had been a member of any military organization or
that his use of the weapon . . . was in preparation for a military career"
and the evidence showed he was "on a frolic of his own and without any
thought or intention of contributing to the efficiency of the well
regulated militia." Id. While the First Circuit did not explicitly adopt
the sophisticated collective rights model, its analysis is in many respects
consonant with it.
In United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), the Third
Circuit held that Rybar's membership in the general, unorganized militia
established by 10 U.S.C. § 311(a) did not cause his possession of a machine
gun to be so connected with militia activity that the Second Amendment
applied. While Rybar was not clear about whether it was adopting the
states' rights view or the sophisticated collective rights view, it seems
more consistent with the latter.
In United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), the Eighth Circuit
found it unnecessary to commit to either the states' rights or the
sophisticated collective rights model of the Second Amendment. The court
proclaimed that "[c]onsidering this history, we cannot conclude that the
Second Amendment protects the individual possession of military weapons."
Id. at 1019. Yet, the court went on to consider whether the defendant's
actual possession of machine guns was "reasonably related to the
preservation of a well regulated militia." Id. at 1020. Like the Third
Circuit in Rybar, the Eighth Circuit held that membership in an unorganized
militia did not satisfy the reasonable relationship test. The court felt
that unless the reasonable relationship test was satisfied, it was
"irrelevant" whether the Second Amendment was collective or individual in
nature. Id. However, the court's inquiry into the nature of the defendant's
possession of the machine guns is more compatible with the sophisticated
collective rights model.
United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), is similar to Rybar.
In Oakes the Tenth Circuit first rebuffed the individual rights view of the
Second Amendment, then rejected defendant's argument that, because he was
"technically" a member of the Kansas militia, as Kansas law defined its
militia to include all able-bodied male citizens between ages 21 and 45,
his possession of a machine gun preserved the effectiveness of the militia
such that the Second Amendment applied. The court did not specify whether
the Second Amendment was an individual right of extremely limited scope or
whether it protected only states rather than individuals; however, the
court's willingness to address the defendant's state militia argument is
more in accord with the sophisticated collective rights model.
United States v. Wright, 117 F.3d 1265 (11th Cir. 1997), is similar to, and
relied upon, Hale. The court held that the defendant's membership in
Georgia's "unorganized militia"(defined as all able-bodied males between
ages 17 and 45 not in the organized or retired militia-or national guard-
or on the reserve list) did not render his possession of machine guns and
pipe bombs so related to the preservation of a well regulated militia that
it was necessary to determine whether the Second Amendment "creates" a
collective or individual right. Id. at 1273-74 & n.18. The court also
stated that "[t]he possibility that in responding to a future crisis state
authorities might seek the aid of members of the unorganized militia does
not speak to the militia's current state of regulation." Again, this
approach is consistent with the sophisticated states' rights model.
For further discussion of the sophisticated collective rights model, see
Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale
L. J. 995, 1003-1004 (1995) and Nelson Lund, The Ends of Second Amendment
Jurisprudence: Firearms Disabilities and Domestic Violence Restraining
Orders, 4 Tex. Rev. L. & Pol. 157, 184-86 (1999).
12. See Scott Bursor, Toward a Functional Framework for Interpreting the
Second Amendment, 74 Texas L. Rev. 1125 (1996); Robert J. Cottrol & Raymond
T. Diamond, The Fifth Auxiliary Right, 104 Yale L. J. 995 (1995); Robert
Dowlut, The Right to Arms: Does the Constitution or the Predilection of
Judges Reign?, 36 Okla. L. Rev. 65 (1983); Stephen P. Halbrook, The Right
of the People or the Power of the State: Bearing Arms, Arming Militias, and
the Second Amendment, 26 Val. U. L. Rev. 131 (1991); Stephen P. Halbrook,
What the Framers Intended: A Linguistic Analysis of the Right to "Bear
Arms", 49 Law & Contemp. Probs. 151 (1986); Don B. Kates, Jr., The Second
Amendment and the Ideology of Self-Protection, 9 Const. Comm. 87 (1992);
Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the
Second Amendment, 82 Mich. L. Rev. 204 (1983); Sanford Levinson, The
Embarrassing Second Amendment, 99 Yale L. J. 637 ( 1989); Nelson Lund, The
Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic
Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157 (1999); Nelson Lund,
The Past and Future of the Individual's Right to Arms, 31 Ga. L. Rev. 1
(1996); Glenn H. Reynolds, A Critical Guide to the Second Amendment, 62
Tenn. L. Rev. 461 (1995); Robert E. Shalhope, The Ideological Origins of
the Second Amendment, 69 J. Am. Hist. 599 (1982); William Van Alstyne, The
Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994);
Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793
(1998).
13. In United States v. Cruikshank, 23 L.Ed. 588 (1875), the Court held
that the Second Amendment "is one of the amendments that has no other
effect than to restrict the powers of the National Government." Id. at 592.
In Presser v. Illinois, 6 S.Ct. 580, 584 (1886), the Court, reaffirming
Cruikshank and citing Barron v. Baltimore, 8 L.Ed. 672 (1833), held that
the Second "amendment is a limitation only upon the power of congress and
the national government, and not upon that of the state." And, in Miller v.
Texas, 14 S.Ct. 874 (1894), the Court held, with respect to "the second and
fourth amendments" that "the restrictions of these amendments operate only
upon the federal power, and have no reference whatever to proceedings in
state courts," citing Barron v. Baltimore and Cruikshank. As these holdings
all came well before the Supreme Court began the process of incorporating
certain provisions of the first eight amendments into the Due Process
Clause of the Fourteenth Amendment, and as they ultimately rest on a
rationale equally applicable to all those amendments, none of them
establishes any principle governing any of the issues now before us.
14. The Court's opinion quotes the entire indictment, id. at 816, and
likewise quotes all the relevant provisions of the National Firearms Act (
then codified at 26 U.S.C. §§ 1132 et seq.), including the definition (in
its section 1) of a "firearm" as including "a shotgun or rifle having a
barrel of less than eighteen inches in length." Id. n.1.
15. The demurrer further urged that the National Firearms Act was also
unconstitutional because it was "not a revenue measure but an attempt to
usurp police power reserved to the States." Miller at 817. The district
court did not address this contention. The Supreme Court dismissed it as "
plainly untenable," citing Sonzinksky v. United States, 57 S.Ct. 554 (1937
), and several cases "under the Harrison Narcotic Act," including Nigro v.
United States, 48 S.Ct. 388 (1927). Miller at 818. The government's brief
addressed only the issue of whether section 11 of the National Firearms Act
contravened the Second Amendment.
