It's not about guns...
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http://www.potowmack.org/brock.html

Ralph Brock, a Texas lawyer, filed this brief with the US Court of Appeals, Fifth Ciruit, as amicus curiae, September 3, 1999, in US v. Emerson.

The Potowmack Institute's amicus brief and other briefs in this case are provided at .../emeramic.html

The District Court's Opinion Memorandum is at http://www.txnd.uscourts.gov/PDFs/emerson.pdf


Other historical references related to the treatment in this brief are provided at:

John Kenneth Rowland, .../1197row.html, previously unpublished PhD dissertation, Ohio State, 1978.
John Kenneth Rowland, Appendix A, US v. Emerson,
Lawrence Cress, "An Armed Community: The Origins and the Meaning of the Right to Bear Arms," J. Am. Hist., 1984.
Leon Friedman, Conscription and the Constitution,Mich. L. Rev., 1969.
Don Higginbotham, The Second Amendment in Historical Context,Constitutional Commentary, October, 1999.

See our Resources File for more.


Statement of Interest of the Amicus Curiae

Your amicus is a lawyer who maintains a solo practice in Lubbock, Texas, and

who has been a member of the bar of this Court since 1978. He has appeared before this

Court numerous times in civil and criminal cases, and while it is unprecedented

for him to side with the Government, the underlying Second and Fifth Amendment

issues in this case are of such overriding importance that he feels compelled to do so.

Your amicus' interest in this case grows out of his interest in constitutional law

and legal history, as exemplified by his series of articles on the legal history of the Texas

boundaries, 1 and his articles answering the pseudo-historical and pseudo-legal arguments

that Texas was illegally annexed into the United States. 2 The order below is grounded

in equally dubious legal history and constitutional theory, to which your amicus

is interested in responding.

In addition, your amicus is also interested in this case as president of

the Women and the Law Section of the State Bar of Texas, as a member of the Women

in the Profession Committee of the State Bar, 3 a writer on women's issues. 4

The statute in question here, 18 U.S.C. § 922(g)(8), particularly protects women

and children by prohibiting possession of a firearm by one under a domestic relations

restraining order, and for that reason you amicus is also interested in

demonstrating that the statute is constitutional.

Your amicus understands that amici curiae will seek leave of

court to file briefs on behalf of the defendant/appellee, and it is desirable to balance

those with briefs on behalf of the Government. The briefs filed on behalf of the defendant/

appellee will argue in support of the individual rights or "Standard Model" interpretation

of the Second Amendment adopted by the district court. Your amicus will demonstrate

that this Court should dispose of the case on the basis of settled law under the doctrine

of stare decisis, but if the Court does reach the Second Amendment issue, a

historical tradition of firearms regulation provides a constitutionally-sound basis for

upholding§ 922(g)(8).

Statement of the Issue 5

Whether 18 U.S.C. § 922(g)(8), which prohibits possession of a firearm while

under a restraining order, is unconstitutional under the Second Amendment.

Argument and Authorities

The statute in question, 18 U.S.C. § 922(g)(8), prohibits the possession of a firearm

by a person who is under a restraining order in a domestic relations case. Section

924(a)(2) provides criminal sanctions for violating § 922(g)(8). The district court

held § 922(g)(8) unconstitutional as a violation of the Second and Fifth Amendments

to the Constitution.United States v. Emerson, 46 F.Supp.2d 598, 611, 613 (N.D.

Tex. 1999).

While the constitutionality of § 922(g)(8) under the Second Amendment has not

been addressed, either by the Supreme Court or by lower courts, the constitutionality of

other firearm possession and transportation statutes consistently have been sustained.

Inasmuch as the constitutional issue here is the same, the result should be the same as

well.

I. The Doctrine of Stare Decisis Dictates the Result

The district court was not writing on a clean slate when it dismissed Emerson's

indictment on Second Amendment grounds. Since the Supreme Court has already

determined that Congress may constitutionally prohibit the possession of a firearm by

certain people or under certain circumstances, and this Court agrees, it is judicial activism

of the worst sort for the district court to ignore those decisions and publish an opinion

that is at odds with settled law. The district court might have denied relief while suggesting

that the Supreme Court should revisit the issue, but under the doctrine of stare decisis,

the district court was bound to follow existing precedent; its refusal to do so is reversible

error.

