It's not about guns...

It's about citizenship

The Potowmack Institute

This file available as filed with the court in PDF format without comments at:

This brief draws heavily on Stephen Halbrook's "Congress Interpret," Tenn. Law Review, Spring, 1995. There is no secret about what the NRA and Stephen Halbrook want. They want to maintain a balance of power between a privately armed populace and any and all government. This is the essence of the armed populace fantasy. Other expositions on this strategy are in Halbrook's petitition for Sheriff Printz in Printz and Mack and in the Halbrook's petitition to the US Court of Appeals, DC Circuit, in NRA v. Reno (July, 2000).

The armed populace fantasy denies the legitimacy of public authority and the viability of political community. The Constitution is reduced from a frame of government with "just powers" (public authority) derived from the consent of the governed to a treaty among sovereign individuals who give no more than word of honor and promise of good faith. See Potowmack Institute amicus in Emerson. Registration means accountability to public authority. The NRA has lobbied Congress since the 1930s to have its minions write into law that there is no intent to register guns. It then goes to court to argue that the courts have to respect the will of Congress which is presumably the will of the people when it is only the will of NRA lobbyists.

The problem with the armed populace fantasy is that it has no roots in the consciousness and practices of the militia and the early republic. It is a strictly mid and late twentieth century invention. The Militia Act of 1792, enacted by the same people who ratified the Second Amendment, required the states to "enroll"--that is, register--militiamen for militia duty. It also required the state militia officers to maintain inventories, called "Return of Militia," of militia resources, including privately owned weapons and report these to the state governor and the president of the United States. The militia returns included rifles, muskets, side arms, pistols, powders of powder, flints, etc. What is remarkable about the armed populace fantasy is that there is no public enlightenment or opposition political leadership that exposes the fraud and the strategy and defines the issue in any other terms.

The Citizens Committee for the Right to Keep and Bear Arms
as amicus curiae
US v. Timothy Joe Emerson
US Court of Appeals, Fifth Circuit
Filed December 21, 1999


The Citizens Committee for the Right to Keep and Bear Arms is a national

grassroots organization dedicated to preserving the individual right to keep and

bear arms as enumerated and codified under the Second Amendment and numerous

State Constitutional protections. The Citizens Committee works to educate

lawmakers on the federal, state and local levels on the importance of protecting

individual gun ownership and our Constitutional heritage and maintains a

Washington, D.C. office for contacting all members of Congress. Fifty-eight

current Members of Congress sit on the Citizens Committee National Advisory

Board. The Citizens Committee represents over 650,000 members and supporters

nationwide with members in every state of the union.

Counsel for both parties have consented to amicus's submission of this brief.


A. Argument Summary

Section 18 U.S.C. § 922(g)(8) is unconstitutional under the Second and Fifth

Amendments. First, there is no due process under the rarely used law or "notice" of

the substantial penalties awaiting an unsuspecting person. Second, this court

should affirm the District Court's decision which has already been followed by

United States v. Ficke, 58 F. Supp. 2d 1071, 1073 (D. Neb. 1999) which found 18

USC sec. 922(g)(9) unconstitutional. Third, there is no requirement of a judicial

finding, creating an overly-broad statute that casts a wide net far beyond Dr.

Emerson. Fourth, the law could actually decrease public safety as victims are

disarmed as part of unstandardized court orders, particularly "mutual restraining

orders". Fifth, Congress has repeatedly held that the Second Amendment is an

individual right through their laws and it is time for this Court to uphold the

individual right to keep and bear arms.

B. Factual Background

Unlike the previous classes of people prohibited from firearm ownership

(people convicted of certain crimes, dishonorably discharged from the military,

drug/alcohol addicts, and the adjudicated mentally incompetent) 922(g)(8) includes

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prohibitions where no crime has been committed, no mental competency finding or

threat assessment is required. The reason for being in court is the process of

dissolution of marriage. Here, Dr. Emerson was charged under an "obscure, highly

technical statute." 1 While this statute is rarely used, Constitutional questions

abound in the few cases so far. This brief illustrates why 922(g)(8) is unconstitutional on both Fifth and Second Amendment grounds.


A. Emerson - 18 U.S.C. § 922(g)(8)

Section 922(g)(8) violates due process under the Fifth Amendment. The

government argues that Dr. Emerson received "notice” that he could not possess

firearms if a restraining order was issued against him. The problems with this

reasoning are multi-faceted.