16. The government's Miller brief (pp. 12-14) also quotes at length from
Aymette at pp. 156-57 as background support for its first argument (namely
that the Second Amendment protects arms bearing only where it occurs during
actual militia service). However, while some of the Aymette language quoted
tends in that direction, the actual holding of that case appears to rest on
the basis stated in the quotation set out in the text above. In Aymette the
defendant appealed his conviction of violating the statute making it a
misdemeanor to "wear any bowie knife . . . under his clothes, or . . .
concealed about his person." The evidence showed that the defendant, with
"a bowie-knife concealed under his vest," went into a hotel looking for an
individual he said he intended to kill. He contended on appeal that the
conviction violated the provision of the Tennessee constitution declaring
"that the free white men of this State have a right to keep and bear arms
for their common defence." The court emphasized the presence and
significance of the word "common." But although it was obvious from the
facts recited that the defendant was not engaged in any character of
militia service on the occasion in question, but was rather engaged only in
an entirely personal activity of his own, the Aymette court did not make
this a ground for its decision. Rather, it appears to have affirmed on the
basis that [t]he Legislature . . . have a right to prohibit the wearing or
keeping weapons . . . which are not usual in civilized warfare, or would
not contribute to the common defence" and, alternatively, that "the
Legislature may prohibit such manner of wearing [ arms] as would never be
resorted to by persons engaged in the common defence." Id. at 159.
17. In Robertson the Court, in upholding the constitutionality of the
federal statute authorizing the apprehension, imprisonment and return of
deserting merchant seamen, stated, in the passage obviously referred to in
the government's Miller brief, as follows (17 S.Ct. at 329):
". . . the first 10 amendments to the constitution, commonly known as the
'Bill of Rights,' were not intended to lay down any novel principles of
government, but simply to embody certain guaranties and immunities which we
had inherited from our English ancestors, and which had, from time
immemorial, been subject to certain well-recognized exceptions, arising
from the necessities of the case. In incorporating these principles into
the fundamental law, there was no intention of disregarding the exceptions,
which continued to be recognized as if they had been formally expressed.
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; the provision that no person
shall be twice put in jeopardy (article 5) does not prevent a second trial,
if upon the first trial the jury failed to agree, or if the verdict was set
aside upon the defendant's motion . . . nor does the provision of the same
article that no one shall be a witness against himself impair his
obligation to testify, if a prosecution against him be barred by the lapse
of time, a pardon, or by statutory enactment . . . Nor does the provision
that an accused person shall be confronted with the witnesses against him
prevent the admission of dying declarations, or the depositions of
witnesses who have died since the former trial." (emphasis added)
The Miller opinion cites Robertson. Miller, 59 S.Ct. at 820 n.3.
18. We also observe that the Miller opinion's above reference in quotation
marks to a shotgun "'having a barrel of less than eighteen inches in
length'" is a quotation from section 1 of the National Firearms Act, not
from the indictment (which refers to "a double barrel 12-gauge Stevens
shotgun having a barrel less than 18 inches in length").
19. We note that Justice Thomas, in his concurring opinion in Printz v.
United States, 117 S.Ct. 2365, 2386 n.1 (1997), remarked that "[i]n Miller,
we determined that the Second Amendment did not guarantee a citizen's right
to possess a sawed-off shotgun because that weapon had not been shown to be
'ordinary military equipment' that could 'contribute to the common
defense.' The Court did not, however, attempt to define, or otherwise
construe, the substantive right protected by the Second Amendment."
Further, in Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942), the
First Circuit interpreted Miller as resting entirely on the type of weapon
involved not having any reasonable relationship to preservation or
efficiency of a well regulated militia. The Cases court, however, stated
that "we do not feel that the Supreme Court in this case [Miller] was
attempting to formulate a general rule applicable to all cases. The rule
which it laid down was adequate to dispose of the case before it and that
we think was as far as the Supreme Court intended to go." Id., 131 F.2d at
922. Cases thereafter observes:
"Considering the many variable factors bearing upon the question it seems
to us impossible to formulate any general test by which to determine the
limits imposed by the Second Amendment but that each case under it, like
cases under the due process clause, must be decided on its own facts and
the line between what is and what is not a valid federal restriction
pricked out by decided cases falling on one side or the other of the line.
" Id.
Cases then goes on, without further analysis or citation of authority, to
conclude that although the weapon there involved (a .38 caliber revolver) "
may be capable of military use, or . . . familiarity with it . . . of value
in training a person to use a comparable weapon of military type,"
nevertheless the Second Amendment was not infringed because "there is no
evidence that the appellant was or ever had been a member of any military
organization or that his use of the weapon . . . was in preparation for a
military career" but he was rather "simply on a frolic of his own and
without any thought or intention of contributing to the efficiency of the
well regulated militia which the Second Amendment was designed to foster .
. . ." Id. at 922-23.
In United States v. Warin, 530 F.2d 103 (6th Cir. 1976), the court (
rejecting a Second Amendment challenge to a conviction for possessing an
unregistered 7 ½ inch barrel submachine gun contrary to the National
Firearms Act), though concluding that "'the Second Amendment right' 'to
keep and bear arms' applies only to the right of the State to maintain a
militia and not to the individual's right to bear arms,'" nevertheless
recognized that this conclusion was not based on Miller, stating that
Miller "did not reach the question of the extent to which a weapon which is
'part of the ordinary military equipment' or whose 'use could contribute to
the common defense' may be regulated" and agreeing with Cases "that the
Supreme Court did not lay down a general rule in Miller." Id., 530 F.2d at
105-06. The court also stated that the Second Amendment, even if it
protected individual rights, "does not constitute an absolute barrier to
the congressional regulation of firearms," noting that "even the First
Amendment has never been treated as establishing an absolute prohibition
against limitations on the rights guaranteed therein." Id. at 107.
20. Article 1, § 8 commences "The Congress shall have Power," and states in
clauses 15 and 16:
"To provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the
discipline prescribed by Congress;"
21. The government relies on language in a footnote in Lewis v. United
States, 100 S.Ct. 915, 921 n.8 (1980), stating with respect to the then
felon-in-possession statute (former 18 U.S.C. App. § 1202(a)(1)):
"These legislative restrictions on the use of firearms are neither based
upon constitutionally suspect criteria, nor do they trench upon any
constitutionally protected liberties. See United States v. Miller, . . .,
59 S.Ct. 816, 818 . . . (1939) (the Second Amendment guarantees no right to
keep and bear a firearm that does not have "some reasonable relationship to
the preservation or efficiency of a well regulated militia") ."
This does not suggest a collective rights or sophisticated collective
rights approach to the Second Amendment any more than does Miller itself.