No individual has ever succeeded in demonstrating injury to an interest protected

by the Second Amendment in federal court. Hickman v. Block, 81 F.3d 98, 101 (9th

Cir. 1996). Accord, United States v. Wright, 117 F.3d 1265, 1274, n.17 (11th Cir. 1997). It

should not be surprising, then, to note that every numbered circuit court, including

this Court, has consistently followed the seminal Supreme Court case on the Second

Amendment, United States v. Miller, 307 U.S. 174 (1939). 6 It would require "an

advanced case of Supreme Court-only tunnel vision" to ignore more than five decades

of consistent interpretation from the federal courts.7

No useful purpose would be served, then, in belaboring the Court with an exegesis

of the applicable case law, except to say that the Fifth Circuit has followed Miller

on two occasions. Both cases, United States v. Johnson, 441 F.2d 1134 (5th Cir.

1971), and United States v. Williams, 446 F.2d 486 (5th Cir. 1971), involved prosecutions

for possession of an unregistered sawed-off shotgun in violation of the National Firearms

Act. In Williams, the defendant "first contends that the statutes [proscribing the

possession of a firearm] are violative of his right to keep and bear arms as guaranteed

by the Second Amendment to the Constitution. This identical question was answered

adversely to appellant's contention in [Miller], and in this Court's recent decision

[in Johnson]." Id., 446 F.2d at 487. If the statutes prohibiting possession of a

firearm in Williams did not violate the Second Amendment, then neither does § 922(g)(8).

Nevertheless, Professor Van Alstyne, who is cited frequently in the district court's

opinion, decries the Supreme Court's "scanty decisions" on the Second Amendment,

complains that "the Second Amendment has generated almost no useful body of law,"

and hints that Miller is no longer good law. 8 Professor Levinson laments that

"[t]he Supreme Court has almost shamelessly refused to discuss the issue. 9 Not only

has the Supreme Court declined every opportunity to revisit Miller, 10 though, but

the fact that it continues to cite Miller suggests that the Court still regards it as

good law. The Seventh Circuit addressed a similar argument in Quilici v. Village of

Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983),

where the appellants argued that Presser v. Illinois, 116 U.S. 252 (1881), upholding

a state firearms regulation against a Second Amendment attack, was no longer good

law:

Quilici, 695 F.2d at 270 (emphasis added).

Likewise, the Third Circuit addressed a similar contention that "the Miller court

was quite simply wrong in its superficial (and one-sided) analysis of the Second Amendment."

United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997).

The Third Circuit responded that "[a]s one of the inferior federal courts subject to the

Supreme Court's precedents, we have neither the license nor the inclination to engage in

such freewheeling presumptuousness." Id. Stated another way, any suggestion that

Miller was wrongly decided and should be overruled "ha[s] no place before this court."

Quilici, 695 F.2d at 270.

Although Miller is sixty years old, the Supreme Court has reaffirmed the decision

twice in the past 35 years, as has this Court in Johnson and Williams, and

Miller and its progeny remain healthy and vital at the turn of the century. Your amicus

respectfully submits that the constitutionality of the firearms possession statutes has been

decided, and under the doctrine of stare decisis, those cases are dispositive of

Emerson's Second Amendment defense.

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[NOTES]

II. The "Standard Model" in Historical Context

The Standard Model, a modern term coined by Glen H. Reynolds, an associate

professor of law at the University of Tennessee, holds simply that the Second Amendment

is interpreted to support an individual right to keep and bear arms. 11 Just as it always is

dangerous to attempt to frame original intent questions "in terms of current policy disputes, "12

accurate history is not likely to be ascertained by "the stringing together of carefully selected

quotations; the aggregate matters." 13 Where original intent is the issue, the questions arise:

whose intent, and in what context? The Pulitzer prize-winning historian and Stanford

professor Jack Rakove has written that

Instead of defining the Second Amendment debate in terms of "collective rights"

or "individual rights," it is more useful to consider that whatever "right" the "right to

keep and bear arms" finally presupposes, it is merely a right granted by the legislative

body, and it has never been considered fundamental. To the extent that legislatures have

always provided for reasonable regulations governing who, when, and where guns may be

possessed and used, the right to keep and bear arms has always been a limited right.

Even in the military (and the term "to bear arms" is a term of art meaning to participate

in military affairs 15), soldiers' access to weapons is strictly regulated.