1. Dr. Emerson legally purchased the Beretta pistol in 1997 and filled out the

Form 4473 correctly by truthfully answering "no" to the question relating to

restraining orders.

2. The Form 4473 includes many technical provisions posing problems for

memorization of each provision. While the government insists that Dr. Emerson be

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responsible for every little detail on the four-page, small type document, it is

unreasonable to ask someone to recall every detail over a year later of even a

simpler form, such a rental car agreement. Moreover, unlike with a car rental

agreement, Dr. Emerson was not given his own copy of the Form 4473 to review at

a later time.

3. Even if Dr. Emerson read Form 4473 thoroughly, and memorized every

detail, the form NEVER informed him that he must get rid of his existing firearms.

The relevant portions read:

Dr. Emerson was never informed by either Form 4473 or by the court that he

must remove his previously and legally owned firearms, if and when he ever

became subject to a restraining order. Nor was warning given of the strict criminal

law liability or the substantial federal felony penalties. It is a gross distortion of

our justice system to claim that Dr. Emerson, or any other person, could have had

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"fair notice" of this law and its consequences based on Form 4473. Therefore,

922(g)(8) is an unconstitutional violation of the Fifth Amendment.

B. Fricke - 18 U.S.C. § 922(g)(9)

In United States v. Ficke, the defendant was charged with violating

subsection 18 U.S.C. sec. 922(g)(9) which makes jt unlawful for any person

"convicted in any court of a misdemeanor crime of domestic violence" to possess a

firearm which had been shipped or transported in interstate commerce. 2 Fricke

argued that sec. 922(g)(9) violated the notice and fair warning requirements of the

due process clause of the United States constitution.

In April 1994, Fricke entered a pro se plea of no contest to a charge of

misdemeanor assault in connection with an incident of domestic violence and was

sentenced of six months probation and ordered to complete anger control classes.

Over four years later, in September 1998, he was arrested at his home after his wife

reported an alleged domestic assault. 3 At the home, the officers found and

confiscated various rifles even though neither the defendant's wife nor the arresting

officers indicated that the defendant used the guns to threaten his wife during the

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alleged assault. 4 Fricke was indicted and pleaded guilty. However, the court

allowed Fricke to file a motion to dismiss before sentencing in light of the

Emerson ruling. 5

Fricke argued that it is fundamentally unfair to punish him for violating

922(g)(9) when: 1) his conduct in possessing the firearms was "wholly passive,"

and 2) he did not know that federal law proscribed his possession of firearms. 6 In

granting that motion, the court found that 922(g)(9) created an impermissible strict

liability crime that violates fundamental due process principles of notice and fair

warning. The court concluded:

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The same rationale should compel this court to find that 922(g)(8)

unconstitutionally imposes strict criminal liability when the defendant "simply did

not know and did not receive fair warning that his conduct had become unlawful." 8

The CCRKBA makes bold, unsupported assertions here. To "bear arms" has a military meaning. The Second Amendment was about military organization. See Potowmack Institute amicus. Also, Houston v. Moore.

The burden of proof in civil proceedings is much lower than in criminal

cases, yet the consequences under 922(g)(8) can be severe. This law does not even

require a judicial finding of fact to deny any individual's right to keep and bear

arms. There are no standards for termination of the right to keep and bear arms

guaranteed under the Second Amendment, and of the means to exercise the right of

self-defense as recognized in all courts and guaranteed under the Ninth

Amendment. These factless, baseless grounds of deprivation contrasts sharply with

other prohibited categories, such as felons, certain misdemeanants, and the

dishonorably discharged.

A. No Judicial Finding Required for Loss of Right to Keep and Bear Arms

The Government suggests that Dr. Emerson posed a "credible threat" to his

wife's boyfriend, his wife, and his daughter. While this evidence might be relevant

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if the statute in question required any type of judicial finding of a threat, the fact is

that the law was ruled unconstitutional because the law does not require any such

evidence or finding. By trying to justify the law with allegations that Dr. Emerson

is a credible threat, the government proves Judge Cumming's assertion on that it is

not difficult, or unreasonable, to require evidence of a threat, and that 922(g)(8) is

unconstitutional for failing to limit its scope to credible threats.

Assuming, for a moment, all the Government's allegations against Dr.

Emerson are true, then he would fit into any properly narrowed statute barring

firearm possession from people subject to a restraining order with a finding that the

individual posed a "credible threat." Judge Cummings held that such a revised

statute "would not be so offensive."

