The Potowmack Institute

Appendix E
Potowmack Institute, amicus curiae
US v. Emerson, Fifth Circuit, Case No. 99-10331


1. The Second Amendment Foundation, amicus curiae, US v. Francis J. Warin

2. Second Amendment Foundation, Reply brief, Filed October 28, 1975

3. Reply Brief of Defendant-Appellant, October 1, 1975

The District Court Opinion's central argument for a personal or individual right has been argued in Federal Court before by the Second Amendment Foundation in US v. Francis J. Warin, (530 F.2d 104, Sixth Circuit, 1976). The Second Amendment Foundation's assertion in Warin was more explicitly insurrectionist— "a basic right of freemen to take of arms to defeat an oppressive government"— whereas the District Court's Emerson Opinion rules for a personal right that has the right to insurrection implicitly hidden in it. The armed populace fantasy is an invention of mid-twentieth century extreme individualist rightwing/libertarian ideologies. Its underlying premises do not enjoy credibility even among more conventional conservative observers (Appendix G). This amicus has argued that it has no roots in original Second Amendment concepts. It nevertheless persists in seeking certification in the courts. The Second Amendment Foundation's arguments submitted in Warin were explicitly rejected.

1. Second Amendment Foundation, Amicus Curiae, Filed August 4, 1975 ]

No. 75-1734
United States Court of Appeals For the Sixth Circuit
Amicus Curiae in Support of Appellant


The Second Amendment Foundation was incorporated in August 1974 as a non-profit organization under the laws of the State of Washington. It is a tax-exempt organization under 501 (c) (3) of the Internal Revenue Code. The Foundation was formed and currently exists for the purpose of preserving the effectiveness of the Second Amendment to the United States Constitution and providing aid and information to people throughout the United States who share in that goal. It has a working relationship with the Citizens Committee For the Right to Keep and Bear Arms, an organization with a broad base of support with 70,000 members residing in virtually every state of the union.

The Foundation engages in public informational and educational activities concerning the historical antecedents of the Second Amendment and its contemporary application to American society, and generally, serves as a major spokesman for the point of view that the Second Amendment remains a vital part of the Bill of Rights. Therefore, the interest of Amicus Curiae herein is to oppose the lower court's misinterpretation of the Second Amendment of the Constitution which would, in effect, deny protection to individual rights arising under the Amendment. Amicus believes it can contribute significantly to the court's understanding of these important issues.

The instant case raises an important, if not crucial issue raising the threshold question of whether an act of Congress may, under any circumstances, be held invalid under the Second Amendment to the United States Constitution. Although arising in a criminal context, the case is for all practical purposes a test case. Mr. Warin's conduct was openly and expressly designed to create a test forum. The trial court's opinion denying defendant's motion to dismiss the indictment held that the amendment establishes no private rights. If sustained that opinion would have the effect of repealing the Second Amendment. The court, in its final opinion, after trial, seems to have receded from its initial opinion and appears to hold that the Second Amendment is applicable to the facts in question, but that the statute, 26 U.S.C. 5861 (d), is sustainable notwithstanding, since it is a taxing measure.

The Second-Amendment Foundation asserts that the rights guaranteed by the Second Amendment to the United States Constitution are basic and fundamental rights possessed by the citizens of the United States. The Foundation fully adopts the position of the Bar Association of Michigan:

... the right to bear arms is a basic right. We believe that the right granted under the Second Amendment is one granted to the individual and not to the militia as an organization.

Resolution passed by the Michigan Bar Association, quoted in Feller and Getting, "The Second Amendment: A Second Look," 61 NW. U.L. Rev. 46, at fn. 3 (1966).


Appellant Francis J. Warin was indicted, tried, and convicted of "willfully and knowingly" possessing a firearm, to-wit, a "prototype submachine gun," which had not been registered to him. He moved to dismiss the indictment, citing provisions of the Second, Fifth and Ninth Amendments to the United States Constitution. The motion was denied and a memorandum issued on September 11, 1974. After trial, in which the essential facts were established by the testimony of defendant, the court again addressed the Second Amendment and stated "[Warin] may properly argue that his situation comes squarely within the scope of the Second Amendment" (opinion, pg. 2). However, it upheld the act, nevertheless, and therefore was "constrained" to find Warin guilty.


Warin is a mechanical engineer and a designer of firearms. He has previously challenged the constitutionality of the National Firearms Act in a case seeking a declaratory judgement. When that action was dismissed, he openly advised the Alcohol, Tobacco and Firearms Division of his intent to build a submachine gun and that he would refuse to register it. His ostensible purpose was to produce a criminal indictment and establish a test case.

The indictment, for violation of 26 U.S.C. 5861(d) and 5871, simply alleges possession of an unregistered submachine gun. The facts are not denied by defendant. Thus, the only issue is whether the offense charged is a crime or whether the Second Amendment protects defendant's actions.

Section 5861, in its relevant portion, provides:

Since the weapon was self-made, Mr. Warin did not "receive it. Thus, the offense charged is mere possession of an unregistered firearm.

The term "firearm" is defined in 26 U.S.C. &#167 5845 to include several types of weapons including a "machine-gun." Other provisions of the act, not involved here, impose a tax of "engaging in business" as an importer, manufacturer, or dealer (26 U.S.C. 5801), transferring a firearm (26 U.S.C. 5811) or making a firearm (26 U.S.C. 5821).

Unlike some earlier Second-Amendment cases (see United States v. Miller, 307 U.S. 174 (1939)) the factual issues which may lie at the threshold of any application of the Second Amendment have been resolved by the testimony and the findings of the court. Thus, the court stated:

It is also clear from the evidence that the weapon was of a type which is standard for military use, and fires the ammunition which is in common military use for individual soldiers in combat. (Opinion, pg. 1).

Not only is Warin a member of the "sedentary militia" to which all citizens capable of bearing arms belong (Presser v. Illinois, 116 U.S. 252 (1886)), he is a member of the Ohio Militia by virtue of that state's constitution (Ohio Const. Art. IX, 1). Thus, on the facts, this case deals with a militiaman, with a militia weapon and with mere possession of such a weapon.

The case, then, presents squarely an uncomplicated case of the application of the Second Amendment.

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I. Existing Case Law Regarding the Second Amendment Provides Limited Guidance

A. There Has Been No Definitive Interpretation of the Second Amendment

Although the Bill of Rights is a fundamental part of our constitutional heritage, there have been few cases dealing with the Second Amendment and none which can be considered a definitive, or even binding, interpretation today. Our research has uncovered only three occasions in which the Supreme Court has construed the extent of the constitutional right to keep and bear arms as guaranteed by the Second Amendment.