A. The English precedent

Reading the district court's opinion would lead one to believe that prior to and after

the English Declaration of Rights of 1689, armed Englishmen covered the countryside like

grass in a meadow, bearing arms until they couldn't bear them any longer. Emerson,

46 F.Supp.2d at 602. Nothing could be further from the truth. In 1328, for example, the Statute

of Northampton prohibited anyone to "go nor ride armed by night or by day in fairs, markets,

nor in the presence of the justices or other ministers, nor in no part elsewhere upon pain."

The Declaration of Rights, signed by William of Orange and Queen Mary in 1689, provided

"That the subjects which are Protestants may have arms for their defence suitable to

their condition and as allowed by law." 16 Even Joyce Lee Malcolm, whom the district court

repeatedly quotes almost with reverential fervor, concedes that until 1689 no individual

right to keep and bear arms existed in England. 17 Thus the individual right that Malcolm

divines from the 1689 Declaration was hardly universal. It was limited to Protestant subjects,

and then only to those of historically suitable high rank and wealth, and as allowed by law.

There being no individual right at common law, the phrase "as allowed by law" left it to

Parliament to determine what rights Protestants had to arms. 18 As Sir John Lowther said

in a 1691 Parliamentary debate about whether to allow Protestants to keep guns despite

the traditional class-based prohibitions, it would "arm the mob, which I think is not very

safe for any government."19

Professor Bellesiles notes that the English Declaration of Rights "was entirely in

keeping with earlier arms legislation, which sought to restrict access to all forms of

weaponry."20 Contrary to Malcolm, Bellesiles describes gun ownership in Britain, as in

British America at the time, as "a collective right, collectively denied." 21 In the same vein,

Blackstone stated that the purpose of game laws passed after the Declaration was

the "prevention of popular insurrections and resistance to the government by disarming

the bulk of the people."22 Today, Parliament still determines what arms all British subjects

may possess, and it has severely limited the right.

B. The American precedent

It is generally conceded that the English Declaration of Rights became part of

American common law, leading eventually to the Second Amendment. 23 From the earliest

times in colonial America, Professor Bellesiles notes, gun ownership was carefully

circumscribed, and possession of firearms was not understood as a collective right but

rather as a collective duty necessary to the defense of society. 24 The American law on

bearing arms was derived from English law, where the right to keep and bear arms was

never regarded as a fundamental right of every Englishman. 25

In Virginia, by the time of the Revolution, "the colony reserved to itself the right to

impress arms on any occasion, either as a defensive measure or for use by the state. No

gun ever belonged unqualifiably to an individual." 26 Likewise, "Connecticut, like every other

state during the Revolution, felt not the slightest qualm in impressing firearms as needed

and seizing those belonging to loyalists. The citizens of Connecticut held their guns in

trust for the state, subject to the erratic fear of external dangers." 27

Indeed, Professor Bellesiles suggests that the Second Amendment is not the

culmination of an abiding concern for individual liberties, but the end result of a history of

gun regulation born of fear. 28 "In the context of fear and the perceived need of the framers

of the Constitution to preserve social order," he says, "the Second Amendment may be

seen both as a political gesture to placate the antifederalists and as an effort to regulate

the militia as the best surety against dangerous social upheavals like Shays's [sic]

Rebellion and slave uprisings."29

C. The insurrectionist school of thought

Within the Standard Model school of thought a faction has emerged, called the

insurrectionist school of thought, that posits that the ultimate purpose of an armed citizenry

is to be prepared to fight the government itself. 30 The leading insurrectionist thinker is

Stephen P. Halbrook, a lawyer and author whose practice is devoted to representing the

National Rifle Association, gun importers, manufacturers, dealers and related clients. 31

With all due respect, it is nonetheless disturbing to note that a United States

District Court would rely as heavily on Halbrook's insurrectionist writing as did the district

court in this case. Misreading The Federalist No. 46 (James Madison), the district

court even attempted to draw Madison (hardly an insurrectionalist, Madison described Shays'

Rebellion as "treason," 32) into that camp: "[Madison] assured his fellow citizens that

they need never fear their government because of 'the advantage of being armed.'"

Emerson, 46 F.Supp.2d at 605. What Madison actually wrote, trying to allay

fears not about a democratically-elected government, but fears about a standing army,

was that "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." 33 (Emphasis added).