The only other reason for government's inclusion of such statements about

Dr. Emerson is to influence this Court against Dr. Emerson. The vast majority of

constitutional case law has been built upon individuals with less than ideal

personal histories, as the Prosecution has found these persons' rights easier to

violate. Dr. Emerson is entitled to the same respect for his constitutional rights as

was accorded to Mr. Miranda, Mr. Escobar, Mr. Lopez, and other imperfect

individuals whose rights were violated. While an examination of Dr. Emerson's

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character is an interesting aside, it is irrelevant when considering the

constitutionality of the statute. The real issue is the scope of the act.

B. Potentially Affects Millions Of Citizens Per Year

Section 922(g)(8) was ruled overbroad, and a violation of the Second

Amendment, based on the immense number of people entrapped into criminal

activity— not because of Dr. Emerson's particular circumstances. From 1975-

1997, the U.S. averaged more than 1 million divorces each year. 9 In 1997 alone,

there were over 870,597 divorces, providing over 1,741,194 opportunities for

either party to request a restraining order that would automatically bar all firearms

from the person(s) subject to such orders. Divorce can include emotional rhetoric

and retaliatory actions. Examples include depletion of jointly held bank accounts,

incursion of substantial credit card debt, and unfounded allegations of domestic

abuse and even child abuse. Allowing an automatic ban on firearms possession

without any judicial Finding of a Fact is a violation of an individual's Second

Amendment rights.

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C. Decreasing Public Safety by Disarming Victims
If organizations like the CCRKBA would give up their real agenda which is to maintain a balance of power between privately armed individuals and any and all government, they could lobby for a legal environment that makes sense and protects rights of individual self-defense. The right to self-defense the CCRKBA seeks is self-defense in the State of Nature which is the state of anarcy. See Potowmack Institute amicus

The number of people prohibited from owning guns by civil court orders is

likely to escalate as some states, such as Texas, consider "mutual restraining

orders." In cases of actual domestic violence, mutual restraining orders

automatically bar gun possession from both the perpetrator and the victim under

922(g)(8). Disarming victims is a tragic and unforeseen side effect of 922(g)(8)

because of its unconstitutionally broad provisions. In answer to the often-repeated

comment about saving women's lives through gun control, the following two brief

examples illustrate the danger of 922(g)(8).

Barbara Thompson had a restraining order on an ex-boyfriend named Leotis

Martin, who had previously assaulted and broke her arm and was under a court

order to stay away from both her and her property after a break-in. Martin broke in

again and was killed by his intended victim. Richmond County Sheriff Dale Furr

described the events:

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While a court order did not disarm the attacker in this case, it would have

likely disarmed the intended victim if mutual orders were granted without any

judicial finding of fact. Such events prove disastrous for women. For example,

Polly Przybyl was disarmed by the Cheektowaga, New York police after Lee, her

estranged husband of 17-years, tracked her to her mother's home and attempted to

gain entrance. The police took the Ms. Przybyl's firearms even though she had

called the police; and she had both a pistol permit and a Federal Firearms License.

She told the police that her husband had guns without the necessary permits and

that she knew she was in danger. Two days later, she obtained a restraining order,

but the police failed to collect his firearms. On August 22nd, 1994, Lee returned,

walked to the back of the house with Polly, where he stabbed her with a knife and

killed her. Lee then retrieved a rifle and shot Polly's mother. Lee finally shot

himself eleven hours later while police were negotiating his surrender." 11 In the

article, Polly's sister, Mindy stated:

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The policy of disarming the victim led to the murders of Polly and her mother.

Disarming victims not only violates their right to keep and bear arms under

the Second Amendment, but by extension, their means to self-protection as

recognized by every court and guaranteed by the Ninth Amendment. So paramount

is the right of self-defense/self preservation, that convicted felons may raise it at

trail for unlawful possession of a firearm. 12

In Gomez, the Second Amendment is discussed by all three Judges. Judge

Kozinski in Footnote Seven stated:

While separately concurring in the ruling, Judge Hall stated "he would not

join" Footnote Seven. 14 Judge Hawkins stated that it, "alludes to an interesting

and difficult question I would leave for another day." 15

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While Mrs. Przybyl's particular tragedy was caused by a strict and in this

case one-sided policy of removing firearms from domestic violence situations,

including from victims, and not through a restraining order under 922(g)(8), it

illustrates the dangers of eliminating the individual right to keep and bear arms

without requiring judicial findings of fact.