We also note that recognition that the Second Amendment does not prohibit
legislation such as former § 1202(a)(1) is in no way inconsistent with an
individual rights model. See, e.g., Robertson v. Baldwin, 17 S.Ct. 326, 329
(1897) (quoted in note 17, supra) (bill of rights protections are not
absolutes but subject to exceptions, so the First Amendment does not permit
the publication of libels, the Second Amendment "is not infringed by laws
prohibiting the carrying of concealed weapons," the double jeopardy clause
does not preclude retrial where the jury fails to agree, the confrontation
clause does not exclude dying declarations, etc.). See also Robert Dowlut,
The Right to Arms: Does the Constitution or the Predilection of Judges
Reign?, 36 Okla L. Rev. 65, 96 (1983) ("Colonial and English societies of
the eighteenth century, as well as their modern counterparts, have excluded
infants, idiots, lunatics, and felons [from possessing firearms].");
Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of
the Right to "Bear Arms", 49 Law & Contemp. Probs. 151 (1986) ("violent
criminals, children, and those of unsound mind may be deprived of firearms
. . . ."); Don B. Kates, Jr., Handgun Prohibition and the Original Meaning
of the Second Amendment, 82 Mich. L. Rev. 204, 266 ( 1983) ("Nor does it
seem that the Founders considered felons within the common law right to
arms or intended to confer any such right upon them."). We further observe
that Lewis presented no Second Amendment challenge to the § 1202(a)(1)
conviction and the Second Amendment was not at issue there.
The government also cites in this connection our decisions in United States
v. Williams, 446 F.2d 486 (5th Cir. 1971), and United States v. Johnson,
441 F.2d 1134 (5th Cir. 1971), but these National Firearms Act unregistered
sawed-off shotgun prosecutions do no more than apply Miller to virtually
identical facts and do not adopt or suggest that Miller adopted a
collective rights or sophisticated collective rights approach to the Second
Amendment.
22. There is no contention here that the Beretta pistol possessed is a kind
or type of weapon that is neither "any part of the ordinary military
equipment" nor such "that its use could contribute to the common defense"
within the language of Miller (nor that it is otherwise within the kind or
type of weapon embraced in the government's second Miller argument, e.g., "
weapons which can have no legitimate use in the hands of private
individuals" so as to be categorically excluded from the scope of the
Second Amendment under Miller's holding).
23. As noted below in our discussion of the history of the Second
Amendment, many Americans at this time not only feared a standing army but
also a select militia, a militia comprised of only a relatively few
selected individuals (perhaps the youngest and fittest) who were more
frequently and better trained and equipped than the general, unorganized
militia. Such a select militia would be analogous to today's National
Guard.
24. See U.S. Const. Art. I, § 1, Cl. 1 ("[a]ll legislative Powers herein
granted shall be vested in a Congress of the United States . . . ."); Art
1, § 8, Cl. 16 ("reserving to the States respectively, the Appointment of
the Officers, and the Authority of training the Militia according to the
discipline prescribed by Congress."); Art. II, § 1, Cl. 1 ("The executive
Power shall be vested in a President of the United States of America.");
Art. III, § 1, Cl. 1 ("The judicial Power of the United States, shall be
vested in one supreme Court . . . ."); amend. I ("Congress shall make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.") (emphasis added); amend. II ("[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.") (
emphasis added); amend. IV ("The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.") (emphasis added); amend. IX ("[t]he enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."); amend. X ("[t]he powers not
delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.").
It is also plain that the First Congress knew full well how to distinguish
between "the people" and the states, e.g. amend. X.
25. See U.S. Const. Art. 1, § 8, Cl. 15 ("[t]o provide for calling forth
the Militia to execute the Laws of the Union, suppress Insurrections and
repel Invasions;" amend. V ("No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentation or
indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public
danger . . . .").
26. The cited portions of Casey and Moore quote with approval from Justice
Harlan's dissenting opinion in Poe v. Ullman, 81 S.Ct. 1752, 1776-77 (1961
), the following passage (among others), viz:
"'[T]he full scope of the liberty guaranteed by the Due Process Clause
cannot be found in or limited by the precise terms of the specific
guarantees elsewhere provided in the Constitution. This 'liberty' is not a
series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion; the right to keep and bear
arms; the freedom from unreasonable searches and seizures; and so on.'"
The same language is quoted with approval in Justice White's Moore dissent.
Id., 97 S.Ct. at 1957-58. An earlier portion of the Casey opinion speaks of
rejecting the notion that Fourteenth Amendment "liberty encompasses no more
than those rights already guaranteed to the individual against federal
interference by the express provisions of the first eight Amendments." Id.
at 2804-05 (emphasis added).
27. Justice Black's concurring opinion in Duncan quotes with approval a
portion of the remarks of Senator Howard on introducing the Fourteenth
Amendment for passage in the Senate, stating that its privileges and
immunities clause should include:
"'. . . the personal rights guarantied and secured by the first eight
amendments of the Constitution; such as the freedom of speech and of the
press; the right of the people peaceably to assemble and petition the
Government for a redress of grievances, a right appertaining to each and
all the people; the right to keep and to bear arms; the right to be
exempted from the quartering of soldiers in a house without the consent of
the owner; the right to be exempt from unreasonable searches and seizures,
and from any search or seizure except by virtue of a warrant issued upon a
formal oath or affidavit; the right of an accused person to be informed of
the nature of the accusation against him, and his right to be tried by an
impartial jury of the vicinage; and also the right to be secure against
excessive bail and against cruel and unusual punishments.'" Id. at 1456 (
emphasis added).
28. New Hampshire's 1784 Constitution contained such a provision and Rhode
Island's 1790 ratification convention proposed an amendment to the United
States Constitution that would have included a conscientious objector
clause.
29. See Ala. Const. Art. 1, § 23 (1819) ("Every citizen has a right to bear
arms in defense of himself and the state."); Conn. Const. Art. I, § 17
(1818) ("Every citizen has a right to bear arms in defense of himself and
the State."); Ind. Const. Art. I, § 20 (1816) ("That the people have a
right to bear arms for the defence of themselves and the State; and that
the military shall be kept in strict subordination to the civil power.");
Ky. Const. Art. 10, ¶ 23 (1792) ("That the right of the citizens to bear
arms in defense of themselves and the State, shall not be questioned");
Mich. Const. Art. I, § 13 (1835) ("Every person has a right to keep and
bear arms for the defense of himself and the State."); Miss. Const. Art. I
, § 23 (1817) ("Every citizen has a right to bear arms, in defence of
himself and the State."); Mo. Const. Art. XIII, § 3 (1820) ("That the
people have the right peaceably to assemble for their common good, and to
apply to those vested with the powers of government for redress of
grievances by petition or remonstrance; and that their right to bear arms
in defense of themselves and of the State cannot be questioned.");Ohio
Const. Art. VIII, § 20 (1802) ("That the people have a right to bear arms
for the defense of themselves and the State; and as standing armies, in
time of peace, are dangerous to liberty, they shall not be kept up, and
that the military shall be kept under strict subordination to the civil
power."); Pa. Const., Declaration of the Rights of the Inhabitants of the
Commonwealth or State of Pennsylvania, Art. XIII (September 28, 1776) ("
That the people have a right to bear arms for the defence of themselves and
the state;"); Pa. Const. Art. I, § 21 (1790) ("The right of the citizens to
bear arms in defense of themselves and the State shall not be
questioned."); Vt. Declaration of the Rights of the Inhabitants of the
State of Vermont Chp. 1 art. XV (July 8, 1777) ("That the people have a
right to bear arms for the defence of themselves and the State") (note,
Vermont was claimed by New York, and was not recognized as a state until
1791).
