Law Enforcement Alliance of America, amicus curiae, US v. Emerson

The Potowmack Institute

The Law Enforcement Alliance of America as amicus curiae
US v. Timothy Joe Emerson
US Court of Appeals, Fifth Circuit
Filed December 17, 1999

submitted by Richard E. Gardiner


The Law Enforcement Alliance of America, Inc. (LEAA) is a nonprofit, non-partisan advocacy organization made up to tens of thousands of law enforcement professionals, crime victims, and concerned citizens dedicated to making America safer. LEAA is committed to preservation of the rights guaranteed by the Bill of Rights, especially the Second Amendment guarantee of the right to keep and bear arms.

LEAA represents its members’ interests by assisting law enforcement professionals, securing victims’ rights over criminals’ rights, seeking criminal justice reforms that target violent criminals, not law-abiding citizens, and explaining, from a law enforcement perspective, why firearms regulation is not effective in controlling crime.



The seminal case in construing the Second Amendment is United States v. Miller, 307 U.S. 174 (1939). The heart of the Miller opinion is the following:

307 U.S. at 178.

Thus, according to the Government, "Miller requires that one challenging the constitutionality of a statute under the Second Amendment show his possession of a firearm is ‘reasonably related’ to service in the militia." Brief 13. This assertion is wrong on two significant counts: Miller does not focus on either the defendant’s possession of firearms nor on "service" in the militia.

In speaking of the right to keep and bear "such an instrument" and in noting that it was not "within judicial notice that this weapon is any part of the ordinary military equipment," Miller emphasized that its focus was the character of the weapon, not the circumstances of the defendant’s possession. Indeed, if the defendant’s possession or use of the shotgun had been of concern to the Court, it certainly would have referred to "possession or use by defendant of a ‘shotgun having a barrel of less than eighteen inches in length" and would have discussed the defendant’s qualifications with respect to the militia, i.e., his age, sex,

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criminal history, physical condition, and whether or not he was exempt by virtue of his employment.

As to "service in the militia," Miller asked whether the possession or use of the specific firearm had "some reasonable relationship to the preservation or efficiency of a well-regulated militia . . . ." This test says nothing concerning a defendant’s service in the militia. Rather, since the language requires that possession or use of the specific firearm have only "some reasonable" relationship to either the "preservation" or the "efficiency" of a "well-regulated militia," service of the defendant in the militia is immaterial. For example, possession of the firearm by a person not in the militia could contribute to, and thus meet the "some reasonable" relationship test, the "preservation" of a "well-regulated militia" by enabling a member of the militia to have access to an arm. Once again, this point emphasizes that Miller’s focus was the character of the arm, not the relationship of a defendant to the militia.. 1


A. Introduction

Of the 13 federal courts of appeals, 10 have spoken on the

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Second Amendment, four holding that the right guaranteed is not an individual right (the Third, Fourth, Seventh, and Ninth Circuits), three holding that it is an individual right (the First, Fifth, and Tenth Circuits), and three with cases going each way (the Sixth, Eighth, and Eleventh Circuits). The remaining three circuits (Second, District of Columbia, and Federal) have been silent. The majority of these cases, however, preceded the Supreme Court’s decision in United States v. Verdugo Urguidez, 110 S.Ct. 3039 (1990), in which all nine members of the Court, in construing the term "the people" in the Fourth Amendment, were unanimous in agreeing that the term "the people" in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth, and Ninth Amendments, i.e •, that "the people" means at least all citizens and legal aliens while in the United States. 2

B. Circuit Court Cases 3

Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. den. sub nom., Velazguez v. United States, 319 U.S. 770 (1943). The court held that Miller did not "formulate a general rule" regarding which arms were protected by the Second Amendment and concluded, therefore, that many types of arms were not protected.