In United States v. Cruikshank, 92 U.S. 542 (1876), and in Presser v. Illinois, 116 U.S. 252 (1886), the Supreme Court was faced with challenges to state statutes which were alleged to contravene the right to keep and bear arms. In dismissing the challenge and upholding the state laws, the court concluded that the Bill of Rights constituted a limitation on the power of Congress and the national government, but did not constitute a limitation upon the states. Since United States v. Cruikshank applied the same rule to the First Amendment, it is clear that those cases can have no continuing vitality in light of the numerous Twentieth Century cases holding that the Fourteenth Amendment incorporates the Bill of Rights. See, e.g., Palko v. Conn., 302 U.S. 319 (1937). Certain dicta appearing in the Presser decision is significant, for the court there stated that:

B. U.S. v. Miller Provides Support To Defendant

The only other decision by the United States Supreme Court which we have found dealing with the Second Amendment is United States v. Miller, 307 U.S. 174 (1938). Oddly, this case lacked the adversary nature of most cases in that only the United States filed briefs or argued the case before the United States Supreme Court. Miller did not appear. This case dealt with an act of Congress making it illegal to transport certain weapons, including a short-barreled shotgun, in interstate commerce without first registering them. The trial court sustained a demurrer and dismissed the indictment under the Second Amendment. The Supreme Court reversed and remanded for a hearing because of the lack of an evidence supporting a finding that such a shotgun is "part of the ordinary military equipment or that its use could contribute to the common defense" or otherwise has a reasonable relationship to the preservation or efficiency of a well-regulated militia. 307 U.S. at 178. Thus, the court did not pass upon the validity of the Second-Amendment claim advanced and, lacking any party asserting the unconstitutionality of the statute, simply remanded for further proceedings. The extent to which the right may go beyond the dicta of United States v. Miller remains undetermined. The implication, however, is clear that where, as here, a relationship between the weapon regulated and the militia exists then the federal government cannot impose undue restrictions on possession and use (Note, 31 Alb. L. Rev. 74, 78 (1967)). As we argue, infra pages 25 to 26, a pervasive scheme of regulation is such an undue restriction constituting a major "chilling effect" upon the exercise of the right.

C. Lower Court Decisions Provide No Guidance

A series of recent lower court decisions have dealt with Second-Amendment claims. (See Appendix I for an analysis of each case.) Some have followed United States v. Miller and rejected Second-Amendment claims where there was no evidence in the record supporting the claim (e.g., United States v. Decker, 446 F.2d 165 (5th Cir. 1971); Cody v. United States, 460 F.2d 34 (8th Cir. ), cert. denied 409 U.S. 1010 (1972)). Other cases, however, misread United States v. Miller as dispositive of the constitutional issue (United States v. Williams, 446 F.2d 486 (5th Cir. 1971)), and dismiss Second-Amendment claims as "meritless" (United States v. Day, 476 F.2d 562 (6th Cir. 1973)), or "frivolous" (Freeman v. U.S.), (7th Cir. 1974) cert. denied 42 L. Ed.2d 269 (1974), or by flatly rejecting claims that the right to keep and bear arms is a right guaranteed by the United States Constitution (Eckert v. Philadelphia, 477 F.2d 618 (3d Cir), cert. denied, 414 U.S. 839 (1973)).

These and the other cases discussed in Appendix I reflect the absence of any articulated philosophy of the Second Amendment. No doubt many of them are cases in which an unsympathetic defendant has raised the Second Amendment as an act of desperation and has failed to argue it convincingly. By inducing this test case in which the issue is clearly joined, Mr. Warm has provided this court with an opportunity to articulate the true meaning of the Second Amendment.

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II. A Philosophy of the Second Amendment

The first ten amendments to the Constitution have been expressed as the "essential portion of the Constitution" without which the Constitution itself would never have been accepted by the American people. C. Warren, Congress, Constitution and the Supreme Court, at p. 85. The first ten amendments were prepared and adopted

Adamson v. California, 332 U.S. 46, 70 (1947) (Black J. dissenting). In retrospect, the rights guaranteed by other portions of the Bill of Bights, such as the right of freedom of speech and freedom of religion, the right to be secure against unreasonable searches and seizures, the comprehensive due process rights of the Fifth Amendment and related rights are admittedly fundamental rights, perceived as such by all Americans. In fact, our courts long ago noted the fundamental nature of these rights and their evolution from English history:

Robertson v. Baldwin, 165 U.S. 275, 281 (1897). Notwithstanding the unquestioned importance of the other provisions of the Bill of Rights, to many, the right to keep and bear arms seems an anomaly. The purpose of this portion of the brief will be to outline a philosophy of the amendment grounded in the history surrounding its adoption, and to demonstrate the continuing vitality of that philosophy.

A. The Relationship of Arms to Political Freedom

The right to keep and bear arms is, like the right of freedom of speech and freedom of the press, in its ultimate sense a political right. It is a right concerned with power, the allocation of power, and restraints upon the abuse of power. It is a right the guarantee of which grew out of the founders fear of a standing army, a fear based both upon their own recent past and upon the experiences of England under the Stuarts. It has been called

J. Story, II Commentaries on the Constitution 646 1897 (5th Ed. 1891).

A study of world history demonstrates the close interrelationship between weaponry and the political balance which has existed at all times in human societies. One prominent historian, William MacNeil, weaves an examination of this theme through his history of the world, The Rise of the West (University of Chicago Press, 1963). As he notes, transition from labor-intensive armament systems to capital-intensive armament systems has invariably been accompanied by a transfer of political power from a broad to a narrow base. Thus, the development of the chariot in the Second Millennium before Christ transferred military supremacy to the aristocracy which had the ability to invest capital in the construction of chariots, and, more expensively, the development and upkeep of powerful horses. MacNeil, op. cit. 104-05. Later, the discovery of steel smelting made possible the development of steel weapons by use of which the infantryman could overcome the aristocratic charioteers. Id. at 117-18. As a result, there was a transfer of power from the hands of the few to the hands of the many. "The abundance of iron had democratized warfare, so that extensive aristocratic empires no longer accorded with military realities." Id. at 125. The result in that time frame was increased political localism and a broadened egalitarian base. This thesis is not novel, having first been advanced by Aristotle, Aristotle, The Politics, pp. 248-49 (Penguin Books, Ed. T. D. Sinclair, Tr. 1962). See Appendix II for a further synopsis of the MacNeil thesis. It is no accident that democracy first became an accepted political theory in the days of the supremacy of the Greek hoplite and phalanx, nor that the great nation states of Europe were built when centralized military control was feasible.

B. The English Antecedents

Some authorities trace the development of the right to keep and bear arms back to the fryd existing in England in pre-conquest times and continuing in modified form as a supplement to feudal military tenure. See J. Whisker, Our Vanishing Freedom, Heritage House Publishers (1972). From the early principle that it was the obligation of citizenship to participate in the defense of the realm gradually developed, along with the nascent democratic doctrines of parliamentary government, a concomitant feeling developed that there was a "right" to participate in military activities. [bold added]

The political rights of Englishmen reached their testing ground during the turbulent Stuart dynasty and, by the end of that period, the recognition of a right to bear arms had clearly crystalized. When the new rulers, William and Mary, were called upon to issue the Bill of Rights of 1689, reasserting pre-existing rights of the English people, they provided:

I W & M Sess. c.2, 9.

As the Tennessee court concluded in Aymette v. State, the provision intended that the citizenry "being armed they may as a body rise up to defend their just rights, and compel their rulers to respect the laws." 2 Humphr. (21 Tenn.) 154, 157 (1840).

