The Potowmack Institute
The National Rifle Association as amicus curiae
US v. Timothy Joe Emerson
US Court of Appeals, Fifth Circuit
Filed December 20, 1999
The Potowmack Institute's amicus brief and other briefs in this case are
provided at .../emeramic.html
Other additions: NRA's amicus and Wash. Legal Foundation's amicus
in Perpich v. DOD (1990); G. Washington's "Sentiments on a Peace Establishment;"
Henry Knox, "A Plan for the General Arrangement of the Militia of the United States;"
Houston v. Moore (1820), early militia case with opinion by Joseph Story;
Texas v. White (1869), Supreme Court rules secession illegal.
The District Court's Opinion Memorandum is at
The NRA gives much convoluted legal support to the basic arguments of the District Court. What is important here is that when the defense attorneys for Emerson saw the arguments against the Second Amendment defense they apparently realized that the Second Amendment was not any help to their client. Emerson will very likely be decided on other issues. When it really gets down to it the armed populace fantasy that has been formulated in the law journals over the past twenty years is not a defense that any lawyer will want to argue in court. We can hope that the Fifth Circuit will still find some excuse to take up the Second Amendment and provide some enlightenment. How the defense and the court treats this case is a news story. The NRA can find relief that the outcome will not be reported in the "rabidly, anti-gun"
Washington Post. The NRA will still be able to engage in its business as usual of small-minded, cynical, obstructionist politics to have its armed populace fantasy by defeating legislation.
The arguments that Emerson's defense have apparently backed away from is that there exists a civic limbo somewhere between the state of anarchy and the state of law and government. This is the childish political fantasy that the NRA wants to maintain with the personal right to be armed. See
What does the NRA want? The one point of policy that the NRA's childish political fantasy cannot accommodate is accountability to public authority. The one point of policy that the NRA works hardest to defeat is registration of ownership of firearms. Accountability means that gun owners fully enter into political community and accept the legitimacy of legislative, electoral and judicial processes. This was the NRA's opportunity to clarify its own position and what it really wants. Several of the amicus briefs raise the issue that what is hidden in the civic limbo of the NRA's armed populace fantasy is the right to insurrection or revolution. The NRA which promotes self-defense as one of its main points of demagogic appeal might have explain what "just powers" a government needs to possess and maintain to defend itself from the "armed citizen guerrillas" that would threaten to outflank it. It might have taken the opportunity to clear up the confusion it works hard to maintain between a natural right to revolution and civil right secured by government. It might have explained what is meant when a state maintains the monopoly on violence
(Appendix H) and how the personal right to be armed outside of any lawful authority is compatible with the sovereignty of the rule of law and a viable legal political order. The NRA might have distinquished itself from the host of insurrectionist ideologies that abound in the present political environment and anyone can get acquainted with by putting a few key words into a search engine.
The NRA's public posturing and political strategies are formulated against the absurd laws such as the Lautenberg Act at issue here that politicians come up with because they cannot formulate a firearms policy that addresses the fundamental relationship between citizen and state. The NRA can take the lead by giving up its armed populace fantasy and coming up with policy proposals that are in the true interests of gun owners as citizens and not as
"armed citizen guerrillas" or individual sovereigns.
The legal technicalities which this brief dwells on do not get at the larger, fundamental issues. The health of the political culture is much the less for the omission.
INTEREST STATEMENT AND IDENTITY OF AMICUS CURIAE
The National Rifle Association of America was
organized in 1871 as a not for profit
corporation in accordance with New York law. It
is recognized as a § 501(c)(4) entity under
the Internal Revenue Code. Its mission includes
protecting the right to keep and bear arms. The
parties have consented to NRAís appearance by
SUMMARY OF ARGUMENT
The statute at issue in this case, 18 U.S.C.
§ 922(g)(8), was intended to prevent persons
with a demonstrated history of domestic violence
from possessing firearms while under a valid
restraining order. The government now contends
that the statute also applies to a pro
forma order entered in a state divorce
proceeding without any judicial fmding that the
person subject to the order had ever engaged in
domestic abuse, or was likely ever to do so. The
court below correctly concluded that such a
sweeping and arbitrary infringement on the right
to keep and bear arms violates the Second
No court has ever approved a federal statute
imposing a complete deprivation of the right to
possess firearms without a particularized
finding of some
disabling characteristic. Nor could a
court have done so, for Congress has never
before enacted such a statute. The cases cited
by the government in its brief all relate to
restrictions on narrow categories of weapons or
to settled categories of disqualified persons
such as convicted felons. This Court should make
no mistake about the difference between those
cases and this one: the government is now asking
for a radical extension of federal power when it
insists on disarming law-abiding American
citizens simply because they are involved in
After briefly reviewing the meaning of the
Second Amendment, we will demonstrate that the
case law on which the government relies does not
compel this Court to adopt an interpretation of
the Constitution that is at odds with its text
I. The Second Amendment protects the
fundamental, individual right to
keep and bear arms.