30. We also observe that to interpret state constitutional provision
protecting the right of the citizen or the people to "bear arms" as
applying only where the individual is actively engaged in actual military
service is necessarily to either (1) contemplate actual military service
for that purpose as including military service other than that which is
ordered or directed by the government; or (2) construe the constitutional
provision as saying no more than that the citizen has a right to do that
which the state orders him to do and thus neither grants the citizen any
right nor in any way restricts the power of the state. Of course, the
latter difficulty is especially applicable to the theory that such state
constitutional provisions grant rights only to the state. While two (and
only two) state courts (both in the twentieth century) have seemingly
adopted that view, those two decisions do not appear to even recognize,
much less attempt to justify, the anomaly of construing a constitutional
declaration of rights as conferring rights only on the state which had them
anyway. See City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (Kan. 1905)
(in prosecution for carrying a pistol within city limits while intoxicated,
construing bill of rights provision "that the people have the right to bear
arms for their defense and security" as one which "refers to the people as
a collective body" and which "deals exclusively with the military.
Individual rights are not considered in this section."); Commonwealth v.
Davis, 343 N.E.2d 847 (Mass. 1976) (in prosecution for possession of
shotgun with barrel less than 18 inches long, provision of § 17 of bill of
rights that "the people have a right to keep and bear arms for the common
defense" is "not directed to guaranteeing individual ownership or
possession of weapons;" while a "law forbidding the keeping by individuals
of arms that were used in the militia service might then have interfered
with the effectiveness of the militia and thus offended the art. 17 right .
. . that situation no longer exists; our militia, of which the backbone is
the National Guard, is now equipped and supported by public funds.").
31. We note that in Aymette, supra, the Tennessee Supreme Court, in
analyzing § 26 of its bill of rights ("that the free white men of this
State have a right to keep and bear arms for their common defence"),
construed differently the "keep" and the "bear" portions of that section.
As to the "bear" aspect, the court looked to § 28 of the bill of rights ("
no citizen of this State shall be required to bear arms provided he will
pay an equivalent") and opined that "bear" arms "has a military sense." It
likewise said that in § 26 "the arms the right to keep which is secured are
such as are usually employed in civilized warfare" not "those weapons which
are usually employed in private broils, and which are efficient only in the
hands of the robber and the assassin." Aymette thereafter observed that as
to "arms" of the type covered by § 26:
"The citizens have the unqualified right to keep the weapon, it being of
the character before described as being intended by this provision. But the
right to bear arms is not of that unqualified character. The citizens may
bear them for the common defence; but it does not follow that they may be
borne by an individual, merely to terrify the people or for purposes of
private assassination. And, . . . the Legislature may prohibit such manner
of wearing as would never be resorted to by persons engaged in the common
defence." (emphasis added)
This is consistent with the Court's earlier observation respecting § 26
that "although this right must be inviolably preserved, yet it does not
follow that the Legislature is prohibited altogether from passing laws
regulating the manner in which these arms may be employed." (emphasis
added). A "military" connotation is given to "bear" and to some extent to "
arms" but not to "keep." Beyond such connection as may arise from the
general type of weapon, no character of military status or activity
whatever was required to come within the protected right to "keep . . .
arms;" that right was "unqualified;" thought the "the right to bear arms is
not of that unqualified character."
32. It seems clear under longstanding and generally accepted principles of
statutory construction, that, at least where the preamble and the operative
portion of the statute may reasonably be read consistently with each other,
the preamble may not properly support a reading of the operative portion
which would plainly be at odds with what otherwise would be its clear
meaning. See, e.g., Dwarris, A General Treatise on Statutes, 268, 269 (Wm.
Gould & Sons, 1871) (footnotes omitted) ("The general purview of a statute
is not, however, necessarily to be restrained by any words introductory to
the enacting clauses. Larger and stronger words in the enactment part of a
statute may extend it beyond the preamble. If the enacting words are plain,
and sufficiently comprehensive to embrace the mischief intended to be
prevented, they shall extend to it, though the preamble does not warrant
the construction. . . . But though the preamble cannot control the enacting
part of a statute, which is expressed in clear and unambiguous terms, yet,
if any doubt arise on the words of the enacting part, the preamble may be
resorted to, to explain it. In truth, it then resolves itself into a
question of intention; or in other words, recourse is had to the primary
rules of interpretation. For the words being doubtful, the preamble is
compared to the rest of the act, in order to collect the intention of the
legislature, whether they meant it to extend to a case like that under
consideration."); Sedgwick, The Interpretation and Construction of Statutes
and Constitutional Law, 43 ( Fred Rothman & Co. 1980) (reprint of 1874
edition with notes) ("In the modern English cases it is said that the
preamble may be used to ascertain and fix the subject matter to which the
enacting part is to be applied. So, the purview or body of the act may even
be restrained by the preamble, when no inconsistency or contradiction
results. But it is well settled that where the intention of the Legislature
is clearly expressed in the purview, the preamble shall not restrain it,
although it be of much narrower import."); Joel P. Bishop, Commentaries on
the Written Laws and Their Interpretation, 49 (Little, Brown, 1882)
(footnotes omitted) ("As showing the inducements to the act, it may have a
decisive weight in a doubtful case. But where the body of the statute is
distinct, it will prevail over a more restricted preamble. . . . We look to
this introductory matter for the general intent of the legislature,-the
reasons and principles upon which the law proceeds. So that, to the extent
to which these can influence the interpretation, the preamble becomes
important. . . . In the words of Ellenborough, C.J.: 'In a vast number of
acts of Parliament, although a particular mischief is recited in the
preamble, yet the legislative provisions extend far beyond the mischief
recited. And whether the words shall be restrained or not must depend on a
fair exposition of the particular statute in each particular case, and not
upon any universal rule of construction.'").