What had occurred was that the Stuart Kings found their efforts to control Parliament frustrated by the existence of armed citizens, participants of "trained Bands," similar to the organized militia, which had been established under Elizabeth I. In fact, the struggle of Charles I to disband the "Trained Bands" by proclamation in 1642 was a significant element in the confrontation between the Long Parliament and the English monarchy. See Note: "The Right to Keep and Bear Arms; A Necessary Constitutional Guarantee or an Outmoded Provision of the Bill of Rights," 31 Alb. L. Rev. 74 (1967); Whisker, op. cit. at 2-4. After the Restoration, James II, by attempting to transform the standing army into a predominantly Catholic body again raised issues of the political nature of the right to keep arms, culminating in the Glorious Revolution of 1688 and the Bill of Rights. Feller & Getting, op. cit. supra, 48. The Tennessee Supreme Court summarized this episode as follows:

The evil that was produced by disarming the people in the time of James II was that the king, by means of a standing army quartered among the people, was able to overawe them, and compel them to submit to the most arbitrary, cruel, and illegal measures. Whereas, if the people had retained their arms, they would have been able, by a just and proper resistance to those oppressive measures, either to have caused the king to respect their rights, or surrender (as he was eventually compelled to do) the government into other hands.

Aymette v. State. 2 Humphr. (21 Tenn. ) 154, 157 (1840). Another source has commented upon the ignominy in which Englishmen, deprived of the means to protect themselves, looked to a foreign king and a foreign navy to rescue their rights. G. M. Trevelyan, 2 History of England 269-70 (Doubleday Anchor ed. 1952).

C. The Americam Experience

What history teaches was recognized as well by the constitutional framers: if the government were accorded a monopoly of force, liberty could not long be secured. If military power were kept diffused, political power could not be centralized into tyranny. In the debate surrounding the ratification of: our constitution, fears of a transfer of military power to the federal authority was one of the arguments raised against the new form of government. Speaking directly to that issue the Federalist Papers, James Madison, writing as Publius, responded to fears that the federal government could establish a standing army which would trammel the rights of the people. He said:

His last observation bears repeating: an autocratic government dares not trust its citizens with arms. Thus to Madison the right to keep and bear arms was implicit as part of the fundamental rights of citizenship and as an essential element of the checks on usurpations of power.

The colonial history of the country led the framers of the Constitution and of the Bill of Rights to be full cognizant of the importance of an armed citizenry for the protection of the citizens against their government. Just as Englishmen had struggled for the right to keep and bear arms through the centuries, finally to see it secured through the confrontation with the Stuart Kings, the colonists too had the question of control of arms pressed upon them in its direct relationship to their political rights. One of General Gage's early efforts was to deny gunpowder to the colonial militiamen. See Suffolk Resolves of Sept. 6, 1774, cited in Feller & Getting, op. cit. supra, fn. 11. The succeeding efforts of the English crown to seize control of the armaments and munitions stored by the Massachusetts Militia at Concord, was the proximate cause of the opening of military hostilities between the colonists and England, D. Higginbotham, The War of American Independence, p. 51, as was the confiscation of weapons of the inhabitants of Boston in 1775. See Note 31 AIb. L. Rev. 74 (1967). In the long military struggle which followed, it was undoubtedly only the fact that the Americans, unlike most popu1ar revolutionary movements in modern times, began in possession of a large military capability that tilted the balance in favor of freedom. D. Higginbotham, op. cit. supra at 10.

It is natural that these men, anxious to secure the blessings of freedom to future generations, should insist upon the right to keep and bear arms as a means of restraining the central government. So long as citizens retained the ability to resist, they believed, an oppressive government could not survive.

We might add that the very existence of the right to keep and bear arms undoubtedly serves as a strong deterrent against any inclination which a government may have toward oppression. Nor does the revolution in armaments in the last two centuries alter that deterrent. Our country's recent experience in Viet Nam has demonstrated the limits of power and proved that large scale weapons are not effective to wipe out individual resistance. [bold added] Closer to home, the unfortunate destruction of life and property in the core cities of our nation during the mid-1960s similarly illustrates that small handheld firearms are an effective means of protest, even rebellion, against a society which is seen to be oppressive. Such protests cannot be suppressed where there is widespread disaffection and can only be resolved by government policies which respond to legitimate grievances and thus isolate the disaffected members of society. The example is advanced to illustrate that the alternative of repression was not available to the government in the case of our urban crisis and that the government could not afford to adopt tactics which would alienate large groups. Were our government to become oppressive to any significant segment of the society, a disarmed populace would be helpless but an armed populace can, as Madison affirmed, rescue their rights from the hands of the oppressors. This, undoubtedly, is the "strong moral check" to which Mr. Story referred. (J. Story, II Commentaries on the Constitution 646 1897 (5th Ed. 1891).) It forms the ultimate check and balance to our constitutional division of powers among three coordinate federal branches, 50 states, and the ultimate sovereign, the people.

D. The Right to Keep and Bear Arms Is An Individual Right

Dictum in early cases indicated that the adoption of the Second Amendment was not intended to confer or recognize a right of the individual but that it simply conferred an immunity from infringement by the federal government. Although that language would seem to have lost all force since decisions of the Supreme Court applying the Bill of Rights to the states, see, e.g., Palko v. Conn., 302 U.S. 319 (1937), it is occasionally still quoted. See Eckert v. Philadelphia, 477 F.2d 610 (3d Cir. 1973).

That the right to keep and bear arms was perceived by the framers as an individual right should be clear from the pre-revolutionary history of the right, and from its functional role in the political system. Moreover, it is strongly indicated from the fact that many of the original states provided for the right to keep and bear arms in their constitutions at the time that the Union was formed. Clearly the framers were concerned about protecting the right from infringement at any level of government.

The language of the Amendment itself is clearly directed at preservation of the right of individuals. It is not now arguable that the phrase "the right of the people" imports some collective right in the people as a body rather than an individual right. Certainly that was not the contemporaneous interpretation of the framers of the First Amendment ("the right of the people peaceably to assemble") or the Fourth Amendment ("the right of the people to be secure . . .") Mr. Justice Black has noted that the use of the words "the people" in other portions of the Bill of Rights strongly emphasizes the desire to protect individual liberty. H. Black, "The Bill of Rights," 35 N.Y.U. L.865, 871 (1960).

Nor is the introductory phrase of the Second Amendment, "a well-regulated militia, being necessary to the security of a free State," properly read as language of limitation. To the framers of the Constitution, the militia does not refer solely to an organized body. The Supreme Court has said:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states....

Presser v. Illinois, 116 U.S. 252, 265 (1886). The status of the unorganized militia is specifically recognized by the constitutions of many states. Plaintiff herein, for example, is a member of the militia of the State of Ohio pursuant to Article IX, Section 1 of the Constitution of that state. Since he is not enrolled in the militia, or what we would now call the National Guard, he is a member of the Sedentary Militia. He, like all citizens, is available to defend the liberties of the country when needed and is entitled to prepare himself for that mission.

Had the Second Amendment been perceived of solely as a guarantee of the right of the states to preserve their own militia, the amendment surely would have been written in a different manner. The Constitution provides that Congress shall have power "to provide for organizing, arming and disciplining the militia," though the appointment of officers and the authority of training the militia is reserved to the states. Article I, Section 8(16). The Congress reserves the right to provide for calling the militia to execute the laws of the Union. Article I, Section 8(15). And states are prohibited from maintaining troops in time of peace. Article I, Section 10(3). Had the intent of the Second Amendment been merely to insure that state governments retain control over their own militia to oppose the central government, the framers would surely have provided expressly for limitations upon the power of the central government over the state militia.