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Nonetheless, Cases expressly acknowledged that the Second Amendment guarantees an individual right when it noted that the law in question "undoubtedly curtails to some extent the right of individuals to keep and bear arms . . . ." Id. at 921 (emphasis added). Moreover, Cases concluded, as properly it should have, that Miller should not be read as holding that the Second Amendment guaranteed the right to possess or use large weapons that could not be carried by an individual. 4

United States v. Toner, 728 F.2d 115 (2nd Cir. 1984). Toner was decided on Fifth Amendment grounds. To the degree it relied on Miller for the proposition that the right to keep and bear arms was "not a fundamental right" unless the firearm had some reasonable relationship to the preservation or efficiency of a well regulated militia, it misconstrued Miller in much the same way as the Government in the instant case

United States v. Tot., 131 F.2d 261 (3rd Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943). Tot. involved possession of a firearm by a convicted felon. Despite holding that the failure of the defendant to prove, as required by Miller, a militia use for the firearm was an adequate basis for ruling against the defendant, the court, in dicta, concluded that the Second Amendment "was not adopted with individual rights in mind . . . ." This result was based on reliance on an extremely brief— and erroneous—

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analysis of common law 5 and colonial history. 6 Moreover, the "discussions of this amendment" which the court claimed were "contemporaneous with its proposal and adoption," 131 F.2d at 266, in fact concerned discussions about the adoption and ratification of the main body of the Constitution in 1787-88. These discussions occurred before the Bill of Rights was even debated in the First Congress in 1789, let alone proposed and adopted. Thus, those sources could not have been, and were not, discussing the Second Amendment.

United States v. Graves, 554 F.2d 65 (3rd Cir. 1977). Since the defendant did not raise the Second Amendment as a challenge to the "statutory program which restricts the right to bear arms of convicted felons and other persons of dangerous propensities," 7 the only discussion of the Second Amendment is found in a footnote wherein the court states "(a]rguably, any regulation of firearms may be violative of this constitutional provision."

United States v. Rybar, 103 F. 3d 273 (3rd Cir. 1996). Notwithstanding Miller’s focus on the character of the weapon,

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Rybar stated that Miller "assigned no special importance to the character of the weapon itself . . . ." Id. at 286. Moreover, contrary to the express statement in Miller that "possession or use" of the shotgun had to have "some reasonable relationship to the preservation or efficiency of a well-regulated militia," Rybar concluded that the relationship had to be between the firearm’s "possession or use" and "militia-related activity." . Id. at 286. Despite its erroneous understanding of Miller, Rybar nonetheless did not hold that the Second Amendment did not guarantee an individual right.

United States v. Johnson, 497 F.2d 548 (4th Cir. 1974). This is one of the court of appeals cases which uses the term "collective right." The entire opinion, however, is a single sentence, which states that the Second Amendment "only confers a collective right of keeping and bearing arms which must bear a ‘reasonable relationship to the preservation or efficiency of a well-regulated militia’." 8 As authority for this statement, the court cites Miller and United States v. Cody, infra. Yet, as the Supreme Court in Lewis, supra, made clear, Miller held that it is the firearm itself, not the act of keeping and bearing it, which must have a "reasonable relationship to the preservation or efficiency of a well-regulated militia." Johnson did, however, recognize that Miller required evidence of the militia nexus. Moreover, the particular provision at issue in Johnson concerned

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the interstate transportation of a firearm by convicted felons, a class of persons which historically has suffered the loss of numerous rights (including exclusion from the militia) accorded other citizens.

Love V. Peppersack, 47 F. 3d 120 (4th Cir. 1995). Love simply reiterated the court’s holding in Johnson, ignoring the Supreme Court’s holding in Verdugo-Urquidez, supra.

United States v. Johnson, Jr., 441 F. 2d 1134 (5th Cir. 1971). This decision merely quotes from Miller the statement concerning the requirement of an evidentiary showing of a militia nexus and a consequent rejection, without even the briefest of analysis, of the defendant’s challenging to the constitutionality of the National Firearms Act of 1934 (NFA). Apparently, the defendant failed to put on evidence, as required by Miller, that the firearm at issue had a militia use. Thus, Miller bound the appeals court to reject the defendant’s challenge.