The fundamental issue which the NRA does not address is whether or not the individuals who possess the right to "keep and bear arms" are citizens under law and government or individual sovereigns, laws unto themselves, in the State of Nature which is the state of anarchy. The Framers of the Constitution understood the difference. The NRA does not. There is no indication that any member of Congress or any candidate on the presidential campaign trail understands the difference either. That is not a reason why we cannot ask them to explain the difference.
The Second Amendment provides: "A well regulated
Militia, being necessary to the security of a
free State, the right of the people to keep and
bear Arms, shall not be infringed."
Notwithstanding the confusion about this text
engendered by twentieth-century debates over gun
control, its meaning was perfectly clear to
those who framed and ratified it, and to
virtually every serious legal commentator during
the first century of the Constitutionís
existence. The Second Amendment simply forbids
the federal government from infringing the right
of individual American citizens to keep and bear
arms, and this prohibition contributes to
fostering "a well regulated militia" by
preserving the armed citizenry from which the
framers believed that such a militia should be
drawn. Like every other provision of the Bill of
Rights, the Second Amendment has its limits.
But, like every other provision of the Bill of
Rights, the Second Amendment must mean
something. The Second Amendment will mean
nothing if the government can arbitrarily disarm
American citizens who have never been shown to
be dangerous or irresponsible.
The NRA concedes that the Second Amendment has its limits but insists that it has to mean something. The limits have to mean that when sovereign individuals quit the State of Nature and enter into political community they give up insurrectionist fantasies.
A. The text and history of the Second
Amendment are consistent and unambiguous.
The Second Amendment unequivocally states that
"the right of the people to keep and bear arms
shall not be infringed." Modern scholarship has
repeatedly and conclusively demonstrated that
this is a right belonging to individuals, just
like the "right[s] of the people" set out in the
First and Fourth Amendments. See, e.g.,
Laurence H. Tribe, 1 American Constitutional
Law 902 n. 221(2000) (Second Amendment
recognizes "a right (admittedly of uncertain
scope) on the part of individuals to possess and
use firearms in the defense of themselves and
If Laurence Tribe cannot explain the difference between citizenship under law and government and individual sovereignty in the State of Nature which is the state of anarchy, he ends up discredited in a long professional career.
The Constitution's unequivocal
statement is not qualified or diminished by the
prefatory phrase, "A well regulated Militia,
being necessary to the security of a free State.
. ." Such prefatory statements of purpose were
very common in state constitutions with which
the framers were familiar, and they were never
interpreted to detract from the operative
clauses to which they were appended. Eugene
Volokh, The Commonplace Second Amendment,
73 N.Y.U. L. Rev. 793 (1998) (discussing dozens
of examples). Any attempt to use this prefatory
language to recast the individual right as some
sort of collective or governmental right leads
to intolerable textual difficulties, and even
outright absurdities. See, e.g., William Van
Alstyne, The Second Amendment and the
Personal Right to Arms, 43 Duke
L.J. 1236 (1994); Nelson Lund, The Past and
Future of the Individual's Right to Arms, 31
Ga. L. Rev. 1, 20-29 (1996); Reynolds & Kates,
The Second Amendment and Statesí Rights: A
Thought Experiment, 36 Wm. & Mary L. Rev.
As the constitutional text suggests, the right
of the individual to keep and bear arms was
closely associated by the framers with the
militia tradition that the American colonists
brought with them from England. Many Americans
of the late eighteenth century were mistrustful
of standing armies, and the Federalists and
Anti-Federalists were agreed on at least one
fundamental point: liberty was more secure on
these shores than in England because the
American people were armed. James Madison, for
example, excoriated the European governments
that were "afraid to trust the people with arms"
and stressed "the advantage of being armed,
which the Americans possess over the people of
almost every other nation." The Federalist
No. 46, at 299 (C. Rossiter, ed. 1961).
Patrick Henry, who opposed ratification of the
Constitution partly because he feared the
specter of federal control over weapons and
their use, similarly proclaimed: "The great
object is that every man be armed. . . .
Everyone who is able may have a gun." 3 J.
Elliot, Debates in the Several State
Conventions 45 (2d ed. 1836).
These same quotes are cited by the District Court. The NRA certainly had the opportunity to study the briefs in support of the prosecution where these quotes are demonstrated not to support the claim. The NRA may have lost its grip on reality but Emerson's defense attorneys would have embarrassed themselves going to court wrapped in this misrepresentation.
The militia tradition with which the Framers
associated the right to keep and bear arms was
fundamentally different from our contemporary
As the Supreme Court has recognized, the
eighteenth century militia "comprised all males
physically capable of acting in concert for the
Completely different. So completely different that the militia institution does not exist any more.