As the framers were well aware of the vulnerability of the organized militia to seizure by a central authority possessed with a standing army (the effort to seize the militia armaments and munitions at Concord stood forth as a clear warning) it is doubtful that they could have rested any faith in the efficacy of the Second Amendment to protect American liberties had they read its protections as limited solely to the organized militia of the states, which would be federalized as the first step of any oppressor. All of the language of Madison, of Story, of the framers of the Bill of Rights, indicates that the intent of the Second Amendment like the companion Amendments I through IX, was to secure individual liberties.

Hear Judge Cooley:

To the framers of the Constitution and its first Amendments, the militia consisted of every able-bodied white male physically able to participate in the common defense, whether or not "enrolled" (this definition was accepted in United States v. Miller, 307 U.S. 174, 179 (1938)). All were available, and under an obligation, to respond to serve the defense needs of the society. For example, the Militia Act of May 8, 1792 required the enlistment [bold added] of every able-bodied white male between the ages of 18 and 44. Viewed as a universal obligation of citizenship, the militia was designed to defend this nation. And the right to keep and bear arms, therefore, was viewed as co-extensive with citizenship and not as limited to particular organized state bodies. Presser v. Illinois, 116 U.S. 252 (1886). Only relatively recently did the present distinction between an Organized Militia (now the National Guard) and the unorganized militia of all citizens develop.

In the very debate surrounding the adoption of the Second Amendment the point was recognized:

Yet the only protection against central government control over the militia is an individual right not easily susceptible to unnoticed or sudden abridgement.

E. There is a Right of Self Defense Recognized by Law and incorporated in the Second and Ninth Amendments to the U. S. Constitution

Independent of the military application of the right to keep and bear arms, there is a recognized right to keep and bear arms for self-defense. At the time of the adoption of the specific amendments of the Bill of Rights, there appears to have been some concern that the enumeration of certain rights might be construed to exclude other rights traditionally possessed in the Anglo-American system. To preclude that possibility, the Ninth Amendment was adopted, providing

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The right of the individual to use weapons in self defense is recognized in one form or another by the constitutions of 35 states (see Note, 31 Alb. L. Rev. 74, 80 (1967)), and generally by statutes elsewhere. For example, the Pennsylvania Bill of Rights adopted at that state's 1776 Constitutional Convention stated "that the people have a right to bear arms for the defense of themselves and the state..." Pa. Const. Art. XIII, (1776), (Emphasis added). That such a provision is so widespread is persuasive of its status as a recognized fundamental right of citizens. Implicit in the right to use a weapon is the right to possess it.

In these days of increasing crimes of violence, especially burglary and robbery, exercise of the right of self defense is the only recourse to many citizens.

F. Evidence Sustains the Constitutional Right in the Instant Case

Even if the opening clause of the Second Amendment is construed to limit the right to keep and bear arms to those arms the keeping of which and the proficiency in the use of which are pertinent to the military defense of the country from foreign invaders, rather than from domestic tyrants, evidence is substantial that our country's defense has been materially benefitted by the gunkeeping habits of our citizenry. For example, the Department of the Army has, since 1903, engaged in a program of loaning weapons to gun clubs and providing free ammunition. From 1959 to 1964 alone, ammunition costing $7 million was given to private gun clubs. In explaining this practice before the Senate Subcommittee to Investigate Juvenile Delinquency of the Committee of the Judiciary, the Secretary of the Army stated:

To determine the effectiveness of its program, the Department of the Army retained Arthur D. Little, Inc., a private industrial and management research firm, to evaluate and make recommendations regarding the Army's civilian marksmanship program. The Arthur D. Little study reached the conclusion that the civilian marksmanship program:

G. Permissible Limitations On the Right to Keep and Bear Arms

Although the right to keep and bear arms is granted by the Constitution, it does not necessarily follow that no legislation affecting that right can be sustained. There is a strong argument that the prohibitions are absolute, see H. Black, "The Bill of Rights," 35 N.Y.U. L. Rev. 865, 873 (1960). However, the alternative argument of a "balancing test" may also be applied. Just as libel laws have been held valid for the punishment of abusive free speech, so too laws for the abuse of the freedom of possession of firearms are undoubtedly valid. Thus, the right to keep arms may be denied to certain individuals, such as convicted felons, United States v. Tot, 131 F. 2d 261 (3d Cir. 1942), and is not necessarily infringed by laws prohibiting the bearing of concealed weapons without a license, Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) (dictum). Obviously certain types of uses may be prohibited and possession of certain "non-militia" or non-individual categories of weapons is not protected. Aymette v. State, 2 Humphr. (21 Tenn.) 154 (1840). See, e.g., 42 U.S.C. 2122 (possession of atomic weapons unlawful). One need not contend that there are no restrictions on the bearing of arms in order to contest the position that the right does not exist.

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III. The Trial Court Erred in Viewing This Case As a Valid Exercise of the Taxing Power.

After determining that the Second Amendment does apply to Warin's actions and affords him protection, the court turned to the power of Congress to enact taxes. The court said:

In relying upon Sonzinsky, the court failed to analyze that case's history or the material differences between it and the case at hand. The only issue in Sonzinsky, the issue upon which certiorari was granted, was whether the license tax upon the commercial activity there involved was a constitutional exercise of the legislative power of Congress (300 U.S. at 511). The key to its understanding lies in the constitutional struggle surrounding the New Deal efforts to expand federal regulatory authority. The court held that the taxing power was broad enough to sustain the act and that the fact that the act might also partake of regulatory aspects and deal with goods which did not move in interstate commerce did not invalidate the act where it could be sustained as taxation.

Significantly, the court in Sonzinsky made no reference to the Second Amendment. The defendant there had no standing to assert a Second-Amendment claim. He was not asserting the right to possess weapons ("to keep and bear arms"), but the right to sell them; he was asserting the right to engage in business, as a dealer in firearms, without payment of a $200 license fee.

In the instant case, the court faces directly the issue of the constitutionality of a tax upon a non-commercial activity, the mere possession of a firearm not purchased in the marketplace, but manufactured by the defendant for his own purposes and not for resale. Central to Sonzinsky was that the defendant was taxed for "engaging in business" (26 U.S.C. 5801). Central to this case is that defendant Warm is being taxed for the exercise of his constitutional right of possessing a militia-type weapon.

To analogize, it is inconceivable that a tax could be imposed on First Amendment freedoms, such as a tax on going to church, a tax on the privilege of sending a petition to Congress, or a tax on the right to make a speech. By failing to draw a distinction between a tax or license on an unprotected commercial activity (Sonzinsky) and a tax on a direct exercise of a protected liberty (Warin) the trial court has reached the wrong result. The right to keep and bear arms "shall not be infringed." It cannot, therefore, be subjected to the requirement of a payment at the threshold. (See Moffett v. Killian, 360 F. Supp. 278 (D. Conn., 1973) ($35 license fee on right to petition state legislature is unconstitutional)).

