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
INTEREST OF AMICUS
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
I. UNITED STATES V. MILLER
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
In the absence of any evidence tending to show
that possession or use of a "shotgun having a
barrel of less than eighteen inches in length"
at this time has some reasonable relationship to
the preservation or efficiency of a
well-regulated militia, we cannot say that the
Second Amendment guarantees the right to keep
and bear such an instrument.
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,
criminal history, physical condition, and
whether or not he was exempt by virtue of his
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..
THE CIRCUITS ARE SPLIT ON THE
MEANING OF THE SECOND ANENDMENT
Of the 13 federal courts of appeals, 10 have
spoken on the
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.
B. Circuit Court Cases
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.
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
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
analysis of common law
and colonial history.
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
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,"
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,
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
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’."
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
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
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.
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.
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
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,
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
§ 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
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.
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
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
not sufficient to prove that the weapon in
question was susceptible to military use. . . .
Rather, the claimant of Second Amendment
protection must prove that his or her possession
of the weapon was reasonably related to a
well-regulated militia. . . . Hale introduced no
evidence and made no claim of even the most
tenuous relationship between his possession of
the weapons and the preservation of a well
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."
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.
Hickman v. Block, 81 F. 3d 98 (9th Cir.
1996). Without any analysis of the history of
the Second Amendment, and simply citing
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)
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
Law Enforcement Alliance of America, Inc.
Richard E. Gardiner
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 . . . ."
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.
3. The cases are grouped by circuit; within
each group of circuit cases, the cases are in
chronological order, beginning with the oldest.
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.
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
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.
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
8. As with all rights guaranteed in the Bill of
Rights, the Second Amendment does not "confer"
any rights; it merely protects rights from
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.
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."
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.
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