We also observe the various particular provisions of the bill of rights of
many early state constitutions contained introductory justification
clauses, usually in the form of a general statement of political or
governmental philosophy. Examples are given in Volokh, Commonplace Second
Amendment, supra n.10, 794-95, 814-21. One such example is the provision of
the New Hampshire Constitution of 1784 (pt. 1, art. XVII) stating: "[i] n
criminal prosecutions, the trial of facts in the vicinity where they happen
is so essential to the security of the life, liberty and estate of the
citizen, that no crime or offence ought to be tried in any other county
than that in which it is committed. . . ." It would be absurd to construe
this provision to apply only when a judge agrees with the defendant that
trial of the case in another county would likely jeopardize that particular
defendant's life, liberty or estate.
33. See also Senate Subcomm. on the Constitution of the Committee on The
Judiciary, 97 Cong., 2nd Sess., The Right to Keep and Bear Arms (Comm.
Print 1982): "In 1623, Virginia forbade its colonists to travel unless they
were 'well armed' . . . In 1658 it required every householder to have a
functioning firearm within his house." Id. at 9 (footnote omitted). The
Militia Act of 1792, enacted May 8, 1792, defined the militia as "each and
every free able-bodied white male citizen . . . who is or shall be of age
eighteen years, and under the age of forty-five years . . . ." and required
each to "provide himself with a good musket . . . or with a good rifle. .
." 1 Stat. 271 (1792).
The modern militia statute, 10 U.S.C. § 311 provides:
"(a) The militia of the United States consists of all able-bodied males at
least 17 years of age and, except as provided in section 313 of title 32,
under 45 years of age who are, or who have made a declaration of intention
to become, citizens of the United States and of female citizens of the
United States who are members of the National Guard.
(b) The classes of the militia are-
(1) the organized militia, which consists of the National Guard and the
Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia
who are not members of the National Guard or the Naval Militia."
34. "That the People have a Right to keep & to bear Arms; that a well
regulated Militia, composed of the Body of the People, trained to Arms, is
the proper natural and safe Defence of a free State . . . ." Richmond
Antifederal Committee Proposed Bill of Rights, § 17, reprinted in Young,
The Origin of the Second Amendment (2nd ed. 1995) (Golden Oak Books) (
hereafter Young), at 390.
Virginia's proposed Bill of Rights included a similar provision: "That the
people have a right to keep and bear arms; that a well-regulated militia,
composed of the body of the people trained to arms, is the proper, natural,
and safe defence of a free state . . . ." 3 Jonathan Elliot, The Debates in
the Several State Conventions on the Adoption of the Federal Constitution
659 (2d ed., 1836). North Carolina proposed a virtually identical
provision, 4 Jonathan Elliot, The Debates in the Several State Conventions
on the Adoption of the Federal Constitution 244 (2d ed., 1836), as also did
New York, New York Convention, July 26, 1788, reprinted in Young, supra, at
480-88.
35. "It has been urged that they [standing armies] are necessary to provide
against sudden attacks. Would not a well regulated militia, duly trained to
discipline, afford ample security?" The Impartial Examiner, Virginia
Independent Chronicle, February 27, 1788, excerpt reprinted in Young,
supra, at 285.
"A well regulated and disciplined militia, is at all times a good objection
to the introduction of that bane of all free governments-a standing army."
Governor John Hancock, New York Journal, January 28, 1790, reprinted in
Young, supra, at 731.
36. See, e.g., Debates In The Convention of the Commonwealth of Virginia,
reprinted in 3 J. ELLIOT, debates in the several state Conventions 425 (3d
ed. 1937) (statement of George Mason, June 14, 1788) ("Who are the militia
? They consist now of the whole people...."); letters from the federal
farmer to the republican 123 (W. Bennett ed. 1978) (ascribed to Richard
Henry Lee) ("[a] militia, when properly formed, are in fact the people
themselves...."); Letter from Tench Coxe to the Pennsylvania Gazette (Feb.
20, 1778), reprinted in The documentary history of the ratification of the
constitution (Mfm. Supp. 1976) ("Who are these militia? are they not
ourselves.") (emphasis in original).
37. Hamilton in Federalist 29 likewise obviously considered the militia as
being composed of "the people at large," though he did not believe such a
force could be made very effective. He states that "disciplining all of the
militia" would be "futile," requiring more than "a month" (obviously per
year), and that "[l]ittle more can reasonably be aimed at with respect to
the people at large than to have them properly armed and equipped; and in
order to see that this be not neglected, it will be necessary to assemble
them once or twice in the course of a year." Hamilton therefore took the
position that "the proper establishment of the militia" also required "the
formation of a select corps of moderate size." The Federalist Papers, supra
at 184-85.
38. See Appendix-part 1.
39. See Patrick Henry, Virginia Convention, June 5, 1788 (excerpt reprinted
in Young, supra 34 at 373) ("Your militia is given up to Congress . . . of
what service would militia be to you, when, most probably, you will not
have a single musket in the state? [F]or, as arms are to be provided by
Congress, they may or may not furnish them."); Patrick Henry, Virginia
Convention, June 9, 1788 (excerpt reprinted in Young, supra at 381) ("We
have not one fourth of the arms that would be sufficient to defend
ourselves. The power of arming the militia, and the means of purchasing
arms, are taken from the states by the paramount powers of Congress. If
Congress will not arm them, they will not be armed at all."); George Mason,
Virginia Convention, June 14, 1788 (excerpt reprinted in Young, supra at
401) ("Under various pretences, Congress may neglect to provide for arming
and disciplining the militia; and the state governments cannot do it, for
Congress has an exclusive right to arm them . . . . Should the national
government wish to render the militia useless, they may neglect them, and
let them perish, in order to have a pretence of establishing a standing
army.").
40. Aristocrotis, The Government of Nature Delineated or An Exact Picture
of the New Federal Constitution [Anti-Federalist satire of the Federalist
position], April 15, 1788 (excerpts reprinted in Young, supra note 34, at
329-335) ("The second class or inactive militia, comprehends all the rest
of the peasants; viz. the farmers, mechanics, labourers, etc. which good
policy will prompt government to disarm. It would be dangerous to trust
such a rable as this with arms in their hands."); Letter from George Mason
to Thomas Jefferson (May 26, 1788) (excerpt reprinted in Young, supra at
365-66) ("There are many other things very objectionable in the proposed
new Constitution; particularly the almost unlimited Authority over the
Militia of the several States; whereby, under Colour of regulating, them
may disarm, or render useless the Militia, the more easily to govern by a
standing Army; or they may harass the Militia, by such rigid Regulations,
and intollerable Burdens, as to make the People themselves desire it's
Abolition."); George Mason, Virginia Convention, June 14, 1788 (excerpt
reprinted in Young, supra at 401) ("There are various ways of destroying
the militia. A standing army may be perpetually established in their stead.