United States v. Bowdach, 414 F. Supp. 1346 (S.D. Fla. 1976), aff ‘d, 561 F. 2d 1160 (5th Cir. 1977). The court held that "possession of the shotgun by a non-felon has no legal consequences. U.S. Const. Amend II."

Stevens v. United States, 440 Y.2d 144 (6th Cir. 1971) In a one sentence holding, the court concluded that the Second Amendment "applies only to the right of the State to maintain a militia and not to the individual’s right to bear arms ...." Citing Miller as authority for this conclusion, the court undertook no analysis of Miller or of the history of the ratification of the Second

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Amendment. This case, moreover, involved possession of firearms by convicted felons, a class of persons whose right traditionally have been more restricted than. law-abiding citizens.

United States v. Day, 476 F.2d 562 (6th Cir. 1973). Citing Miller, the court concluded, in reviewing a challenge to the statute barring dishonorably discharged persons from possessing firearms, that "there is no absolute right of an individual to possess a firearm." (emphasis added). Since there are certain narrowly defined classes of untrustworthy persons, such as convicted felons and, as here, persons dishonorably discharged from the armed forces, who may be barred the possession of firearms, it is a truism to say that there is not an absolute right to possess firearms. In so saying, the court implicitly recognized the individual right of peaceful and honest citizens to possess firearm.

United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. den., 426 U.S. 948 (1976). Following, and relying upon, its earlier decision in Stevens, supra, and ignoring its decision in Day, supra, the, court concluded, without any reference to the history of the Second Amendment, that it "is clear the Second Amendment guarantees a collective rather than an individual right." The court also indicated that, in reaching its decision, it was relying upon the First Circuit’s decision in Cases, supra. Yet in concluding that not all arms were protected by the Second Amendment, Cases did not hold, as did , that the Second Amendment afforded individuals no protections whatever. Warin also

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erred in concluding that Warin’s relationship to the militia was relevant to determining whether his possession of a machine gun was protected by the Second Amendment since Miller focused on the firearm itself, not the individual involved. In fact, Miller quite expansively defined the constitutional militia as encompassing "all males physically capable of action in concert for the conunon defense."

Peoples Rights Organization, Inc. v. City of Columbus, 152 F. 3d 522 (6th dr. 1998). Simply citing to Warin and Stevens (152 F.3d at 538) and ignoring the Supreme Court’s decision in Verdup-Urguidez, supra (which invalidated the holding of Stevens which the court cited), the court, in a single sentence bereft of any analysis, concluded that the "Federal Constitution does not provide a right to possess an assault weapon." 152 F.3d at 538. 9

United States v. McCutcheon, 446 F.2d 133 (7th Cir. 1971). This is another case involving the NFA in which the court merely followed Miller in holding that the NFA did not infringe the Second Amendment.

Quilici v. Village of Morton Grove, 695 F.2d 261 (7th dir. 1982), cert. den., 464 U.S. 863 (1983). In rejecting a Second and Fourteenth Amendment challenge to a village handgun ban, the courf held that the Second Amendment, either of itself or by

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incorporation through the Fourteenth Amendment, "does not apply to the states. . ." The court, in dicta, went on, however, to "comment" on the "scope of the second amendment," incorrectly summarizing Miller as holding that the right extends "only to those arms which are necessary to maintain a well regulated militia." Thus, finding (without evidence on the record) that "individually owned handguns [are not] military weapons," the court concluded that "the right to keep and bear handguns is not guaranteed by the second amendment."

Gillespie v. City of Indianapolis, ___ F.3d ___, (7th Cir. 1999). In holding that "the right protected . . . inures not to the individual but to the people collectively," the court ignored the Supreme Court’s holding in Verdugo-Urguidez, supra, that "the people" in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth, and Ninth Amendments, i.e., individuals.