In No. 46, Madison was comparing the state and federal governments, and his

point was that "the first and most natural attachment of the people will be to the governments

of their respective States." 34 To answer the anti-Federalist fear of a standing army, he

posited an extreme hypothetical in which the people and the states should elect "traitors"

who, to further their ambition, formed a regular army "fully equal to the resources of the

country."35 "[I]t would not be going too far," he said, "to say, that the State governments,

with the people on their side, would be able to repel the danger" with militias twenty-five

time stronger than the standing army. 36 The state militia was the "advantage of being armed,"

but it was the state governments, to whom the people were most loyal, and which appointed

the militia officers, that really formed the insurmountable barrier against the ambition of a

federal government. 37

It was not the threat of a standing army that concerned the Framers so much as

it was the threat of insurrection. America under the Articles of Confederation had its share

of insurrections, the most important one being, at least in its influence on the Framers of

the Constitution, Shays' Rebellion. The Shaysites, armed citizens who sought to overthrow

the government of Massachusetts, would have felt very much at home in the insurrectionist

school.

D. Shays' Rebellion

Shays' Rebellion in western Massachusetts, and the related agrarian unrest

throughout New England and some other states, arose when creditors stopped accepting

farmers' payment in crops instead of specie, and yeomen found themselves in debtor court

or in jail for unpaid debts.38 Late in 1786, the yeomen — now called Regulators— took

up arms to close the debtor courts,39 and those in Massachusetts met with some success. 40

It was not until January 1787 that ideology gave way to rebellion and the Shaysite

Regulators acted on a plan to seize the Confederation arsenal in Springfield, then move on

to Boston and overthrow the state government. 41 That plan failed, but the Shaysites then

embarked on a pattern of raiding and capturing merchants. 42 Early on the morning of February

4, a Massachusetts army of 3,000 men surprised 2,000 Shaysites at Petersham, and

within thirty minutes the Shaysites had scattered into the nearby countryside. 43 After

Petersham, the Shaysites continued to assault merchants, lawyers, state military leaders

and government officials until June, when their activities simply ceased. 44

The agrarian revolt was not limited to Massachusetts. During the same time as

the Massachusetts insurrection developed, Maryland suffered court closings and threats

against the state government, as did South Carolina, New Jersey, Virginia and Pennsylvania. 45

It was Henry Knox, the Confederation's Secretary of War, who coined the term "Shays'

Rebellion," and with an exaggerated sense of alarm about the threat of anarchy and the

impending cancellation of debt and the redistribution of wealth, he and other Nationalist

(later, Federalist) correspondents kept George Washington informed as events unfolded. 46

Washington, in turn, passed the news along to Madison, and Madison, in a letter to

Jefferson, described Virginia officials watching the "prisons and courthouses and clerk's

offices willfully burnt." 47

Perhaps more than any other event of the times, Shays' Rebellion and the other

similar incidents of civil unrest underscored that the threat of insurrection and rebellion was

real and pervasive, and it galvanized Federalist support for a strong national government. 48

Where only five states were represented at the Annapolis convention in September 1786,

when the Regulators were merely closing down debtor courts, twelve of the thirteen states

sent delegates to the Philadelphia Convention in May 1787. 49 Washington attributed his

decision to renounce his public oath of retirement and preside over the Philadelphia

Convention to the Rebellion.50

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E. The Rebellion and the Constitution

How, then, did Shay's Rebellion influence the Constitutional Framers? In

addition to pointing out the need for a central government with powers over coinage of

money, taxation and commerce, Madison noted that since "the states neglect their militia

now, the discipline of the militia is evidently a National concern, and ought to be

provided for in the National constitution." 51 With obvious reference to Shays' Rebellion,

Madison also warned that "without such a power to suppress insurrections, our liberties

might be destroyed by domestic faction." 52

Undoubtedly with an eye on current events, the Framers provided for two types

of military force. First, they provided for raising and supporting armies, but in response to

widespread fears of a standing army, they provided further that "no appropriation of money

to that use shall be for a longer term than two years." 53 Second, they provided "for calling

forth the militia to suppress insurrections and repel invasions;" and "for organizing, arming,

and disciplining the militia," governing the militia in the service of the national government,

but allowing the States to appoint the officers and train the militia "according to the

discipline prescribed by Congress." 54 In addition, the "guarantee clause" provided protection

against invasion or domestic violence. 55 Clearly, suppressing insurrection was an important

consideration for the Framers.