I abominate and detest the idea of a government, where there is a standing
army. The militia may be here destroyed by that method which has been
practised in other parts of the world before; that is, by rendering them
useless-by disarming them."); William Lenoir, North Carolina Convention,
July 30, 1788 (excerpt reprinted in Young, supra at 496-500) (" When we
consider the great powers of Congress, there is great cause of alarm. They
can disarm the militia. If they were armed, they would be a resource
against great oppressions.").
41. Patrick Henry, Virginia Convention, June 5, 1788 (excerpt reprinted in
Young, supra note 34, at 374) ("If they [Congress] neglect or refuse to
discipline or arm our militia, they will be useless: the states can do
neither-this power being exclusively given to Congress.").
42. See A Number of Letters from the Federal Farmer to the Republican,
Letter III, November 8, 1787 (reprinted in Young, supra note 34, at 91) ("
it is true, the yoemanry of the country possess the lands, the weight of
property, possess arms, and are too strong a body of men to be openly
offended-and, therefore, it is urged [by the Federalists], they will take
care of themselves, that men who shall govern will not dare pay any
disrespect to their opinions. It is easily perceived, that if they have not
their proper negative upon passing laws in congress, or on the passage of
laws relative to taxes and armies, they may in twenty or thirty years be by
means imperceptible to them, totally deprived of that boasted weight and
strength: This may be done in a great measure by congress, if disposed to
do it, by modelling the militia. Should one fifth, or one eighth part of
the men capable of bearing arms, be made a select militia, as has been
proposed, and those the young and ardent part of the community, possessed
of but little or no property, and all the others put upon a plan that will
render them of no importance, the former will answer all the purposes of an
army, while the latter will be defenceless."). See also note 58, infra.
43. Luther Martin, Baltimore Maryland Journal, March 18, 1788 (excerpt
reprinted in Young, supra note 34, at 301-302) ("That a system [the
Constitution] may enable government wantonly to exercise power over the
militia, to call out an unreasonable number from any particular state
without its permission, and to march them upon, and continue them in,
remote and improper services-that the same system should enable the
government totally to discard, render useless, and even disarm the militia,
when it would remove them out of the way of opposing its ambitious views,
is by no means inconsistent, and is really the case in the proposed
constitution . . . . It [the federal government] has also, by another
clause, the powers, by which only the militia can be organized and armed,
and by the neglect of which they may be rendered utterly useless and
insignificant, when it suits the ambitious purposes of government:-Nor is
the suggestion unreasonable . . . that the government might improperly
oppress and harass the militia, the better to reconcile them to the idea of
regular troops, who might relieve them of the burthen, and to render them
less opposed to the measures it might be disposed to adopt for the purpose
of reducing them to that state of insignificancy and uselessness. ");
George Mason, Virginia Convention, June 14, 1788 (excerpt reprinted in
Young, supra at 401,402) ("If they [Congress] ever attempt to harass and
abuse the militia, they may abolish them, and raise a standing army in
their stead. . . . If, at any time, our rulers should have unjust and
iniquitous designs against our liberties, and should wish to establish a
standing army, the first attempt would be to render the service and use of
militia odious to the people themselves-subjecting them to unnecessary
severity of discipline in time of peace, confining them under martial law,
and disgusting them so much as to make them cry out. 'Give us a standing
army!'").
44. See A Democratic Federalist, Philadelphia Pennsylvania Herald, October
17, 1787 (excerpts reprinted in Young, supra note 34, at 46) ("[T]he
federal rulers are vested with each of the three essential powers of
government-their laws are to be paramount to the laws of the different
states. What then will there be to oppose their encroachments? Should they
ever pretend to tyrannize over the people, their standing army will silence
every popular effort; it will be theirs to explain the powers which have
been granted to them. . . . [T]he liberty of the people will be no more. .
. ." Centinel II, Philadelphia Independent Gazetteer, October 24, 1787
(excerpts reprinted in Young, supra at 59) ("A standing army with regular
provision of pay and contingencies, would afford a strong temptation to
some ambitious man to step up into the throne, and to seize absolute
power."); Philadelphienses III, Philadelphia Freeman's Journal, December 5,
1787 (excerpts reprinted in Young, supra at 139) ("And in respect to the
standing army, it will only be made up of profligate idle ruffians, whose
prowess will chiefly consist of feats of cruelty exercised on their
innocent fellow citizens . . . ."); A Farmer, Exeter, New Hampshire
Freeman's Oracle, January 11, 1788 (excerpts reprinted in Young, supra at
206) ("An army, either in peace or war, is like the locust and caterpillers
of Egypt; they bear down all before them-and many times, by designing men,
have been used as an engine to destroy the liberties of a people, and
reduce them to the most abject slavery. . . . Organize your militia, arm
them well, and under Providence they will be a sufficient security."); A
Ploughman, Winchester Virginia Gazette, March 19, 1788 ( reprinted in
Young, supra at 303) ("And in order to rivet the chains of perpetual
slavery upon us, they have made a standing army an essential part of the
Federal Constitution, which the world cannot produce an instance of a more
permanent foundation to erect the fabrik of tyranny upon; . . . to keep a
standing army, gives cause to suspect that the rulers are afraid of the
people, or that they may have a design upon them. If their designs are
oppressive, the army is necessary to compleat the tyranny; if the army is
the strongest force in a State, it must be a military government, and it is
eternally true, that a free government and a standing army are absolutely
incompatible.").
45. See Philadelphia Freeman's Journal, January 16, 1788 (excerpt reprinted
in Young, supra note 34, at 211-13) ("They well know the impolicy of
putting or keeping arms in the hands of a nervous people, at a distance
from the seat of a government, upon whom they mean to exercise the powers
granted in that government. . . . Tyrants have never placed any confidence
on a militia composed of freemen. Experience has taught them that a
standing body of regular forces, whenever they can be completely
introduced, are always efficacious in enforcing their edicts, however
arbitrary . . . . There is no instance of any government being reduced to a
confirmed tyranny without military oppression; and the first policy of
tyrants has been to annihilate all other means of national activity and
defence, when they feared opposition, and to rely solely upon standing
troops."); Luther Martin, Genuine Information IV, Baltimore Maryland
Gazette, January 17, 1788 (excerpt reprinted in Young, supra at 221) ("[W]
hen a government wishes to deprive their citizens of freedom, and reduce
them to slavery, it generally makes use of a standing army for that
purpose, and leaves the militia in a situation as contemptible as possible,
least they might oppose its arbitrary designs-That in this system [the
Constitution], we give the general government every provision it could wish
for, and even invite it to subvert the liberties of the States and their
citizens, since we give them the right to encrease and keep up a standing
army as numerous as it would wish, and by placing the militia under its
power, enable it to leave the militia totally unorganized, undisciplined
and even to disarm them; while the citizens, so far from complaining of
this neglect, might even esteem it a favour in the general government, as
thereby they would be freed from the burthen of military duties, and left
to their own private occupations or pleasures."); Patrick Henry, Virginia
Convention, June 5, 1788 (excerpts reprinted in Young, supra at 370) ("Have
we the means of resisting disciplined armies, when our only defence, the
militia, is put into the hands of Congress?").