United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S • 1009 (1972). This is another case involving possession of a firearm by a convicted felon. In holding that 18 U.S.C. App. § 1202(a) (reenacted in 18 U.S.C. § 922(g) in 1986) did not infringe the Second Amendment, the court held (based’ upon its partially erroneous view of Miller) that there needed to be evidence that the statute impaired the maintenance of a wellregulated militia. As there was "no showing that prohibiting possession of firearms by felons obstructs the maintenance of a ‘well regulated militia, " the court saw "no conflict" between

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§ 1202(a) and the Second Amendment. While Miller focused on the need to introduce evidence that the firearm had a militia use, Synnes at least recognized the relevance of a militia nexus. There was a clear recognition, moreover, that the Second Amendment guarantees an individual right.

United States v. Wiley, 309 F.Supp. 141 (D. Minn.), aff’d, 438 F.2d 773 (8th Cir. 1971). In another case involving possession of a firearm by a convicted felon, the court held that felons are "a separate class, whose individual right to bear arms may be prohibited." 309 F.Supp. at 145.

United States v. Decker, 446 F.2d 164 (8th Cir. 1971). Like Synnes, supra, the court here held that the defendant could "present ... evidence indicating a conflict" between the statute at issue and the Second Amendment. Since he failed to do so, the court declined to hold that the record-keeping requirements of the Gun Control Act of 1968 violated the Second Amendment. As with Synnes, the court once again implicitly recognized that the right guaranteed belonged to individuals.

United States v. Cody, 460 F.2d 34 (8th dr. 1972). This case involved the making of a false statement by a convicted felon in connection with the purchase of a firearm. After citing Miller for the propositions that "the Second Amendment is not an absolute bar to congressional regulation’ of the use or possession of firearms" and that the "Second Amendment’s guarantee extends only to use or possession which ‘has some reasonable relationship to the preservation or efficiency of a well-regulated militia, " the court

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held that there was "no evidence that the prohibition of S 922 (a) (6) obstructs the maintenance of a well-regulated militia." Thus, the court acknowledged that the Second Amendment would be a bar to some congressional regulation of the use or possession of firearms and recognized that Miller required the introduction of evidence which showed a militia use for the firearm involved.

United States v. Nelson, 859 F.2d 1318 (8th Cir. 1988). This case is not a firearms case; it involved the federal switchblade knife act. Based on the holding in United States v. Cruikshank, 92 U.S. 542, 553 (1876), that the right to keep and bear arms "is not a right granted by the Constitution," the Eighth Circuit concluded that the right is not fundamental. 10 The statement in Cruikshank -which was a civil rights prosecution of Klansmen for the theft of firearms from African-Americans— simply meant, however, that the right was not created by the Constitution, but that it preexisted the Constitution and that the Second Amendment was "to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes" to the state criminal laws.

The Eighth Circuit’s one paragraph opinion also cited Miller, Oakes, infra, and Warin, supra, without any explanation, in holding that the Second Amendment has been analyzed "purely in term of

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protecting state militias, rather than individual rights." Miller did not, however, reject the view that an individual right was protected.

United States v. Hale, 978 F.2d 1016 (8th Cir. 1992). This case was argued pro se. The court concluded that Miller held that it was

978 F.2d at 1020.

The court rejected a "collective right" argument, holding that the "purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia." Id.

One of the three judges, while concurring in the result, "disagree[d]" with the court’s interpretation of Miller, insofar as it was interpreted to "say. that Congress has the power to prohibit an individual from possessing any type of firearm, even when kept, for lawful purposes." 978 F.2d at 1021. 11

Hickman v. Block, 81 F. 3d 98 (9th Cir. 1996). Without any analysis of the history of the Second Amendment, and simply citing

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Warin and Johnson (81 F.3d at 102) and ignoring the Supreme Court’s decision in Verdugo-Urquidez, supra (which invalidated the holdings of Warin and Johnson), the court held that the plaintiff did not have standing to raise the Second Amendment in a challenge to a city’s denial of a permit to carry a concealed weapon.