United States v. Miller,
307 U.S. 174, 179 (1939). This was not a legal
defmition, and in fact the Constitution provides
no definition of the militia. But the legal
definition adopted in the first Militia Act was
perfectly consistent with the spirit of this
formulation. Act of May 8, 1792, ch. 33, 1 Stat.
271 (requiring militia enrollment for most
able-bodied white males between the ages of 17
and 45). To this very day, Congress has
continued to define the militia so that it
includes almost all men between the ages of 17
and 45. 10 U.S.C. § 311.
If the NRA wants the definition to have a meaning in any way related to the original meaning, it would have to advocate the reenactment of the Militia Act of 1792 which required the states to enroll that is, register militiamen for militia duty. Militia duty was conscript duty. The militia died a natural death in the early republic because no one wanted it. The NRA is not going to find the kind of republican virtue that would support that now.
For the framers, the militia was always put in
sharp contrast with standing military
organizations of any kind. See, e.g.,
Articles of Confederation art. VI, ¶ 4; 3 J.
Elliot, Debates in the Several State
Conventions 425 (3d ed. 1937) (statement of
George Mason, June 14, 1788) ("Who are the
Militia? They consist now of the whole people.
.. ."); Joyce Lee Malcolm, To Keep and Bear
Arms: The Origins of an Anglo-American Right
148 (Harvard University Press 1994)("Because of
their long-standing prejudice against a select
militia as constituting a form of standing army
liable to be skewed politically and dangerous to
liberty, every state had [in
the post-Revolutionary period] created a general
militia."). It was hoped that government would
provide military training so that the militia
could operate effectively when the need arose,
but this training was not a sine qua non
for the existence of the militia. The essential
character of the militia lay in two fundamental
qualities: that it remained inactive until a
need for its services arose, and that it
remained armed while in its usual inactive
state. See, e.g., Miller, 307 U.S. at 179
("[O]rdinarily when called for service these
[militia] men were expected to appear bearing
arms supplied by themselves and of the kind in
common use at the time.")
The sine qua non of the existence of a viable legal political community is that the militia be subject to laws and not in some absurd civic limbo between political community and anarchy.
The purpose of the Second Amendment is not and
cannot be to ensure that the militia receives
adequate military training from the government.
The government had already been given the
power to provide for such training. U.S. Const.
art. I, § 8, cl. 16. Nor does the Second
Amendment purport to require that this
congressional power be exercised responsibly, or
indeed exercised at all. The more
well-trained the militia was, the more
effective it would be, and so the less often
would circumstances require the raising of real
armies consisting of full-time, paid troops. And
since standing armies were seen as a dangerous
tool that would-be tyrants might use to oppress
the people, a well-trained militia was widely
viewed as a desirable goal, so long as the
militia retained its essentially civilian
e.g., The Federalist No. 29, at 183 (A.
Hamilton). But the Constitution gave the federal
government virtually unlimited authority to
raise armies, and it imposed no requirement that
the militia receive effective training. See U.S.
Const. art. I, § 8, cls. 12-16. The framers
consciously considered and rejected a
constitutional provision discouraging peace-time
standing armies, and they no doubt recognized
that it would be infeasible to write a
constitutional rule requiring that the militia
be well trained. See 2 Max Farrand,
The Records of the Federal Convention
What the Second Amendment does for the militia
is to ensure that "the people," from which the
militia must be drawn, can remain armed while
the militia is in its normal, inactive state.
This is why the Constitution's reference to a
"well regulated militia" does not mean
organizations like our National Guard.
Eighteenth century readers, unfamiliar with the
modem administrative state, would naturally have
recognized that "well regulated" does not
necessarily mean "heavily regulated." Rather, it
can just as easily mean "not overly regulated"
or "not inappropriately regulated." This insight
is crucial to understanding the prefatory
language of the Second Amendment. A "well
regulated" militia is, among other things,
not inappropriately regulated. The Second
Amendment simply forbids one form of
inappropriate regulation that the government
might be especially tempted
to promulgate: disarming the civilian population
from which the militia must be drawn. See
Nelson Lund, The Ends of Second Amendment
Jurisprudence: Firearms Disabilities and
Domestic Violence Restraining Orders, 4 Tex.
Rev. L. & Politics 157 (1999). Article I
authorizes the federal government to adopt a
wide range of militia regulations, such as
requiring civilians to possess arms and
requiring them to undergo military training.
See, e.g., Act of May 8, 1792, ch.
33, 1 Stat. 271. The Second Amendment is not a
foolish redundancy on Article I, but an
important prohibition against the one
intolerable form of regulation: civilian
Until industrial technology made it possible for Sam Colt to promote civilian armament there was no general interest in civilian armament. The conscript militia imposition of the early militia acts was unpopular and widely resisted.