46. George Mason, Virginia Convention, June 14, 1788 (excerpt reprinted in
Young, supra note 34, at 402) ("I wish that, in case the general government
should neglect to arm and discipline the militia, there should be an
express declaration that the state governments might arm and discipline
them.").
47. See Appendix-part 2.
48. See Appendix-part 3.
49. See Appendix-part 4.
50. See Appendix-part 5.
51. See Appendix-part 6.
52. James Madison, Virginia Convention, June 14, 1788 (excerpt reprinted in
Young, supra note 34, at 403) ("I cannot conceive that this Constitution,
by giving the general government the power of arming the militia, takes it
away from the state governments. The power is concurrent, and not
exclusive."); Patrick Henry, Virginia Convention, June 14, 1788 (excerpt
reprinted in Young, supra at 407) ("The great object is, that every man be
armed. . . . When this power is given up to Congress without limitation or
bounds, how will your militia be armed? You trust to chance; for sure I am
that that nation which shall trust its liberties in other hands cannot long
exist. If gentlemen are serious when they suppose a concurrent power, where
can be the impolicy to amend it?").
53. Some of the Federalists' responses, e.g., James Madison's in Federalist
46, spoke of the militia as defending the people against federal tyranny.
Opponents of the individual rights view assert that these references to the
militia indicate that the Federalists' response depended not on the people
being armed, but on the states having the power to arm the militia. While
it is true that the Anti-Federalists desired this concession, the Second
Amendment did not provide it. We think Madison's message in Federalist 46
is clear: the Anti-Federalists were not to worry about federal tyranny
because those who comprised the militia could resist such tyranny since the
the American people were armed. Federalist 46 speaks about the significance
of the government trusting the people with arms and of the states as a
"barrier against the enterprises of ambition", but does not say that the
state governments had (or would be given) power to arm the militia.
Federalist 46 clearly depends, in large part, on the American people being
armed. In this respect, Madison's rationale in Federalist 46 is
substantially the same as that of the Second Amendment which he would craft
over a year later.
54. This was one of several clauses which Madison's proposal, in its fourth
("fourthly") section, called for to be inserted in art. 1, § 9, between
clauses 3 and 4, the others to be inserted there all being provisions which
eventually became the First, Third, Fourth, Eighth and Ninth Amendments and
portions of the Fifth and Sixth Amendments.
The other portions of what became the Fifth and Sixth Amendments, as well
as what became the Seventh Amendment, Madison's proposal would have as
additions to Article 3, § 2.
Madison's proposal called for what became the Tenth Amendment to be (
together with a separation of powers provision) in a new Article 7, with
existing Article 7 to be renumbered Article 8.
Madison also proposed to amend Art. 1, § 2, cl. 3 (number of
representatives), Art. 1, § 6, cl. 1 (compensation of representatives), and
Art. 1, § 10 (to prohibit states from denying equal rights of conscience,
freedom of the press or jury trial in criminal cases).
55. Before the close vote was taken, Congressman Benson offered another
rationale for striking the clause, and it was he who actually moved to
strike. Benson believed there was no natural right to be exempted from
military service and that such exemptions should be left to the "
benevolence" of the legislature. House of Representatives, Debates, August
17, 1789 (excerpt reprinted in Young, supra note 34, at 697).
56. If this was what Scott was thinking, he was wrong. As will be shown,
proposals to limit the federal government's power to maintain a standing
army were defeated in both the House and the Senate.
57. This rejected amendment read:
"That each state, respectively, shall have the power to provide for
organizing, arming, and disciplining, its own militia, whensoever Congress
shall omit or neglect to provide for the same; that the militia shall not
be subject to martial law, except when in actual service, in time of war,
invasion, or rebellion; and when not in the actual service of the United
States, shall be subject only to such fines, penalties, and punishments, as
shall be directed or inflicted by the laws of its own state." Journal of
the First Session of the Senate 75 (Washington, D.C. 1820).
In Houston v. Moore, 18 U.S. [5 Wheat] 1, 5 L.Ed. 19 (1820), the Supreme
Court held that states retain the power to organize, arm, and discipline
their militias provided that the exercise thereof is not repugnant to the
authority of the Union. The Court reasoned that because the Constitution
failed to divest the states of their preexistent militia powers, such
powers remained. Id. 5 L.Ed. at 22-23. The majority did not rely upon or
even refer to the Second Amendment.
The only mention of the Second Amendment was by Justice Story in his
dissent, wherein he observed that the Second Amendment probably did not
have "any important bearing" on the question of whether states had power to
organize, arm, and discipline their militias. Id. 5 L.Ed. at 31.
It seems likely that if the Second Amendment was intended only to grant the
states concurrent power to organize, arm, and discipline their militias,
the Supreme Court would have relied, at least in part, upon the Second
Amendment for its holding. As it happened, the only mention of the Second
Amendment was by the dissent in pointing out the Second Amendment's
probable irrelevance to the state militia powers issue.