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IV. It Has Been Argued That There Is No Infringement of the Right to Keep and Bear Arms in the Present Statute Since it "Merely" Requires Registration of Firearms

It is the position of Amicus that while such laws do not constitute total abridgment of the right to keep and bear arms, they do constitute a substantial infringement. What public purpose can be served, for example, by a gun registration act? Unless the government has the right to confiscate, it is an invasion of privacy to require owners to register their guns. Provisions of the present act establish a gun registration program. The fact of the matter is that any pervasive national gun registration program places the power to confiscate weapons in the hands of the central government. That latent power would be destructive of the passive right guaranteed by the Second Amendment.

It would be easy to set forth a "parade of horribles, under which the national system of gun registration, such as is established by the National Firearms Act, could be abused. Novels such as Come Ninevah, Come Tyre (A. Drury) and Seven Days in May (F. Knebel & C. Bailey) provide whatever imaginative scenarios one might wish. The experiences of other nations including the current national crisis in the world's largest democracy, India, the difficulties in Portugal where the clear vote of the populace is being disregarded by those possessing military power, and the resistance movements against Hitler by the Jews of Warsaw, (See They Fought Back, The Story of Jewish Resistance in Nazi Europe, Y. Suhl, ed., Crown Publishers, 1967), and by Hungarian, freedom-fighters against Soviet weapons, illustrate the potential threat to individual liberties which can occur. Unfortunately, recent revelations regarding activities of the U.S. Government, including the politicization of the Internal Revenue Service, the CIA, and the FBI show that we cannot assume that our nation is immune from such abuses of power.

If there is a right to possess militia-type weapons, as we assert, and if that right exists as a deterrent upon oppressive government as Mr. Justice Story declared, then the right is substantially chilled, if not defeated, by any registration scheme which makes arms vulnerable to a sudden confiscation program by the government.

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What Amicus asserts is a basic right of freemen to take up arms to defeat an oppressive government. [bold added] This right was expressly granted to the Barons in the Magna Carta (61), and was broadened by the 18th Century to be a right held by all Englishmen. Blackstone listed the "Right to Bear Arms" in his chapter on "Absolute Rights of Individuals," calling it a device "to restrain the violence of oppression," 1 Blackstone, Commentaries 143 (14th ed. 1803), and had the following observation, after classifying the rights of person and property:

Thus viewed as a political right, resort to the power vested in the people by the right of keeping and bearing arms is a right to be exercised only in extremis [bold added], as a last resort. So long as the government is responsible to the people, as it is today, it will always appear that a particular public interest overwhelms the latent general interest in the right to keep and bear arms. Therein lies great danger. For when the government ceases to be responsive to the populace, the right to keep and bear arms is a necessary restraint on a potentially or actually tyrannical government. But then the right will have atrophied beyond use unless it has been protected assiduously by our citizens and our courts.

Respectfully submitted,

Attorneys for Second Amendment Foundation, Amicus Curiae



1. Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).

Cases was convicted for transporting and receiving a firearm and ammunition in interstate commerce. The court followed the <i>United States v. Cruikshank</i> reasoning (discussed in Brief at 5-6), and concluded that the right to keep and bear arms is not a right "conferred upon the people" but that the Second Amendment simply prevents the federal government from infringing upon that right. The court added that it was impossible to formulate any general test to determine the limits of the Second Amendment and that a case by case decision was necessary.

2. United States v. Adams, 11 F. Supp. 216 (S.D. Fla. 1935)

A demurrer was filed to an indictment form violation of a national firearms act. The court held that the Second Amendment "does not grant the privilege to racketeers and desperadoes "to carry weapons of the character dealt with in the act. To that extent, the decision may be properly sustainable on the grounds that a reasonable classification has been formulated by the statute. The court continued to assert that the Second Amendment refers to the "militia and protective force of government; to the collective body and not individual rights." This was clearly dictum and unsupported by any prior decision of the Supreme Court.

3. United States v. Wilson, 440 F.2d 1068 (6th Cir., 1971).

The court dismissed without discussion a Second Amendment claim citing U.S. v. Freed, 401 U.S. 601 (1971). a Fifth Amendment case which did not consider application of the Second Amendment to the acts in question.

4. United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971).

The court simply quoted the Miller decision regarding the lack of evidence in that case, and treated it is dispositive.

5. United States v. Lauchli, 444 F.2d 1037 (7th Cir. cert. denied, 409 U.S. 868 (1971).

The court dismissed without discussion a claim raised under the Second Amendment.

6. United States v. McCutcheon, 446 F.2d 133 (7th Cir. 1971).

In a brief decision the court simply stated that it was sufficient to rely upon the decision of United States v. Miller.

7. United States v. Decker, 446 F.2d 164 (5th Cir. 1971).

The court here also relied upon United States v. Miller and commented that there was no evidence indicating a conflict between the sections challenged and the maintenance of a well-regulated militia.

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

The court again misread United States v. Miller and stated that it disposed of the constitutional challenge.

9. United States v. Gross, 313 F. Supp. 1330 (S.D. Ind. 1970), aff d. on other grounds, 451 F. 2d 1355 (7th Cir. 1971).

The case here dealt with a challenge to federal requirements that dealers be licensed and the court commented that there was no evidence in the record that licensing of dealers destroys or impairs the efficiency of a well-regulated militia.

10. United States v. Tomlin, 454 F.2d 176 (9th Cir., 1972).

With little discussion, the court cited United States v. Miller and Sonzinsky v. United States as controlling.

11. Cody v. United States. 460 F.2d 34 (8th Cir. cert. denied, 409 U.S. 1010 (1972)), properly construes United States v. Miller and finds no evidence in the Cody record upon which to find the act unconstitutional. From the context of the opinion it would appear that constitutionality was a subsidiary line of defense. There is no indication that Cody attempted to make an evidentiary hearing on the subject.

12. United States v. Day, 476 F.2d 562 (6th Cir. 1973), dismisses a claim based on the Second Amendment as "meritless" without discussion and citing United States v. Miller.

13. Eckert v. Philadelphia, 477 F.2d 610 (3rd Cir. cert. denied, 414 U.S. 839 (1973)).

A per curium decision, the court rejected a claim that a city ordinance regulating the purchase and sale of firearms was unconstitutional. Relying, presumably, upon the decision in United States v. Cruikshank, the court stated that the appellant was "completely wrong" in his claim that the right to keep and bear arms is a right granted by the United States Constitution.

14. Freeman v. United States (7th Cir., 1974) (unreported), cert. denied, 42 L. Ed.2d 269 (1974), affirming per curiam, denial of a motion to amend a complaint for declaratory judgment, on the grounds that the claim was "frivolous."



(University of Chicago Press, 1963)

1. Second Millennium B.C.

Development of the chariot allowed the "barbarians" to conquer the Fertile Crescent, altering the political and social life of the societies, Pg. 104-106.

2. 1700-1500 B.C.

Power in hands of charioteers made the exercise of power by the new leaders in the old manner of Hammurabi inconceivable. He would have seemed a tyrant in the eyes of his fellow warriors and been overthrown, Pg. 123.

3. 1200-1000 B.C.

Discovery of cheap steel smelting techniques facilitated widespread use of steel weapons, making it possible for commoners to afford effective weapons, so that the infantryman equaled the charioteer thus alienated subjects could equal the aristocratic military and the regime fell, Pg. 117-18.