B. The right to keep and bear arms continues to
serve its constitutional purpose in contemporary
A civilian population that is protected from the
threat of disarmament contributes to "the
security of a free state" in two principal ways.
First, the very existence of an armed citizenry
will tend to discourage would-be tyrants from
attempting to use paid troops to "pacify" the
population. This is not and could not be a
guarantee against tyranny, but it surely raises
the risks and costs of a tyrannous pacification,
and thereby reduces the probability of its being
attempted. See, e.g., Sanford Levinson, The
Embarrassing Second Amendment, 99 Yale L.J.
637, 657 & n.96 (1989).
See Potowmack Institute amicus on Sanford Levinson.
Second, and no less
important, an armed citizenry is much less
dependent on the government for protection from
the hazards of everyday life, both
in a world (like that of the eighteenth century)
where organized police forces did not exist, and
in a world (like ours) in which the police can
almost never put a stop to crimes in progress.
There is no conflict in principle between gun ownership for self-defense and accountability to public authority. The NRA cynically appeals to individual self-defense to advance its armed populace fantasy.
It may be true that we have less reason to fear
standing armies today. It is certainly true that
our reliance on the traditional militia system
for national defense and law enforcement has
But unreasonable gun control policies could
still facilitate the tyrannical oppression of
political minorities, as they have in the past.
See, e.g., Cottrol & Diamond, The Second
Amendment: Toward an Afro-Americanist
Reconsideration, 80 Georgetown L.J. 309
(1991). And even if one discounts such dangers,
the constitutional right to arms contributes to
"the security of a free state" in a second way.
As the Founders were well aware, the right of
civilians to arm themselves enables citizens to
exercise their fundamental, natural right to
self-defense when they are threatened with
criminal attack. See, e.g., Don B. Kates,
The Second Amendment and the Ideology of
Self-P rotection, 9 Const. Commentary 87
The most reliable studies indicate that armed
civilians defend themselves against criminal
violence over two million times each year. Gary
Kleck & Marc Gertz, Armed Resistance to
Crime: The Prevalence and Nature of Self-Defense
with a Gun, 86 J. Crim. L. & Criminology
150, 164 (1995). Simply displaying a weapon is
almost always sufficient to stop an attack,
though armed civilians (who far outnumber the
police) also shoot many more criminals than the
police do. Gary Kleck, Targeting Guns:
Firearms and their Control 162, 163 (Aldine
de Gruyter 1997). In addition, the widespread
civilian ownership of firearms in the United
States creates powerful deterrent effects on
criminal activity. Burglaries of occupied
dwellings, for example, are rare in the United
States compared with Canada and Great Britain.
Id. at 183. The recent wave of liberalized
concealed carry laws has produced dramatic
declines in violent crime in Texas and the other
states that have adopted this policy. John R.
Lott, Jr., More Guns, Less Crime:
Understanding Crime and Gun Control Laws
(University of Chicago Press 1998). Among the
greatest beneficiaries of this policy have been
women (who are more physically vulnerable than
men) and minorities (who tend to live in areas
where violent crime rates are higher). Id. at
None of this implies that the Second Amendment
prevents Congress from adopting reasonable
measures to prevent the misuse of firearms. On
just as there are many permissible restrictions
on free speech ranging from laws against
perjury and fraud, to restrictions on obscenity
and child pornography so there are numerous
ways in which government may regulate
exceptionally dangerous weapons and prevent
dangerous persons (such as juveniles, violent
felons, and the mentally ill) from possessing
guns at all. But all such laws must be narrowly
tailored to serve compelling public purposes,
and all such laws must be subject to strict
scrutiny by the courts. A statute arbitrarily
imposing a complete and automatic firearms
disability on a citizen who has merely been told
to obey the law in a pro forma divorce
court order, without any finding of past or
future dangerousness, simply cannot survive
constitutional scrutiny. If it could, the
government would be free to impose the same
disability on all Americans any of whom
might someday break the law or on any
disfavored subset of the population. If that
could be done, the Second Amendment would
protect only those rights that the government
chose not to infringe. This absurd conclusion is
inconsistent with the constitutional text and
with everything the Framers said about the right
to keep and bear arms.
The first thing this government has to decide is that it is a government and that it maintains the capacity and the means to defend itself from the "armed citizen guerrillas" who would outflank it. The first thing the NRA has to do is give up the absurd proposition that the purpose of all those guns in private hands is to maintain a balance of power between an armed populace and any and all government.
II. Supreme Court precedent does not support
the constitutionality of the governmentís
attempted application of section 922(g)(8).
The Supreme Court has issued only one opinion
dealing with a Second Amendment challenge to a
federal statute: United States v. Miller,
307 U.S. 174 (1939). Before turning to that
case, we should note that the governmentís
repeated reliance on a dictum in Lewis v.