The automatic prohibition of all gun ownership through a civil court

marriage dissolution proceeding is not comparable to a person convicted of a

crime, dishonorably discharged, or declared mentally incompetent. A person

subject to the order need not even be accused of any crime, only subject to a

restraining order without any Finding of Fact.

Like Emerson and Fricke, most people are not likely to object to a

restraining order with a potential ex-spouse when no information is provided

regarding the elimination of Constitutional rights and felony penalties upon the

order's issuance. As written, 922(g)(8) entraps people into becoming federal felons

upon leaving the court house. Constitutional rights should not be vacated so easily

and without any knowledge provided.

IV. Congress Interprets the Second Amendment
There is no indication from the historical record from the mid-19th century or the 1930s that the Congress or the states had any understanding of what the right to keep and bear arms meant consistent with the original meaning and intend of the Second Amendment which was about military organization. The confusion has to be cleared up now through rational informed public debate that involves public office holders and the news media. Of this debate there is none. It is very clear, however, that recent enactments of Congress listed below have been much influenced by lobbying from organizations like the CCRKBA which claims 58 members of Congress on its Advisory Board. The provisions indicated here have been written into laws dating from the 1960s exactly so they can be asserted in court. It is a sophisticated strategy which has no opposition.

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This court should interpret 922(g)(8) in a manner that protects the individual

right to keep and bear arms because Congress has consistently endorsed such an

interpretation of the Second Amendment, as well as, repeatedly supported

individual firearm ownership in general. These endorsements include: the

Freedmen's Bureau Act of 1866, approval of the Fourteenth Amendment, the

National Firearms Act of 1934, the Federal Firearms Act of 1938, the 1941 Private

Property Acquisition Act, the 1968 Gun Control Act, the Consumer Product Safety

Act of 1976, the current Militia Law, The Report of the Subcommittee on the

Constitution in 1982, the Firearms Owner Protection Act of 1986, and the Brady

Law of 1993. 16

A. The Freedmen's Bureau Act of 1866 and the Fourteenth Amendment

After the Civil War, slavery was ended and Southern States enacted slave

codes, which made it illegal for freemen to exercise basic civil rights; including the

right to purchase, own and carry firearms. 17 Congress responded to this challenge
twice through the passage of the Freedmen's Bureau Act and the Fourteenth


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The Freedmen's Act read in part:

Congress enacted this law through a veto override of more than two-thirds.

This same two-thirds also adopted the Fourteenth Amendment, which states:

Senator Jacob Howard, when introducing the Fourteenth amendment,

explained that its purpose was to protect "personal rights," including "the right to

keep and bear arms," from infringement by the States. 20 years after the

ratification of the Second Amendment, more than two-thirds of the Congress

believed with certainty that the Second Amendment enumerated an individual

right; enough to include it in both an Act and an Amendment designed to protect

the civil rights of the newly freed individuals formerly held as slaves.

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B. The National Firearms Act of 1934

Almost seventy years later, Congress began to consider what became known

as the National Firearms Act (NFA). 21 The NFA, through a system of taxation and

registration, severely restricted machineguns, short-barreled shotguns and rifles. 22

Before passage of the NFA, there was detailed discussion between the

Attorney General and lawmakers as to how to pass the law without violating the

Second Amendment. These discussions are crucial in understanding that

lawmakers considered the Second Amendment an individual right. During one

crucial hearing discussion, Congressman David J. Lewis inquired about reconciling

the bill with the Second Amendment's individual right to keep and bear arms:

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Throughout the debates, it is clear that there was a careful respect for the

Second Amendment and concern about having the NFA written to include any

unconstitutional infringement upon the individual right to keep and bear arms.

B. The Federal Firearms Act of 1938

In 1938, Congress again undertook to regulate firearms by passing the

Federal Firearms Act ("FFA"), which regulated interstate commerce in firearms

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and prohibited possession of firearms by felons where an interstate nexus could be

demonstrated. 24 The FFA again raised concerns over the infringement of rights

guaranteed by the Second Amendment as well as highlighted by Congressional

support for individual gun ownership. In the early discussions on Second

Amendment limitations, Senator William King stated to Senator Copeland, the

chief sponsor, that "we have a constitutional provision that right of the people to

keep and bear arms shall not be infringed ... [and he] was wondering if this bill was

not in contravention of the constitutional provision."