4. 1200-1000 B.C.

"The abundance of iron had democratized warfare, so that extensive aristocratic empires no longer accorded with military realities." This effect was accompanied by a return to "political localism." Pg. 124.

5. 600 B.C.

The same forces operated in Indian civilization and the noble charioteers had lost supremacy by the Sixth Century. Pg. 171.

6. 1600-1000 B.C.

The main prop of Mycenaean social structure was the autocratic character of the warfare of the age. Chariots in Greece confirmed or established "the power of an aristocracy, whose members alone could afford the elaborate equipment necessary for chariot warfare." Pg. 190.

7. 1000-600 B.C.

Ancient Greece was dominated by noble families strong enough to limit the monarchy. "Horsemen had many advantages: they could move rapidly to surprise an enemy and charge with a momentum difficult for struggling infantry to oppose. But only men of considerable agricultural wealth could become cavalrymen, for natural grass was so scant in Greece that horses had to eat grain through most of the year. Thus, in proportion as cavalry became decisive in battle, noble landowners increased their influence in public affairs." Pg. 196.

8. Increased democratization and dispersion of political power resulted from the rise of the infantry, as the decisive factor on the battlefront. "An important change in military tactics checks, for a few centuries, the drift of Greek society toward the Middle Eastern patterns of polarization between a leisured aristocracy and an oppressed, poverty-stricken populace... The phalanx, therefore, was the school which made the Greek polis ... [I]t greatly broadened the class of citizens who took an active part in polis affairs, for the hoplites who defended their cities in the battlefield could hardly be excluded from participating in civil affairs. Pgs. 198-200.

9. 200 B.C.-200 A.D.

The Parthians were the first to adopt the "feudal" solution to the problem of defense from barbarian raids. Heavy horses and elaborate armor were needed, requiring villages to become part of a military system, which could support a new horse-mounted aristocracy. In turn, this resulted in a centralization of land power and disparity in wealth, but a decentralization of national power, since independent aristocrats might not answer the summons of their monarch. The result was a "medieval" pattern. Pgs. 393, 396.

10. 800-1200 AD.

The West also found that the cure for barbarian invasion was local self-defense conducted by "strong-armed and often insubordinate knights" Pg. 540. See also, J. Beeler, Warfare in Feudal Europe, 730-1200, Cornell University Press (1971), e.g., pages 9-11,16-17.

11. 1300-1500 AD.

A large segment of European society participated in the war and politics of medieval Europe: The pike-men of Switzerland and the bowman of England could challenge the aristocratic knights. "The result was to mobilize greater human resources within European society than was possible within the more rigidly hierarchical societies of other civilized lands." Pg. 558-59. See also, generally, C.W.C. Oman, The Art of War in the Middle Ages, Beeler, ed., Cornell University Press, (1960 ed.) treating the question of Swiss independence.

12. 1500-1650 A.D.

Concentration of power in the central government grew because of the developments in firepower. "As European armaments became more elaborate and expensive, monarchs could more easily monopolize organized violence within their states, thus strengthening domestic sovereignty." Pg. 582.

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2. Second Amendment Foundation, Reply brief, Filed October 28, 1975


In its opening brief, the Second Amendment Foundation set forth an analysis of the philosophy of the Second Amendment based upon the English history and American experience leading up to the adoption of the amendment. That historical background demonstrated that the Second Amendment was perceived by the founders as an important political right retained by the people. (See 1 Blackstone, Commentaries, 144 (14th Ed., 1803).) The brief of the Second amendment Foundation further analyzed the text of the amendment to demonstrate that the language used created an individual right vested in the nation's citizens. Finally, it distinguished the Sonzinsky case which dealt with a tax on commercial activity rather than on mere passive possession of a weapon.

In its lengthy brief, the government has failed to establish an alternate philosophical base or to refute the historical assertions set forth by the Second Amendment Foundation. In fact, the thrust of the government's position is demonstrated by its argument that the Second Amendment "is outmoded, anachronistic, and irrelevant to society in the United States today." (Respondent's Brief, page 30.) By that argument, the government demonstrates that it is seeking to have this court read out of the constitution a section placed in it by the framers. While a living constitution must be applied to changing circumstances so that the intent of the framers is preserved (as by applying freedom of speech and of the press to the electronic media) the government is arguing that this court should substitute its judgment for the amendment process of the constitution and to determine that changed conditions have outmoded the amendment. The court should decline that invitation.

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The government argues that the court must examine the legislative history of the amendment, specifically the different versions considered by Congress. As the government notes, the original proposed language was introduced by James Madison, the author of the Federalist Papers. His version included language protecting conscientious objectors from being compelled to bear arms, later deleted by the House prior to formal adoption of the amendment. However, the deletion of the conscientious objector clause provides little support to the argument of the government that the amendment establishes only a "collective" right. With that clause included, the amendment simply was double edged: one could neither be prevented from bearing arms nor compelled to bear arms. It's deletion demonstrates little regarding the final language. In fact, in the debate which lead to the deletion of the conscientious objector language, Representative Elbridge Gerry, declared his concern that the clause as proposed might be viewed as a limitation on the right of citizens to bear arms since it

More to the point is the legislative history of the Second Amendment in the United States Senate. There a proposal was made to limit the right to keep and bear arms by adding the words "for the common defence." That amendment, had it been adopted, would support the government's claim that the right is collective. The amendment was defeated. Journal of the First Session of the Senate, page 77 (Gales and Seaton, 1820); I Senate Legislative Journal, page 167 (Johns Hopkins University Press, 1972); II The Bill of Rights: A Documentary History, page 1153-54 (B. Schwartz, Ed., McGraw Hill, 1971).

Further, the government candidly quotes the statement made by Representative Elbridge Gerry in response to the question why a militia was necessary to the "the security of a free state." Gerry's answer, consistent with Madison's statement in The Federalist Papers, No. 46, was "It is to prevent the establishment of a standing army, the bane of liberty." (Quoted without citation by government at page 42.) It is that the fear of a strong central authority that made all of the Bill of Rights necessary. The same fear is expressed in the Third Amendment against quartering of soldiers in time and peace, as well as in the basic guarantees of the First, Fourth and Fifth Amendments. As Madison argued, replying to fears that the constitution would permit a large standing army, so long as citizens are armed, no government is capable of employing massive repression, the Federalist Paper. No. 46, It is that thought, basic to the political philosophy of Madison, Gerry, and others, and illustrated by our history, that found expression the Second Amendment.

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In a series of non sequiturs, respondent argues against the historical and textural interpretation urged by amicus.

1. Argument that the Second Amendment only applies to the state militia, because the constitution grants Congress authority to deal with the militia (page 14-16). Not only is there no logical connection between the premise and conclusion, but the government's argument overlooks the simple fact that the Second Amendment was adopted subsequent to the writing and adoption of the constitution and as an amendment to it. In contrast, a comparison of the Second Amendment to the language of the body of the constitution demonstrates that they are not to be read as dealing with the same matter. Thus, Article I, Section 10(3) provides, "No state shall, without the consent of Congress . . . keep troops" while the Second Amendment provides, "The right of the people to keep and bear arms shall not be enfringed." Our Constitution and Bill of Rights were drafted by skilled, precise lawyers. Were the Second Amendment intended as a protection of the rights of the States, it surely would have spoken directly to the powers of the States.