United States, 445 U.S. 55, 65 n.8 (1980),
is entirely misplaced. The Second Amendment was
not at issue in Lewis, which dealt with an
equal-protection challenge to the federal
statute forbidding felons to possess firearms.
In the course of its equal-protection analysis,
the Court dropped a footnote that included a
passing reference to Miller. Although the
citation to Miller was inapposite, the
Lewis Courtís actual decision upholding
the federal felon-in-possession statute was
perfectly consistent with Second Amendment
protection of the rights of law-abiding
citizens. As Lewis noted, 445 U.S. at 66,
even the most fundamental of rights, like
voting, can be taken away from convicted felons.
The governmentís extensive discussions of dicta
in cases dealing with Second Amendment
challenges to state laws are also
misplaced. During the nineteenth century, the
Supreme Court held that the Bill of Rights,
including the Second Amendment, applies only to
the federal government. See, e.g.,
United States v. Cruikshank, 92 U.S. 542
(1875); Presser v. Illinois, 116 U.S. 252
That Court has subsequently held that some parts
of the Bill of Rights (but not others) also
constrain state governments by virtue of
"incorporation" through the Fourteenth
Amendmentís Due Process Clause. See,
e.g., Duncan v. Louisiana, 391
U.S. 145, 147-50 (1968). The Supreme Court has
never decided whether the Second Amendment is
"incorporated," and courts have continued to
apply the holdings in Cruikshank and
Presser. See, e.g., Quilici v.
Village of Morton Grove, 695 F.2d 261 (7th
Cir. 1982), cert. denied, 464 U.S. 863
(1983); Love v. Pepersack, 47 F.3d 120
(4th Cir.), cert. denied, 516 U.S. 813
(1995). The case before this Court, however,
involves a federal statute, which renders
Cruikshank and Presser (and lower
court decisions, like Quilici and
Love, that follow their holdings) simply
In United States v. Miller, two men were
indicted for violating the National Firearms Act
of 1934 by transporting an unregistered
short-barreled (or sawed-off) shotgun across
state lines. The District Court quashed the
indictment, holding without explanation that the
statute was inconsistent with the Second
Amendment. The government appealed to the
Supreme Court, which ruled for the government
without hearing any argument on behalf of the
The Miller opinion is short and cryptic,
and its holding must be interpreted
narrowly. Most of the Courtís opinion is devoted
to a discussion of the Framersí understanding of
the militia, which the Court characterized as
"civilians primarily, soldiers on occasion." 307
U.S. at 179. Without raising any question as to
whether the defendants in the case were members
of the militia, the Court rested its holding on
the presumed nature of sawed-off shotguns:
In the absence of any evidence tending to show
that possession or use of a Ďshotgun having a
barrel of less than eighteen inches in lengthí
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. Certainly it is not within
judicial notice that this weapon is any part of
the ordinary military equipment or that its use
could contribute to the common defense.
Aymette v. State of Tennessee, 2 Humph.,
Tenn., 154, 158.
Id. at 178. This statement of the holding is
both tentative and indefmite. The Court does
not say that short-barreled shotguns fall
outside the Second Amendment, but only that the
Court has not been provided with a persuasive
reason to regard them as protected. The Court
does not say that military weapons alone
are protected by the Second Amendment, but only
that protected weapons must at least have some
ability to contribute to "the common defense."
The Court does not say that "the common
defense" comprehends only foreign invaders, thus
allowing for the usefulness of privately owned
firearms against domestic insurrections, for
ordinary law enforcement, and for self-defense
against criminal attacks. And perhaps most
important, the Court never embraces the
erroneous suggestion, repeatedly suggested by
the government in this case, that the "militia"
means a military organization like the National
B. Miller accepted the individual right
interpretation of the Second Amendment.
Miller clearly, if implicitly,
acknowledged that the Second Amendment protects
the individual right of citizens to keep and
bear arms. This is clear from the face of the
Courtís opinion, which never asked whether the
defendants in that case were members of the
National Guard, or of the militia. Nor did the
Court suggest that defendantsí status as members
of the militia would have had the slightest
bearing on the outcome of the case. As the
Justices saw it, the only issue in the case was
whether the defendants had a right to possess a
particular type of weapon in violation of
a federal registration requirement. Furthermore,
the Court remanded the case, thereby offering
the defendants an opportunity to provide
evidence demonstrating exactly what the Supreme
Court had been unwilling to take judicial notice
of: that short-barreled shotguns "could
contribute to the common defense."
Nor can it be supposed that the Court somehow
overlooked the possibility that Second Amendment
rights belong only to members of the National
the militia. On the contrary, the governmentís
brief (the only brief filed in Miller)
specifically, repeatedly, and forcefully argued
that the right to arms applies only to members
of military organizations. See Brief of the
United States, Miller (No. 696), at
4-5, 12, 15, 16. The Supreme Court
refused to accept the governmentís
C. Millerís holding applies only to
weapons peculiarly adapted to criminal purposes.