Denying that the FFA infringed upon the Second Amendment, Copeland argued that

Senator McKellar responded,

Since the FFA related to regulation of Interstate Commerce, not individual

gun ownership, little more mention to the individual right to keep and bear arms

under Second Amendment protection was discussed. In support of individual gun

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ownership, the Senate Committee explained that the FFA was designed to impact

criminals, not law-abiding citizens:

D. The Property Requisition Act of 1941 (PRA)

Congress asserted the Second Amendment as an individual right by

exempting privately-owned firearms from the Property Requisition Act of 1941.

Less than two months before Pearl Harbor, Congress passed legislation authorizing

Presidential requisition of many properties with military uses from the private sector

upon payment of fair compensation. 27

Protections for Second Amendment rights were included in the PRA:

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Originally, the bill did not include language protecting the individual right to keep and bear arms, but the House Military Affairs Committee added these

provisions, noting:

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This provision was essential for the preservation of the individual right to

keep and bear arms because if private guns were registered, they could be

confiscated by the government. Compare the retention of private guns with the

plight of the organized portion of the militia. The War Department began taking

back all the rifles it had previous issued to them. 30 If, as the Government contends,

the entire Militia is only the "select" Militia (the National Guard), then the Second

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Amendment is the first guarantee of the Bill of Rights to cease to exist. Under the

PRA, the organized portion of the militia was disarmed and could be again.

E. The Current Militia Law of 1956

Congress defines the Militia under current law under Title 10, Chapter 13 of

the US Code.

Dr. Emerson is between the ages of 17 through 45 and is therefore part of

the Militia as defined under current law and as defined by Congress. This

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definition is also supported by the Supreme Court in United States v. Miller, 307

U.S. 174 (1939), which reads:

Applying this very narrow definition under Section 311(a) (which may be

gender biased and discriminatory by today's standards), Dr. Emerson qualifies as

part of the Militia. Although he is currently not called into active service,

according to Miller can "keep" his Beretta 92 pistol, which happens to be

identical to the one issued in the Armed Forces, until called to bear arms to provide

for the common defense.

Congress and the Supreme Court in Miller concur on the definition of the

Militia. The Court never questioned whether Mr. Miller was part of the Militia, a

very troubling fact for the "collective" rights theorists. If Miller was not part of the

militia to begin with, then there would be no need to examine whether the firearm

was a militia-type. It would have been a simple "no standing" case, as decided in

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Hickman v. Block, 81 F.3d 98, 96 (9th Cir., 1996). No one from the "collective

rights" theory has ever explained the necessity of defining the class of protected

firearms under Miller, if Mr. Miller was not considered part of the Militia.

Congress, along with the Miller Court, upheld the beliefs of the Framers of

our Constitution, who were avid supporters of individual gun ownership and its

protection under the Second Amendment. Many of them also detailed the value of

individual firearm ownership toward "the preservation or efficiency of a well

regulated militia" as required under the Miller court and detailed under the current

Militia Law. These same Framers feared the destruction of the "general militia" as

defined by Congress and Miller and opposed the "select militia" as the Government

brief supports. 32 Some of the Framers' statements are supplied here:

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See full context in Potowmack Institute amicus Appendix I

Page 24

See Potowmack Institute amicus and Potowmack Institute amicus Appendix I for other of Adams' thoughts on government and the militia.

The intention of the Founders of this country was to have an armed populace

capable of defending themselves from all forms of tyranny. Their words still ring

true in both the current Militia law and the Miller decision. Additional history of

Congress's Militia Acts is detailed in Perpich v. Dept. of Defense, 34 which holds

that the militia under the 1903 Dick Act is:

Page 25

The CCRKBA does not explain if the "unorganized militia" is composed of citizens of the United States, under law and government, or individual sovereigns, laws unto themselves, in the State of Nature which is the state of anarchy. No member of Congress has explained this vital point either.

Congress, Miller, the Founders and Perpich all hold that the militia is more

than the State or National guard. This court should follow this long-standing


The NRA's amicus in Perpich argued for the "armed populace at large" as the militia. The NRA was on the right side of the ruling but the Supreme Court ignored the point.

F. Consumer Product Safety Act of 1976

When Congress authorized broad, sweeping powers to the Consumer

Product Safety Commission, there was a concern that over-regulation would

impact the individual gun ownership. An exemption from the law was created for

the manufacture or sale of firearms or firearms ammunition. Pub. L. 94-284, Sec.