2. Argument That the Bill of Rights of 1689 is not a precedent because it applies only to Protestants (page 32). Many rights of citizenship were denied to Catholics after the "Glorious Revolution of 1688," but that fact in no way detracts from the Bill of Rights of 1689 as an important milestone in the development of our fundamental freedoms and as the forerunner of our own Bill of Rights. What the government ignores is that the Protestants were the victors in the religious struggles of 17th Century England, they were the ones who had been denied civil rights by the Stewart monarchy, and the purpose of the Bill of Rights was to assure that they would not be subsequently denied those rights again." To Americans of the eighteenth century, English history was part of American history." Brant, The Bill of Rights, page 24 (Mentor Books, 1965). It was the Political confrontations of the English people through the centuries that forged our basic liberties, from trial by jury to freedom of speech and religion. The right to bear arms is no exception.

3. Argument that Reliance on the Federalist Papers is misplaced because of provision in the constitution. Citing language in the constitution, the government concludes:

Of course, the government's argument founder on the facts. The Federalist Papers were written after the constitution, as part of the debate concerning ratification. And it was that the debate concerning ratification. And it was that debate that forged the commitment of the political leaders of the new republic, including James Madison, to adopt a Bill of Rights expressing federal guarantees of citizenship. See Brant, op cit., supra, pages 46-49. The government's argument merely illustrates that the constitutional provisions cited cannot be read as modifying the Second Amendment or answering the questions raised in The Federalist Papers. Respondent acknowledges that the Second Amendment was originally introduced by James Madison (Respondent's Brief, page 43) and it is therefore clear that Madison did not agree with the government's position that Article 1 of the constitution "laid to rest" the important political question raised by the Federalist Papers.

4. "Argument that the Second Amendment is merely negative." (page 17). So, too, are the First, Fourth and fifth Amendments, yet no-one today could assert that they do not establish and confirm fundamental substantive rights. The government has failed to offer any textural construction of the Second Amendment which makes it any more limited than the First, Fourth and Fifth Amendment.

5. Argument that the Second Amendment is not a "personal right to bear arms enforceable by federal compulsion upon the states." (page 49). Whether the Second Amendment has been incorporated, like the First, Fourth and Fifth, under the due process clause of the Fourteenth Amendment, is not before the court in this case. No state law is being challenged, but only a federal act. Clearly the Second Amendment applies with full force against actions by the federal government.

Although the government states many times that the "clear" purpose of the Second Amendment is to protect state militias, no reply has been made to the argument of amicus at ages 15-17, specifically the textural argument that the phrase "the right of the people" as use in the Second Amendment must be read consistently with the identical phrase in the First and Fourth Amendments as emphasizing the establishment of an individual right. If, as the government argues, that phrase grants no individual rights, several decades of constitutional cases must be rewritten. The fact is that all of the Bill of Rights, except only the Tenth Amendment in part, deal with assertion of individual liberties. If the Second Amendment has been intended to be the sole exception, Congress would have made that intention manifest in the language it adopted.

6. The Civil War argument. Respondent argues that the Civil War, somehow, "laid to rest" claims to an individual right to keep and bear arms (page 40). We are not aware that the Civil War is binding legal precedent, or that it has been held to have repealed portions of the constitution. Even as history, the government's brief is misdirected. The Civil War was not an example of individual citizens rising up to protect their rights against a repressive government; it was an action by several states employing their state militia against the central government. It was the ultimate resolution of a political problem not resolvable by political means.

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The nub of the argument lies within the submission of the government:

Respondent's Brief, page 41. But what is to occur when these laudatory provisions are not "available and open to all"? When a Charles II or Indira Ghandi succeeds in undermining the political guarantees established in our constitution. That questions was of real concern to our framers, and Blackstone and Madison each answered it in the same way: The ultimate protection of a citizen's liberty lies in his ability to repel the danger of repression. (See I Blackstone, Commentaries, 144 (14th Ed. 1803); The Federalist Papers, No. 46). Like impeachment of a president, such as ultimate weapon, it is hoped, need never be used; but its very existence will provide that "strong moral check" to which Mr. Justice Story referred.

[This is a rather interesting analogy in the light of recent events]

The right to keep and bear arms is, in its ultimate import, a fundamental political right of citizens and the weapon of last resort in the checks and balances of our constitutional system.

The court should affirm that portion of the trial court's decision which held that the Second Amendment confers an individual right and reverse that portion which held that the taxing power supersedes the rights conferred.

Respectfully submitted:

Davis, Wright, Todd, Riese & Jones
by Richard A Derham

Attorneys for Second Amendment Foundation, Amicus Curiae.

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3. Reply Brief of Defendant-Appellant, Filed October 1, 1975

The government has filed a rather voluminous brief in which it states its position on the points and arguments raised in the defendant's original brief and those raised in the amicus brief filed on behalf of the Second Amendment Foundation. It is the purpose of this reply brief to respond to matters raised in the government's brief only as they relate to the arguments raised in the appellant's original brief.


The defendant contends that his activity of manufacturing and possessing the weapon in question is protected by the second amendment. This was recognized by the district court. However, the court found that Congress could nevertheless impose a tax on the defendant's activity and punish him for not paying that tax. The gist of the defendant's second amendment argument is that as a member of the sedentary militia of the State of Ohio and in view of the military significance of the firearm in question, his right to keep and bear the weapon is constitutional protected and beyond the taxing authority of the Congress.

In response to this particular claim the government advances three separate arguments: That the Act in question is a valid revenue measure - a tax on the transfer of the weapon; that the Act is a proper exercise of the Congress' power to regulate interstate commerce; and that the second amendment does not confer any personal rights upon the defendant.

The government's first two arguments are not relevant to this case. The defendant does not contend, as did the defendant in Sonzinsky v. United States, 300 US 506 (1937), that the statue in question legislates in a area that is within the sole province of the policy power of the states and is therefore, beyond the Congressional taxing authority. Nor does the defendant contend that Congress has legislated in a area which is outside of its commerce power as apparently did the defendant in United States v. Biswell, 406 US 311 (1972). See also, United States v. Wilson 440 F.2d 1069 (6th Cir). The sole issue presented by the defendant's first argument is that his activity is protected by the Second Amendment and that any direct tax imposed upon this right is unreasonable.

With reference to the second amendment argument, the government, citing United States v. Miller, 307 US 174 (1939), first contends that the second amendment applies only to the organized militia of the states and does not confer any right upon the individual. This argument ignores the principle that the second amendment, like the other portions of the Bill of Rights does not confer any rights - it protects certain rights and privileges. See Robertson v. Baldwin, 165 US 275 (1897). Furthermore, the government's reading of Miller, that the second amendment protection runs only to the organized militia is not correct. The Court specifically stated at pages 178-9:

The second amendment term "well regulated" cannot be construed as "regular" as in regular troops. The history of the amendment conclusively demonstrates that it was adopted to oppose the militia against the standing army or regular army. The whole point of the second amendment was that the organization of the militia was to be well regulated (or controlled or ruled) by the right of the people (not the states) to keep and bear arms. The facts that a state may subsequently divide its militia into regulars and non-regulars does not detract from the original concept of the term "militia" as used in the second amendment. See People ex rel Leo v. Hill 126 NY 497, 27 NY 789 (1891); Klaussen v. Purcell, 18 NP (n.s) 91, 27 OD 42 (Ohio 1915).