One of the strongest anti-Federalist arguments against adopting the proposed

Constitution was Patrick Henry's suggestion that the federal power to arm the militias, if

left unexercised, could be used to destroy them. 56 No one pretended that state militias were

well-oiled fighting machines, capable of repelling invasions or even insurrectionists. In the

Revolutionary War, for example, after Lexington, Concord and Bunker Hill (which were, in

fact, militia victories), the colonial militias did not perform well at all, and Washington had

to beg the Continental Congress for money to raise an army. Professor Bogus makes a

convincing argument that the colonial and post-revolutionary militias existed primarily,

and served "most effectively," not to provide local defense, but to deter slave rebellions. 57

If an abolitionist congress someday decided to disarm the state militias, the white

slave-holders in the southern states would be faced, not with an insurrection of

yeomen-debtors, but with an insurrection of angry slaves.

During the Virginia ratification debates, Madison had responded to Patrick

Henry's concern that the federal government might disarm the state militias by arguing

that the states possessed a concurrent constitutional power to arm the militias. 58 Arguably,

Madison sought to codify this interpretation of the militia clause in the Second Amendment.

Madison's original proposal provided as follows:

The Senate (which kept no record of its debate 59) omitted Madison's religious scruples

clause, and in the version of the Amendment finally adopted, the first and second clauses

were reversed, "thereby tightening the connection between the militia and the right to keep

and bear arms."60 Professor Bogus suggests that "Madison's draft of the Second Amendment

made the power to arm the militia concurrent rather than the exclusive to the federal

government."61

With only minor changes, Madison incorporated article 10 of the English

Declaration of Rights of 1689 as the Eighth Amendment to the United States Constitution. 62

He certainly was aware of article 7, the Declaration's arms provision, as well. The parallels

were striking: in 1689, the Protestants feared being disarmed by the Catholic king; in

1787 the militias feared being disarmed by the federal government. The solution was the

same: let the power to disarm reside in the body most trusted not to use it, Parliament

for the Protestants, and the states for the militias.63

F. An unbroken tradition of firearms regulation

In the aftermath of Shays' Rebellion and similar insurrections in other states, the

Framers would have been aghast at the notion of a right to overthrow the government with

force of arms. It is one thing to take up arms against a government imposed against the will

of the people, as the colonists did during the Revolutionary War. It is quite another matter

to take up arms against a government elected by the people themselves, as the Shaysites

did in Massachusetts. Having won the war and survived the Confederation, the framers had

gone from revolutionaries to nation builders, and they had no intention of tolerating

insurrectionists. 64

History shows that regardless of whether the English, and later, the American

right to bear arms is deemed individual or collective, there is an unbroken tradition of

legislation to regulate firearms. Until the advent of Halbrook's insurrectionist school of

thought, this legislation received only sporadic constitutional challenges because it was

accepted— as it should be— as a reasonable exercise of the police power of

the state. 65 Just as the language of the Constitution cannot be interpreted safely except

by reference to the common law and to British institutions as they were when the instrument

was framed and adopted, Ex parte Grossman, 267 U.S. 87, 108 09 (1925), neither

can the Bill of Rights. When the framers came to put their conclusions into the form of

fundamental law in a compact draft, they expressed them in terms of the common law,

confident that they could be shortly and easily understood. Id., 267 U.S. at 109.

The Supreme Court has consistently said that early congressional enactments

provide contemporaneous and weighty evidence of the Constitution's meaning. See, e.g.,

Printz v. United States, 521 U.S. 898, 905 (1997), Marsh v. Chambers, 463

U.S. 783, 790 (1983), and Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888).

Thus in United States v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on other

grounds, 319 U.S. 463 (1943), the court held that the Federal Firearms

Act could be upheld "on a broader ground" than Miller because weapon

bearing was never treated as an absolute right under commonlaw. Id., 131 F.2d

at 266. Weapon bearing has been regulated by statute at least as long ago as the

Statute of Northampton, the court observed, and it was not an infringement "upon

the preservation of the well regulated militia" to limit possession of weapons "by

persons who have previously, by due process of law, been shown to be aggressors

against society." Id., 131 F.2d at 266 67. 66

As Professor Bellesiles has noted, every state had gun control legislation on

its books at the time the Second Amendment was approved, and every state continued

to pass such legislation after the second Amendment was adopted. More importantly,

the federal government also continued to regulate firearms. One year after the American

Bill of Rights was adopted, and scarcely one hundred years after the English Declaration

of Rights, Congress passed the Uniform Militia Act of 1792. 67 Much like article 7 of the

Declaration, which limited the possession of firearms to high-ranking Protestants "as

allowed" by Parliament, the Militia Act defined who could bear arms in the state militias

(and, by implication, who could not), limiting membership only to free, able-bodied, white

male citizens, between the age of 18 and 45 years.