Treason the waging of war against the United States and the giving of aid and comfort those who do the same is the only crime defined in the Constitution.
The Miller opinion must be read
cautiously and narrowly, in part because some of
its language seems to carry implications that
the Court could not have intended. The last
sentence in the quotation set forth above, for
example, appears to assume that private
possession of weapons that constitute "any part
of the ordinary military equipment" is per
se protected by the Second Amendment. In
1939, this would have included fully automatic
rifles, mortars, and bazookas. Indeed, as the
First Circuit pointed out shortly thereafter, it
would have to include the sawed-off shotguns at
issue in Miller itself, as well as almost
any gun except militarily useless antique
weapons like flintlock muskets. Cases v.
United States, 131 F.2d 916, 922 (1942),
cert. denied, 319 U.s. 770 (1943).
Reading Miller in light of the facts of
the case, as one must, it is clear that the
Court meant its holding to extend no farther
than the National Firearms Act
itself extended, namely to the regulation of
short-barreled shotguns and rifles, machine
guns, and silencers. These devices have only one
characteristic in common. They appear to be
particularly well-suited to criminal uses, and
ill-suited to legitimate civilian purposes.
This, at any rate, is certainly the view that
Congress adopted, and to which the Miller
Court provisionally deferred.
We know this, first, because the governmentís
brief in Miller strongly emphasized that
the National Firearms Act was directed at
weapons that "clearly have no legitimate use in
the hands of private individuals but, on the
contrary frequently constitute the arsenal of
the gangster and the desperado." Brief for the
United States, Miller (No. 696), at 5;
see also id. at 7-8 (extensive excerpt from
legislative history discussing "gangster" use of
machine guns); 8 ("weapons which are the tools
of the criminal"); 18 ("weapons which are
commonly used by criminals"); 20 ("arsenal of
the Ďpublic enemyí and the Ďgangster'").
In addition, the "criminalís weapon" theory is
the only way to make sense of the Miller
Courtís otherwise inapposite citation to the
Tennessee Supreme Courtís opinion in Aymette
v. State. See Miller, 307 U.S. at 178
(quoted above). The Tennessee court, which was
construing a state constitutional
provision that had a
substantially different wording from the
Second Amendment, could hardly have provided
authority for any general interpretation of the
Second Amendment. The only reason Aymette
might have been relevant to the Miller
case is that it dealt with certain knives that
the Tennessee court said were "usually employed
in private broils, and which are efficient only
in the hands of the robber and the assassin." It
is no accident that this language, which was
quoted in the governmentís Miller Brief,
at 19, occurs on exactly the page of Aymette
cited by the Supreme Court in Miller.
Compare 307 U.S. at 178 (quoted above)
with Aymette, 2 Humphr. (Tenn.) at 156.
Under Miller, Congress may protect the
public safety with measures designed to prevent
criminals from acquiring weapons that are
especially well suited to criminal purposes and
that have few legitimate civilian purposes. The
statute at issue in Miller involved
plausible examples of such weapons (sawed-off
shotguns and rifles, machine guns, and
silencers), and the statute placed relatively
limited obstacles (registration and a tax) in
the path of the civilian who might have a
genuine and legitimate need for such weapons.
Miller, 307 U.S. at 175 n.1 (quoting
National Firearms Act). Whatever Miller
may imply about more stringent regulation of
such weapons, no reasonable reading of
Miller can possibly justify the
governmentís current effort to impose a complete
firearms disability on any
citizen who becomes subject to a routine divorce
court restraining order, unsupported by any
finding of past or future dangerousness.
III. The Fifth Circuit precedents cited by the
government do not address the issue in this
Contrary to the governmentís startling
assertions about ,i>stare decisis, this case
differs fundamentally from United States v.
Johnson, 441 F.2d 1134(5th Cir. 1971), and
United States v. Williams, 446 F.2d
486(5th Cir. 1971). Both Johnson and
Williams involved prosecutions for
unlawful possession of an unregistered sawed-off
shotgun, which was exactly the same issue
decided by the Supreme Court in Miller.
Faced with cases indistinguishable from
Miller, this Court adhered to stare
decisis and decided them the same way the
Supreme Court had decided Miller.
Stare decisis has no bearing on a case
involving a statute utterly different from the
statute at issue in Miller,
Johnson, and Williams. As we have
explained, Miller should not, indeed
cannot, be read to encompass a total firearms
disability imposed without any finding of future
dangerousness. The governmentís contention that
Johnson and Williams control this
case is simply insupportable.
IV. Precedent from other circuits provides no
persuasive reason to accept the governmentís
attempted application of § 922(g)(8).