As stated in Miller, when called upon to serve the militia men were expected to bear arms which were standardized - those in general use at the time. If the particular weapon did have such a character then it was said to bear a reasonable relationship to the preservation or efficiency of the militia. These principles were recognized in the cases of United State v. Tot, 131 F.2d 261 (3rd. Cir. 1942), rev'd on other grounds, 319 US 463 (1943) (involving and ex-felon's possession of a small caliber pistol), and to a lesser extent in Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 US 770 (1942) (also involving a small caliber pistol), both of which were heavily relied upon by the government. Indeed in Cases v. United States, supra, probably the best case that the government can cite in support of its second amendment interpretation, the court specifically stated at pages 922-23:

In contrast to that factual setting, here the district court heard stipulated evidence that the weapon involved, a sub-machine gun, is part of the ordinary military equipment of military and that this type of weapon does indeed bear a reasonable relationship to the efficiency or preservation of the military.

Also here the district court had undisputed evidence that the defendant was by law a member of the militia of the State of Ohio. And here the court heard testimony that one the defendants's purposes in designing and construction the weapon was for future presentment of the prototype to the military authorities for future mass production by them. In view of these factors it cannot be said that the defendant's possession of the weapon does not bear a reasonable relationship to the efficiency or preservation of the military.

The final argument advanced by the government on this second amendment claim is that the laws of the State of Ohio do not confer upon the defendant the right to keep and bear the weapon in question. Several portions of the Section 2923.17 of the Ohio Revised Code are cited in support of this contention.

Of course, the government's argument here presumes the validity of such legislation pursuant to both the federal and state constitutions. Article I section IV of the Ohio Constitution of 1851 states as follows:

In interpreting this principle, the Ohio Supreme Court has long ago stated that the right to keep arms for the protection of one's country and person must be recognized so long as there was nothing assaultive involved in the conduct of the individual State v. Hogan, 63 Ohio St. 202, 218-19 (1900). And in Presser v. Illinois, 116 US 252 at 265 (1886) (cited with approval in Miller decision) the Supreme Court stated:

The States cannot, even laying the . . . (second amendment) aside, prohibit the people from keeping and bearing arms...

(Mention should also be made that under the relatively recent concept of selective incorporation of certain portions of the Bill of Rights into the due process clause of the fourteenth amendment, the validity of the cited Ohio statue might well run afoul of the fourteenth amendment)

Any reliance upon the cited Ohio States would be misplaced for yet another reason. Section 2923.17 of the Ohio Revised Code must be interpreted so as to allow the constitutionally expressed exceptions of protection of one's self, family or home. Any other interpretation would render the statute unconstitutional under the Ohio Constitution. This claim is based upon the fact that Ohio courts have traditionally recognized that the constitutional exceptions as described in art, I sec.4 must be read unto each and every legislative attempt to regulate the keeping and/or bearing of arms in the State of Ohio. See e.g., State v. Nieto, 100 Ohio St. 409 (1920); Akron v. Dixon, 36 Ohio Misc. 133 (1972); Akron v. Williams, 84 O.L.Abs. 499, 172 NE.2d 28 (1960), rev'd on other grounds, 113 O. App. 293, 177 NE.2d 802, dismissed for want of debatable question, 172 Ohio St. 287, 175 NE.2d 174 (1961). Based upon this historical setting, it can only be assumed that the same exceptions would have to be read into Section 2923.17 so as to insure its continued validity.

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With respect to the fifth amendment claim, the government takes the position that the defendant lacks standing to make this argument since he never attempted to comply with Part 179, Title 27, code of Federal Regulations dealing with the manufacturing of automatic weapons.

It is true that the defendant never attempted to comply with those regulations. But it has long been understood that one who is faced with an unconstitutional licensing law may choose to ignore it, engage in the desired conduct, and challenge the constitutionality of the permit system in an ensuring criminal prosecution. See Shuttlesworth v. Birmingham, 394 US 147 (1969). It is true that the defendant was not charged with failing to register as a manufacturer of the weapon. He was prosecuted for failure to register his possession of the weapon in question. But under the particular facts of this case, as best this constitutes a distinction without a difference. What the government does not come to grips with is that the weapon which the defendant had in his possession was a prototype which he personally manufactured. He would have been in lawful possession of the firearm had he duly registered as a manufacturer. This conclusion is based upon the fact that no transfer of the weapon ever took place. In view of these particular facts, the defendant must be given standing to raise the due process arguments. Throughout its brief the government maintains that the purpose of the Act and its registration requirements is to have the person in possession of the firearms register the weapon so that the authorities can trace subsequent transfers of the weapon. As previously indicated, had the defendant registered as a manufacturer pursuant to Part 179, then he would not be charged with failing to register his possession of the firearm he had in his possession since there was never any subsequent transfer. Under these peculiar facts, the requirements of manufacturing and possession registration are so interrelated as to be indistinguishable. And because of this fact, the government's lack of standing argument should not be deemed applicable herein.

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As with the second amendment argument, the government again obfuscates the ninth amendment argument with claims concerning the taxing power of Congress, selfrimination, police powers, etc. The only contention of the government on the ninth amendment claim is that the defendant has no inherent or natural right to possess a machine gun. But the defendant never contended that he had such a specific right. Indeed, since machine guns in the form of gattling guns were not invented until well after the adoption of the ninth amendment, the defendant would be hard pressed to claim that such a specific right to possess a machine gun was an inherent right of the individual at the time the ninth amendment was ratified.

The defendant's ninth amendment claim is centered upon the principle of his inherent right to possess weapons independent of their military adaptability. In his brief, the defendant attempted to trace the long history of the right to keep weapons for numerous legitimate purposes and to show how this concept has become embodied within the ninth amendment. It does not do justice to that history for the government to simply state that the defendant has no inherent right to possess a machine gun.

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The defendant has replied to those portions of the government's brief which were responsive to the arguments raised in the defendant's brief. The balance of the government's brief addresses itself to the arguments contained in the amicus brief filed by the Second Amendment Foundation. The defendant is deliberately not replying to any of those arguments because they are, in the main, emotional arguments which are made in response to the emotional arguments urged by the Second Amendment Foundation. The legal periodicals, magazines and newspapers are replete with countervailing arguments as to the social and political desirability of gun control and gun registration. It may well be true that the times have so changed since the ratification of the Bill Rights that certain amendments are no longer socially or politically desirable insofar as they pertain to firearms and their control. If this be the case then the proper avenue for redress is to repeal those amendments. Our concept of constitutional law does not permit legislation to repeal portions of our constitution. As stated previously, the suggestion that an erosion of one amendment in the Bill of Rights threatens the others is something that should be considered before upholding the constitutionality of the Act in question which in actuality represents a quick and easy solution to a very vexing problem.

Respectfully submitted,
Britz &Zemmelman,
Attorneys for Defendant-Appellant
by Norman G. Zemmelman

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