In other words, and regardless of whether the Second Amendment recognizes

an individual or collective right, an unqualified, literal reading of the amendment has never

been accepted. See Konigsberg v. State Bar of California, 366 U.S. 36 (1961), where

the Court rejected a literal reading of the First Amendment that would preclude any limits

on the right of free speech, comparing it to the "equally unqualified command of the Second

Amendment." Id., 360 U.S. at 49 n.10. Professor Bellesiles concludes, and so

does your amicus, by noting that

Thus the issue has little, if anything, to do with whether the Second Amendment

embodies an individual right or a collective right to keep and bear arms. It is well accepted

that the Second Amendment confers no new right, but merely recognized a preexisting

right of the people, in the context of a well-regulated militia, to keep and bear arms. 69

Anglo-American legislative bodies had enjoyed the power, at least since 1689, to regulate

firearms, and if the Second Amendment granted no new right to the people, neither

did it impose any other limits on Congress' regulatory power.

Firearms regulation, as a proper exercise of the police power, has historically had a

place in the pantheon of Congress' power as a matter of public policy. In this case,

Congress perceived persons who have been placed under a domestic relations restraining

order consistent with the requirements of § 922(g)(8) to be a threat to social stability,

and it denied them the right to possess a firearm that has moved in interstate commerce.

Section 922(g)(8) represents a valid exercise of Congress' police powers. The district court's

order holding the statute unconstitutional under the Second Amendment was wrongfully

rendered.

Conclusion

Wherefore, premises considered, your amicus , Ralph H. Brock, respectfully

submits that this court should reverse the district court's order dismissing the prosecution,

hold that 18 U.S.C.§ 922(g)(8) is not unconstitutional under the Second Amendment, and

remand this case for trial on the merits.


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Notes.

1. Ralph H. Brock, A Lawyer's Look at the Boundaries of Texas— Origins, and the Red River Controversies," 50 Tex. B.J. 1098 (Nov. 1987); Ralph H. Brock,A Lawyer's Look at the Boundaries of Texas— The Eastern Boundaries, 50 Tex. B.J. 1218 (Dec. 1987); and Ralph H. Brock, A Lawyer's Look at the Boundaries of Texas— The Western Boundaries, 51 Tex. B.J. 136 (Feb. 1988). text@note1

2. Ralph H. Brock, "The Republic of Texas Is No More": An Answer to the Claim That Texas was Unconstitutionally Annexed to the United States," 28 Tex. Tech L. Rev. 679 (1997); and Ralph H. Brock, "The Republic of Texas is No More," The San Antonio Lawyer (3rd Q. 1997), at 3. text@note2

3. Your amicus offers this Brief strictly in his individual capacity, and not on behalf of the Women and the Law Section or the Women in the Profession Committee of the State Bar of Texas. Your amicus mentions his involvement with those entities only to demonstrate his interest in upholding the statute in question. text@note3

4. Ralph H. Brock, Gender Bias From A Male's Perspective, 55 Tex. B.J. 77 (Jan. 1992). text@note4

5. Although your amicus believes there is no merit for striking § 922(g)(8) under the Fifth Amendment, see United States v. Wilson, 159 F.3d 280 (7th Cir. 1998) and United States v. Bostic, 168 F.3d 718 (4th Cir. 1999), he will defer to the Government to address that issue. text@note5

6. See, e.g., Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943); United States v. Toner, 728 F.2d 115, 128 (2nd Cir. 1984); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995), cert. denied, 516 U.S. 813 (1995); United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir. 1971); United States v. Williams, 446 F.2d 486, 487 (5th Cir. 1971); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976), cert. denied, 426 U.S. 948 (1976); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983); Cody v. United States, 460 F.2d 34, 36 37 (8th Cir. 1972), 409 U.S. 1010 (1972); Hickman v. Block, 81 F.3d 98, 101 (9th Cir. 1996), cert. denied sub nom., Hickman v. County of Los Angeles, 519 U.S. 912 (1996); United States v. Oaks, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978); and United States v. Wright, 117 F.3d 1265, 1273 (11th Cir. 1997), cert. denied, 522 U.S. 1007 (1997). text@note6

7. Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. Rev. 57, 143 (1995). text@note7

8. William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236, 1239 and n.10 (1994). text@note8

9. Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 654 55 (1989). In a later article, Levinson quotes himself, adding that the "refusal" is also "shameful." Sanford Levinson, Is the Second Amendment Finally Becoming Recognized as Part of the Constitution" Voices from the Court, 1998 BYU L.Rev. 127, 127 28 and n.7 (1998). text@note9

10. See, e.g., the "cert. denied" circuit court cases, supra note 6. Technically, the denial of certiorari imports no expression of opinion upon the merits of the case, United States v. Carver, 260 U.S. 482, 490 (1923), but so many denials, especially when the scholarly literature now contains so many articles advocating the so-called Standard Model, cannot be dismissed as insignificant. text@note10

11. Glen H. Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 466 (1995). text@note11

12. Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607 1794, 16 Law & Hist. Rev. 567, 568 (1998). text@note12

13. Id., at 569. text@note13

14. Jack Rakove, On Original Intent, Stanford Rep. (Online) (August 25, 1999)
http://www.stanford.edu/dept/news/report/opinion/essays/rakove.html. text@note14

15. Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309, 357 (1998) (hereinafter, Hidden History). text@note15

16. Bogus, Hidden History, supra note 15, at 383 (quoting the provision). text@note16

17. Id., at 377 (quoting Joyce Lee Malcolm,To Keep and Bear Arms: The Origins of an Anglo-Saxon Right 115 (1994): "While the right of subjects to have arms has been singled out as one of the 'true, ancient, and indubitable' rights to be included in the Declaration of Rights, it was neither true, ancient, nor indubitable. The Convention members themselves [the members of a de facto Parliament meeting under a different name] were its authors.") (emphasis added). text@note17

18. Id, at 384 85. text@note18

19. Bellesiles, supra note 12, at 571. text@note19

20. Id., at 572. text@note20

21. Id., at 571. text@note21

22. Id. text@note22

23. Id., at 573 74; Bogus, Hidden History, supra note 15, at 377. text@note23

24. Bellesiles, supra note 12, at 573 74. text@note24

25. Lucilius A. Emery, Note, The Constitutional Right to Keep and Bear Arms, 28 Harv. L.Rev. 473, 474 (1915). text@note25

26. Bellesiles, supra note 12, at 580. text@note26

27. Id., at 585. text@note27

28. Id., at 587 88. text@note28

29. Id., at 588. text@note29

30. Bogus, Hidden History, supra note 15, at 318 19, quoting Dennis A. Henigan, Arms, Anarchy and the Second Amendment,27 Val. U. L. Rev. 107, 110 (1991). Compare the Brief of the Second Amendment Foundation as Amicus Curiae in United States v. Warin, where the SAF argued that "an armed populace can, as Madison affirmed, rescue their [sic] rights from the hands of the oppressors," id., at 15, and that the right to bear arms "exists as a deterrent upon oppressive government ." Id., at 26. The Potowmack Institute, Brief of the Second Amendment Foundation as Amicus Curiae (visited August 17, 1999) [Potowmack Institute Appendix E to amicus in Emerson] text@note30

31. Stephen P. Halbrook, Ph.D. Attorney at Law (visited August 10, 1999) http://members.aol.com/protell/sph.html. Halbrook appears in this case on an amicus brief in support of the Standard Model, and he recently appeared in this Court for the defendants/appellants in United States v. Castillo, 179 F.3d 321 (1999). Much of his writing has been underwritten by grants from the Firearms Civil Rights Legal Defense Fund, an arm of the National Rifle Association. See Bogus, Hidden History, supra note 15, at 318 and n. 37. text@note31

32. Bogus, Hidden History, supra n15, at 393 94 (quoting Madison to Jefferson (Mar. 19, 1787), in The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison, 1776 1826, at 469, 473 (James Morton Smith ed., 1995). text@note32