3(e), May 11, 1976, 90 Stat. 504, provided that:

It is clear that this amendment was adopted specifically to protect the

individual gun owner from intrusive and overbearing government bureaucracy and

the restrictions that could occur. Although the Consumer Product Safety Act does

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not specifically invoke the Second Amendment, the CPSA does reflect Congress's

strong desire to protect individual gun ownership. This Court should not read

section 922(g)(8) in a manner that would conflict with that Congressional desire.

G. Subcommittee on the Constitution, 1982
The CCRKBA does not point out that the Subcommittee's report was written by NRA lawyer and right-to-insurrection theorist Stephen Halbrook and gun rights activist David Hardy. The report was a payback to the NRA for its support for Republicans in gaining control of the Senate in the 1980 election. The Judiciary Committee staff director, Mary Jolly, who assembled the documents left the Judiciary Committee immediately to take employment as an NRA lobbyist. The report is often trundled out, as here, as an authoritative, impartial, bipartisan study as if Orrin Hatch and Strom Thurmond ever did anything impartial in their careers and as if congressional committees decide the contours of constitutional rights. Halbrook cites the report at some length in the NRA brief in Perpich without any mention that he was citing himself. This is how the armed populace fantasy is fabricated and put over.

Congress clarified the meaning of the Second Amendment in the February

1982 Report of the Subcommittee on the Constitution of the Committee on the

Judiciary in the 97th Congress, titled, "The Right to Keep and Bear Arms." This is

a summary of the meaning of the Second Amendment. (Many additional individual

rights scholarly materials have been found since the report was issued.) It was a

unanimous, bipartisan and strongly-worded Report supporting the individual

right to keep and bear arms.

In his opening remarks, Senator Orrin Hatch wrote:

Page 27

Sen. Dennis Deconcini echoed respect for the Second Amendment, quoting

Thomas Jefferson and Samuel Adams and noted:

The report then went on to quote from the Founders of our country, Legal

Commentators of the time, and various court cases. The concluding paragraphs

destroy the notion that the "Militia" is the National Guard of today and reaffirm the

Second Amendment as an individual right:

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Was Halbrook trying to sneak in an equivalence between to "carry" and to "bear" arms? See in Potowmack Institute amicus?

H. The Firearms Owners' Protection Act of 1986

Congress again supported the individual right to keep and bear arms in

passing the Firearms Owners' Protection Act of 1986 (FOPA), by finding that:

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Section 926(a) of the FOPA enforces the Second Amendment protection

through prevention of registration of most firearms by providing:

The FOPA continued the no-registration policy of the Property Requisition

Act. This protection even carried over to appropriation budgets of the Bureau of

Alcohol, Tobacco and Firearms (BATF). Congress has included the following

provision in every from BATF appropriation act since 1978:

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I. The Brady Handgun Control Law

The Congressional prohibition on firearm/firearm-owner registration is

reaffirmed again in the Brady Law. Section 103 dealing with the National Instant

Criminal Background check system reads in part:

This portion of Brady continues the policy from the Property Requisition

Act and FOPA, both of which specifically protected the individual right to keep

and bear arms under the Second Amendment.

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J. Congressional History as a Whole

The continuous effort of Congress to avoid infringing on the individual right

to keep and bear arms goes virtually unnoticed in lower court cases presuming that

the Second Amendment is simply a "collective” right. It is time for the Judicial

Branch to consider the long-standing opinion of the Legislative Branch in ruling on

the intent behind the Second Amendment. It was first drafted, debated and ratified

by Congress and has been defended rigorously as an individual right throughout

our nation's history.

The Framers of the Constitution had the good judgment to create three co-equal branches of government to protect us from the excesses and irresponsibilities of legislatures. The judiciary is not beholden to legislatures preyed upon by special interest lobbyists.

Particularly with an ambiguous statute, such as 922(g)(8), courts must

consider the interpretation preferred by Congress as the crafters of the legislation.

Because Congress has repeatedly acted to protect individual firearms ownership in

general, and the Second Amendment in particular, the statutory interpretation that

best effectuates these often-expressed preferences should be upheld.

This court should interpret the statute at bar to require a finding of dangerous

not only because such a reading is consistent with the Second Amendment, but

because it matches the expressions of Congressional intent regarding the Second

Amendment and individual gun ownership in general. If such a reading is not

possible, then the statute must be struck down as an unconstitutional violation of

the Second Amendment.