58. See note 42, supra, and the following: John Smilie, Pennsylvania
Convention, December 6, 1787 (excerpts reprinted in Young, supra note 34,
at 145-46) ("I object to the power of Congress over the militia and to keep
a standing army. . . . Congress may give us a select militia which will, in
fact, be a standing army-or Congress, afraid of a general militia, may say
there shall be no militia at all. When a select militia is formed, the
people in general may be disarmed."); Centinel IX, Philadelphia Independent
Gazetteer, January 8, 1788 (excerpt reprinted in Young, supra 192)
(footnote omitted) ("I was ever jealous of the select militia, consisting
of infantry and troops of horse, instituted in this city and some of the
counties, . . . . Are not these corps provided to suppress the first
efforts of freedom, and to check the spirit of the people until a regular
and sufficiently powerful military force shall be embodied to rivet the
chains of slavery on a deluded nation."); A Countryman, New York Journal,
January 22, 1788 (excerpt reprinted in Young, supra at 224) (" Should the
new constitution be sufficiently corrected by a substantial bill of rights
. . . separating the legislative, judicial and executive departments
entirely, and confining the national government to its proper objects; but,
by no means admitting a standing army in time of peace, nor a select
militia, which last, is a scheme that a certain head has, for some time,
been teeming with, and is nothing else but an artful introduction to the
other . . . I imagine we might become a happy and respectable people.");
See An Additional Number of Letters from the Federal Farmer to the
Republican, Letter XVIII, May 1788 (reprinted in Young, supra at 354-55)
(footnote omitted) ("First, 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, and include, according to
the past and general usuage of the states, all men capable of bearing arms;
and that all regulations tending to render this general militia useless and
defenceless, by establishing select corps of militia, or distinct bodies of
military men, not having permanent interests and attachments in the
community to be avoided. . . . But, say gentlemen, the general militia are
for the most part employed at home in their private concerns, cannot well
be called out, or be depended upon; that we must have a select militia;
that is, as I understand it, particular corps or bodies of young men, and
of men who have but little to do at home, particularly armed and
disciplined in some measure, at the public expence, and always ready to
take the field. These corps, not much unlike regular troops, will ever
produce an inattention to the general militia; and the consequence has ever
been, and always must be, that the substantial men, having families and
property, will generally be without arms, without knowing the use of them,
and defenceless; whereas, to preserve liberty, it is essential that the
whole body of the people always possess arms, and be taught alike,
especially when young, how to use them; nor does it follow from this, that
all promiscuously must go into actual service on every occasion. The mind
that aims at a select militia, must be influenced by a truly
anti-republican principle . . . .").
59. Sent to the states at the same time were proposed amendments to Art. 1
, § 2, cl. 3 (number of representatives) and Art. 1, § 6, cl. 1 (
compensation of representatives). Neither was ratified with the Bill of
Rights, although the latter was (at least arguably) ultimately ratified as
the Twenty-seventh Amendment in May 1992.
60. While there is no historical evidence that the states' rights view of
the Second Amendment is correct, we are struck by the absence of any
indication that the result contemplated by the sophisticated collective
rights view was desired, or even conceived of, by anyone.
61. The district court's analysis of the constitutionality of section 922(
g)(8), was essentially as follows:
"18 U.S.C. § 922(g)(8) is unconstitutional because it allows a state court
divorce proceeding, without particularized findings of the threat of future
violence, to automatically deprive a citizen of his Second Amendment
rights. . . . All that is required for prosecution under the Act is a
boilerplate order with no particularized findings. Thus, the statute has no
real safeguards against an arbitrary abridgement of Second Amendment
rights. Therefore, by criminalizing protected Second Amendment activity
based upon a civil state court order with no particularized findings, the
statute is over-broad and in direct violation of an individual's Second
Amendment rights.
By contrast, § 922(g)(8) is different from the felon-in-possession statute,
18 U.S.C. § 922(g)(1), because once an individual is convicted of a felony,
he has by his criminal conduct taken himself outside the class of
law-abiding citizens who enjoy full exercise of their civil rights.
Furthermore, the convicted felon is admonished in state and federal courts
that a felony conviction results in the loss of certain civil rights,
including the right to bear arms. This is not so with § 922(g)(8). . . . It
is absurd that a boilerplate state court divorce order can collaterally and
automatically extinguish a law-abiding citizen's Second Amendment rights,
particularly when neither the judge issuing the order, nor the parties nor
their attorneys are aware of the federal criminal penalties arising from
firearm possession after entry of the restraining order."
United States v. Emerson, 46 F.Supp.2d 598, 610-11 (N.D. Tex. 1999).
62. Likewise, the Supreme Court has remarked that the right to keep and
bear arms is, like other rights protected by the Bill of Rights, "subject
to certain well-recognized exceptions, arising from the necessities of the
case" and hence "is not infringed by laws prohibiting the carrying of
concealed weapons," Robertson v. Baldwin, 17 S.Ct. 326, 329 (1897), or by
laws "which only forbid bodies of men to associate together as military
organizations . . . to drill or parade in cities and towns unless
authorized by law." Presser v. Illinois, 6 S.Ct. 580, 584 (1886).
63. Emerson does not contest that the prohibitions of the order fall
within the literal terms of § 922(g)(8)(C)(ii), and the district court did
not determine otherwise.
64. See also, e.g., 42 Am Jur 2d, Injunctions, § 32 at 606-08 ("To be
entitled to an injunction, the plaintiff must establish that he . . . is
immediately in danger of sustaining, some direct injury as a result of the
challenged conduct. The injunction will not issue unless there is an
imminent threat of illegal action. In other words, the injury or threat of
injury must be real and immediate . . . The apprehension of injury must be
well grounded, which means there is a reasonable probability that a real
injury . . . will occur if the injunction is not granted . . .") (
footnotes omitted; emphasis added); Id. § 8 at 566 ("The standard for
granting a preliminary injunction is essentially the same as for a
permanent injunction, with the exception that the plaintiff must show a
likelihood of success on the merits rather than actual success") (footnote
omitted).
65. As previously observed, see note 6, supra, the present record does not
confront us with and we do not speak to, a situation in which the
defendant's firearm possession is merely incident to (and/or is simply
passive pending initiation and completion of) a good faith effort to rid
himself, as soon after issuance of the disqualifying court order as
reasonably practicable under the circumstances, of the continued possession
of a previously possessed firearm.
66. We reject the special concurrence's impassioned criticism of our
reaching the issue of whether the Second Amendment's right to keep and bear
arms is an individual right. That precise issue was decided by the district
court and was briefed and argued by both parties in this court and in the
district court. Moreover, in reaching that issue we have only done what the
vast majority of other courts faced with similar contentions have done
(albeit our resolution of that question is different). The vast majority
have not, as the special concurrence would have us do, simply said it makes
no difference whether or not the Second Amendment right to keep and bear
arms is an individual right because even if it were an individual right the
conviction (or the challenged statute) would be valid. In this case, unless
we were to determine the issue of the proper construction of section
922(g)(8) in Emerson's favor (which the special concurrence does not
suggest), resolution of this appeal requires us to determine the
constitutionality of section 922(g)(8), facially and as applied, under the
Second Amendment (as well as under the due process clause and the commerce
clause). We have done so on a straightforward basis.
We likewise reject the implied criticism (in the special concurrence's
fourth paragraph) for not mentioning certain "facts" not alleged in the
indictment, not found to be true by any trier of fact, and not relevant to
the section 922(g)(8) violation alleged. The district court dismissed the
indictment and Emerson has not yet been convicted of anything. In fact,
we have been informed that he has been acquitted of state charges relating
to the matter mentioned in the special concurrence.
67. All pending undisposed motions are denied.
-----------------------------------------------