33. The Federalist No. 46 (James Madison) (Edward Mead Earle ed., 1976), at 310 11 (emphasis added). text@note33

34. Id., at 305. text@note34

35. Id., at 310. text@note35

36. Id.. text@note36

37. Id., at 310 11. text@note37

38. David P. Szatmary, Shays' Rebellion: The Making of an Agrarian Insurrection 19 20 (1980). text@note38

39. Id., at 58 59. text@note39

40. Id., 79 81. See also The Federalist No. 25 (Alexander Hamilton), supra note 33, at 157 ("That State [Massachusetts] (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corp in pay to prevent a revival of the spirit of the revolt."). text@note40

41. Id., at 99 100. text@note41

42. Id., at 103 04. text@note42

43. Szatmary, supra note 38, at 104 05. text@note43

44. Id., 109 14. text@note44

45. Id., at 124 26. text@note45

46. Rock Brynner, Cromwell's Shadow over the Confederation: The Dread of Cyclical History in Revolutionary America, 106 Mass. Hist. Soc. Proc. 35, 42 47 (1995). text@note46

47. Szatmary, supra note 38, at 126; Richard B. Morris, The Forging of the Union, 1781 1789 265 (1987). text@note47

48. See, e.g. The Federalist No. 21 (Alexander Hamilton),supra note 33, at 126 27 ("The tempestuous situation from which Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can determine which might have been the issue of her late convulsions, if the malcontents had been headed by a C‘sar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?"). text@note48

49. Szatmary, supra note 38, at 122, 128. Only pro-agrarian Rhode Island declined to send delegates. text@note49

50. Id., at 127; Brynner, supra note 46, at 47 48. text@note50

51. Szatmary, supra note 38, at 129; Morris, supra note 47, at 265. text@note51

52. Szatmary, supra note 38, at 129. text@note52

53. Const., art. I, § 8, cl. 12. text@note53

54. Const., art. I, § 8, cl. 15 16. text@note54

55. Const., art. IV, § 4. text@note55

56. See Bogus, Hidden History, supra note 15, at 345ff. text@note56

57. Carl T. Bogus, Race, Riots, and Guns, 66 S.Cal. L.Rev. 1365, 1370 72 (1993). text@note57

58. Bogus, Hidden History, supra note 15, at 351. text@note58

59. Id., at 372. text@note59

60. Id., at 370. text@note60

61. Id., at 369. text@note61

62. Id., at 386. text@note62

63. See Id., at 386. text@note63

64. Id., 394 95 (quoting Washington, Hamilton, Franklin, Marshall, Jay, Samuel Adams, Rufus King, Hancock, and anti-Federalist Elbridge Gerry, all of whom expressed shock and dismay over the Rebellion). text@note64

65. More recently, Halbrook and others have been salting scholarly journals with articles advocating the insurrectionalist analysis. Herz, supra note 7, at 137 38. Oddly enough, they have been joined by such otherwise liberal constitutional scholars as Sanford Levinson and Lawrence Tribe.

It is beyond the scope of this brief to address all of the fallacious arguments mustered in support of the individual rights school of thought, much less that of the insurrectionalists. Others, though, most notably Herz, supra at 137 45, Bogus, Hidden History, supra note 15, at 376 79, 385 86, 387 404, and Gary Wills, To Keep and Bear Arms, N.Y. Rev. Books 62ff (September 21, 1995), have thoroughly debunked the individualists' arguments. text@note65

66. Cf. Quilici v. Village of Morton Grove, 532 F.Supp. 1169 (N.D. Ill. 1981), aff'd, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983), wherein the district court expressly recognized an individual right to keep and bear arms while still upholding the firearms regulation in question:

text@note66

67. Act of May 8, 1972, 1 Stat. 271. See also, e.g., Act of May 2, 1792, 1 Stat. 264 (authorizing the president to call for the militia of any state to suppress insurrection; Act of April 2, 1794, 1 Stat. 352 (providing for the erection and repairing of federal arsenals and magazines); Act of May 22, 1794, 1 Stat. 369 (providing for a uniform militia throughout the United States); and Bellesiles, supra note 12, at 587. text@note67

68. Bellesiles, supra note 12, at 589. text@note68

69. Cf. United States v. Cruikshank, 92 U.S. 542, 553 (1876) ("This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence."), and George I. Haight, The Right to Keep and Bear Arms, 2 Bill of Rights Review 31, 31 (1941). text@note69


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