Several post-Miller decisions in other
circuits have variously, and often erroneously,
interpreted both the Second Amendment and
Miller. One line of cases adopts a theory
under which Second Amendment rights belong only
to state governments. Modem scholarship has
repeatedly demolished this theory, which has no
basis whatsoever in Supreme Court precedent. In
a different series of cases, courts have reached
essentially the same conclusion through a
far-fetched reading of Miller, under
which it is impossible for private citizens ever
to meet the requirements for Second Amendment
protection of their rights.
A. The "statesí right" theory should not be
adopted by this Court.
The leading case for the "statesí right" theory,
according to which the Second Amendment does not
protect any individual right, is United
States v. Tot, 131 F.2d 261(3rd Cir. 1942)
(upholding statutory ban on possession of
firearms by violent felons), reversed on
other grounds, 319 U.S. 463 (1943). The
Tot courtís entire analysis, which is
sheer dicta, reads as follows:
It is abundantly clear both from the discussions
of this amendment contemporaneous with its
proposal and adoption and those of learned,
that this amendment, unlike those providing for
protection of free speech and freedom of
religion, was not adopted with individual rights
in mind, but as a protection for the States in
the maintenance of their militia organizations
encroachments by the federal power.
The experiences in England under James II of an
armed royal force quartered upon a defenseless
was fresh in the minds of the Colonists. They
wanted no repetition of that experience in their
newly formed government. The almost uniform
course of decision in this country
where provisions similar in language are found in many
of the State Constitutions, bears out this
concept of the constitutional guarantee. A
notable instance is the refusal to extend its
application to weapons thought incapable of
131 F.2d at 266 (footnotes in original).The
Tot court could not and did not cite any
Supreme Court decision supporting these claims.
The Supreme Courtís Miller decision,
which had come only three years earlier, was
clearly based on the opposite conclusion:
Miller went off on the nature of
short-barreled shotguns without so much as a
hint that the defendantsí membership vel
non in the militia
13. Elliotís Debates on the Federal
Constitution (2d Ed. 1901) 371, 372 (Luther
Martinís letter to the Maryland Legislature); 4
Id. 203 (Lenoir, North Carolina Convention); 5
Id. 445 (Sherman of Connecticut at the
Federal Convention). Emery, The Constitutional
Right to Keep and Bear Arms (1915) 28
Harv.L.Rev. 473; Haight,
The Right to Keep and Bear Arms (1941) 2 Bill of
Rights Rev. 31; McKenna, The Right to Keep and
Bear Arms (1928) 12 Marq.L.Rev. 138.
14. As to the latter, see The Federalist, Nos.
XXIV-XXIX and No. XLVI.
15. See Aymette v. State, 1840,2 Humph. 154,21
Tenn. 154; also law review articles in fn. 13.
16. Haight, supra and McKenna, supra.
had any bearing on their Second Amendment
claims. The Supreme Courtís discussion of the
nature of the firearm would obviously have been
irrelevant had the Court given any credence to
the "statesí right" theory. And, as we observed
above, the Miller Court rejected
the governmentís vigorous advocacy of the
proposition that the Second Amendment protects
only "members of the state militia or other
similar military organization provided by law."
Brief for the United States at 5, Miller
(No. 696); see also id. at 12, 15, 18-20.
Nor did the Tot court actually cite any
other relevant authority. Contrary to Totís
assertion about "discussions of this amendment
contemporaneous with its proposal and adoption,"
all of the eighteenth century sources cited by
the court are discussions that took place before
the Constitution itself was ratified and well
before the Second Amendment was drafted or
proposed. See notes 13-14 in Tot
(citing Martin and Lenoir at their state
ratifying conventions, Sherman at the Federal
Convention, and the Federalist Papers).
Obviously, these discussions did not and
could not have anything at all to do with
interpreting the Second Amendment.
Each of the eighteenth-century discussions cited
in Tot dealt with a completely different
issue, namely the desire of the Anti-Federalists
for strong constitutional constraints on the
federal govermnentís power to keep standing
armies during peacetime, and strong guarantees
of the statesí ability to defend themselves
militarily against a potentially tyrannical
federal government. The Tot Courtís
dicta rest on the assumption that the Second
Amendment was intended to satisfy these
Anti-Federalist demands by erecting "a
protection for the States in the maintenance of
their militia organizations against possible
encroachment by the federal power." 131 F.2d at
266. This is demonstrably false, both as a
matter of history and because it entails the
absurd assumption that the Second Amendment
repealed the provisions in Article I of the
Constitution that give the federal government
plenary control over the militia and that forbid
the states from keeping troops without the
consent of Congress. U.S. Const. art. I, §
8, cis. 15-16; § 10, cl.