Page 32


Section 18 U.S.C. § 922(g)(8), if not given a saving construction by this

Court, is--like section (g)(9)— a clear violation of both the Fifth and Second

Amendments. The Judgment of the District Court should be affirmed.

Dated: 12/21/99
Shawn Newman
Attorney at Law
Citizens Committee for the Right to Keep and Bear Arms
1090 Vermont Avenue N.W., Suite 800
Washington, DC 20005

1. See, United States v. Emerson, 46 F.Supp.2d 598, 613 (N.D. Tex. 1999). text@note1

2. United States v. Ficke, 58 F. Supp. 2d 1071 (D. Neb. 1999). text@note2

3. Id.,at 1072. text@note3

4. Id.,at 1072. text@note4

5. Id.,at 1072. text@note5

6. Id., at 1074. text@note6

7. Id.,at 1075. text@note7

8. Id., at 1075. text@note8

9. Statistical Abstract for the United States 1998 and the Monthly Vital Statistics Report, Vol. 46, No. 12, U.S. National Center for Health Statistics, (1999). text@note9

10. Woman Kills Abuser Breaking Into Home, The Pilot Newspaper of South Pines, North Carolina, Vol. 79, No. 14(12/17/1998). text@note10

11. Husband Murders Wife Disarmed by Police, Women & Guns (November), p 10, 1994). text@note11

12. See, e.g., United States v. Panter, 688 F.2d 268 (5th Cir., 1982); United States v. Gomez, 92 F.3d 770 (9th Cir., 1996). text@note12

13. Gomez, 92 F.3d at 774. text@note13

14. Gomez, 92 F.3d at 778. text@note14

15. Gomez, 92 F.3d at 779. text@note15

16. Many of these Congressional actions are given a thorough review by Stephen P. Halbrook, "Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms," 62 Tenn. L. Rev. 597 (1995). text@note16

17. "Norman Chachkin, History of Constitutional Litigation for Human Rights Issues— Especially Race Issues 5-7 (Practicing Law Institute, 1994). text@note17

18. 14 Stat. 176-77 (1866). text@note18

19. U.S. Const. amend. XIV, § 1. text@note19

20. Cong. Globe, 39th Cong., 1st Sess. 2764-65 (1866). text@note20

21. 48 Stat. 1236 (1934). text@note21

22. Id text@note22

23. National Firearms Act: Hearings on H.R. 9066, Before the House Committee on Ways and Means, 73d Cong., 2d Sess. 19 (1934) text@note23

24. Federal Firearms Act, Ch. 850, 52 stat. 1250 (1938). text@note24

25. 79Cong.Rec. 11973 (1935). text@note25

26. S. Rep. No. 82, 75th Cong., 1st Sess. 1-2 (1937). text@note26

27. Property Requisition Act, ch. 445, 55 Stat. 742 (1941). text@note27

28. Property Requisition Act, ch. 445, 55 Stat. 742 (1941) (emphasis added). text@note28

29. H.R. Rep. No. 1120, 77th Cong., 1st Sess. 2 (1941). text@note29

30. See, e.g., Marvin W. Schiegel, Virginia on Guard: Civilian Defense and the State Militia in the Second World War 129 (1949). text@note30

31. 307 U.S. 174, 818-819 (1939). text@note31

32 United States v. Miller, 307 U.S. 174, 818-819 (1939). text@note32

33. Reprinted in Jonathan Elliot, ed, Vol. 3, The Debates in the Several State Conventions, at 425426 (1941) text@note33

34. 496 U.S. 334 (1990) text@note34

35. Perpich, 496 U.S. at 341 text@note35

36. Report of the Senate Judiciary Committee Subcommittee on the Constitution, 97th Cong., 2d Sess., The Right to Keep and Bear Arms, Page viii. text@note36

37. Id., Page xi. See also pt.htm1 text@note37

38. H.R. Report No. 141, 73d Cong., 1st sess. at 2-5 (1933) text@note38

39. Supra. Note 36, Pages 11-12. text@note39

40. FOPA § 1(b), 100 Stat. 449 (1986) (codified at 18 U.S.C. § 921 et seq.). text@note40

41. E.g., 106 Stat. 1731 (1992). text@note41

42. 18 USC 922. text@note42

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