United States v. Swinton, 521 F.2d 1255 (10th Cir. 1975). In the context of interpreting the meaning of the phrase "engaging in the business of dealing in firearms" in 18 U.S.C. 922(a) (1), the court noted, in dicta, that "there is no absolute constitutional right of an individual to possess a firearm." (emphasis added). Clearly, therefore, the court recognized that the right is an individual one, albeit not an absolute one.

United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. den., 435 U.S. 926 (1978). Although the court recognized the requirement of Miller that the defendant show that the firearm in question have a "connection to the militia," the court concluded, without any explanation of how it reached the conclusion, that the mere fact that the defendant was a member of the Kansas militia would not establish that connection. In light of the fact that Miller (which defines the militia as including "all males physically capable of acting in concert for the common defense") saw no relevance in the status of a defendant with respect to the militia, but instead focused upon the firearm itself, this conclusion is not without basis.

Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 1071 (S.D. Ala. 1989), aff’d, 894 F.2d 412 (11th Cir. 1990) (mem) The

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court held that the Second Amendment "guarantees to all Americans ‘the right to keep and bear arms’ . . . .

United States v. Wright, 117 F.3d 1265 (11th Cir. 1997). Although recognizing that the militia was a "broad segment of the population," the court found that the "well regulated militia" referred to only "governmental militias that are actively maintained and used for the common defense." 117. F.3d at 1273. From this, the court concluded that the Second Amendment "was inserted.into the Bill of Rights to protect the role of the states in maintaining and arming the militia." Id. Entirely missing in the court’s analysis is any mention Of the fact that the Second Amendment protects "the right of the people," not the states.


This court should affirm the judgment of the district court.

Respectfully submitted,
Law Enforcement Alliance of America, Inc.
By Counsel
Richard E. Gardiner

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NOTES 1. The Court’s later decision in Lewis v. United States, 445 U.S. 95 (1980) confirmed that Miller focused on the character of the firearm when it summarized the holding of Miller as: "[T]he Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well-regulated militia . . . ." text@note1

2. The divergence between the majority and the dissent concerned whether the Fourth Amendment restrained Government officials outside the United States, the majority holding that the Fourth Amendment was not a restraint. text@note2

3. The cases are grouped by circuit; within each group of circuit cases, the cases are in chronological order, beginning with the oldest. text@note3

4. From the First Circuit, the Government cites United States v. Friel, 1 F.3d 1231 (1st Cir. 1993) (Unpublished). There was, however, no published opinion, either by the First Circuit or the District Court for the District of Maine. text@note4

5. Tot recognized, however, that, at common law, while there was a right to bear arms, that right was not absolute and could be restricted for certain classes of persons "who have previously been shown to be aggressors against society." text@note5

6. For example, the court referred to the colonists as "a defenseless citizenry . . . ." In fact, it was precisely because the citizens have arms and were not defenseless that they desired the Second Amendment; they did not want to become defenseless. text@note6

7. Implicit in this language is the fact that the Second Amendment guarantees an individual right, albeit a right that may not be enjoyed by some narrowly defined class of untrustworthy persons. text@note7

8. As with all rights guaranteed in the Bill of Rights, the Second Amendment does not "confer" any rights; it merely protects rights from government interference. text@note8

9. The court also cited to Fresno Rifle and Pistol Club, Inc. v. Van De Kanip, 965 F. 2d 723 (9th Cir. 1992). This case, however, dealt only with the question of whether the Second Amendment applied to the states through the Fourteenth Amendment; it did not address the scope of the protections provided by the Second Amendment against federal legislation. text@note9

10. Cruikshank was the first case in which the Court spoke to the Second Amendment, acknowledging that the right to keep and bear arms was a right which pre-existed the Constitution when it stated that such a right "is not a right granted by the Constitution . . . [n]either is it in any manner dependent upon that instrument for its existence." text@note10

11. Judge Beam also disagreed that the decisions in Cases, supra, Warin supra, Oakes, infra, and Nelson, supra, "properly interpret the Constitution or the Supreme Court’s holding in Miller. Id. text@note11

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