The Tot theory of the Second Amendment
is impossible to reconcile with the text of the
Constitution, and there is no historical
evidence that anyone ever dreamed of such a
theory until long after the founding generation
had gone to their graves. The early
constitutional commentators -took it-for granted
that the Second Amendment protects the right of
individuals to keep and bear arms, not some sort
of statesí right to maintain military forces for
use against the federal government. See,
e.g., St. George Tuckerís edition of
Blackstone's Commentaries appendix, at
300 (1803); William Rawle, A View of the
Constitution of the United States of
America 153-54 (2d ed. 1829); 3 Joseph
Story, Commentaries on the Constitution of
the United States 746-47 (1833); Thomas M.
Cooley, The General Principles of
Constitutional Law in the United States
ofAmerica 281-83 (2d ed. 1891).
Although the statesí right theory was mere
dictum in Tot, see 131 F.2d at 266-67
(holding based on the governmentís interest in
denying weapons to those who "have previously,
by due process of law, been shown to be
aggressors against society"), some courts have
subsequently relied on the theory in deciding
cases. See, e.g., United States v.
Stevens, 440 F.2d 144(6th Cir. 1971)
(possession of firearm by convicted felon),
overruled on other grounds, United States v.
Bass, 404 U.S. 336 (1971); United States
v. Johnson, 497 F.2d 548 (4th Cir. 1974)
(interstate transportation of firearm by a
convicted felon); United States v. Warin,
530 F.2d 103 (6th Cir. 1976) (possession of
unregistered machine gun), cert. denied,
426 U.S. 948 (1976); Hickman v. Block, 81
F.3d 98(9th Cir.) (state governmentís refusal to
issue permit to carry a concealed handgun),
cert. denied, 519 U.S. 912 (1996). Not a
single one of these opinions makes the slightest
effort to respond to the enormous textual and
historical difficulties entailed in the
Tot dicta. Hickman and
Warin merely cite prior cases that
adopted the statesí right theory. Johnson
and Stevens, even more egregiously,
purport to rely on Miller, a case in
which the Supreme Court had actually
refused to adopt the statesí right
Furthermore, none of these cases involved the
kind of sweeping and arbitrary firearms
disability created by the governmentís
application of § 922(g)(8) in this case.
All of these courts could have upheld the
statutes at issue without recourse to the
untenable statesí right theory, and their
decisions provide no reason at all for this
Court to adopt that hollow and misguided
interpretation of the Second Amendment.
B. This Court should not adopt an interpretation
of Miller that renders the Second
Amendment a dead letter.
A distinct line of cases has read Miller
to put insurmountable hurdles in the path of any
citizen who asserts his or her Second Amendment
rights to keep and bear arms. These cases
misinterpret Miller to mean that Second
Amendment rights can only be exercised in the
context of military service. As explained above,
Miller only becomes coherent when read as
a decision about regulating weapons that are
useful primarily to criminals. Furthermore, each
of the circuit court opinions that adopts a
broad and loose reading of Miller could
have reached the same result through a more
restrained application of the Supreme Courtís
guidance. Indeed, all of the cases discussed
below are essentially indistinguishable from the
Courtís decision in Miller because they
involve the very same weapons regulated by the
statute at issue in Miller itself.
The leading decision is Cases v. United
States, 131 F.2d 916(1st Cir. 1942), which
upheld a federal statute imposing a firearms
disability on persons convicted of a violent
crime. After noting the nonsensical consequences
entailed in Millerís apparent assumption
that the Second Amendment protects the civilian
possession of military weapons, and military
weapons alone, Cases essentially declared the
Second Amendment unintelligible:
Considering the many variable factors bearing
upon the question it seems to us impossible to
formulate any general test by which to determine
the limits imposed by the Second Amendment but
that each case under it, like cases under the
due process clause, must be decided on its own
facts and the line between what is and what is
not a valid federal restriction pricked out by
decided cases falling on one side or the other
of the line.
Id. at 922. In a remarkably confused application
of this common law approach to the Second
Amendment, the court then sustained the
defendantís conviction on the ground that he did
not belongto a military organization, was not
using the-gun "in
preparation for a military career," and was
acting "without any thought or intention of
contributing to the efficiency of the well
regulated militia." Id. at 923. This seems to
imply that violent felons would be entitled to
possess firearms if they were "preparing" for a
military career, or perhaps even if they were
careful to think of themselves as
"militia men" while carrying their guns about.
This is every bit as nonsensical as the
interpretation of Miller from which the
Cases court itself understandably recoiled. It
is certainly not a correct interpretation of
Several subsequent courts have proceeded in the
same rudderless fashion. Like Cases, each
of these decisions involved statutes that could
easily have been upheld on narrow and readily
defensible grounds, for they involved virtually
the same facts as those at issue in
Miller itself. See, e.g:,
United States v. Wright, 117 F.3d 1265
(11th Cir. 1997) (possession of unregistered
machine guns), cert. denied, 118 S. Ct. 584
(1997); United States v. Rybar, 103 F.3d
273 (3d Cir. 1996) (same), cert. denied,
118 S. Ct. 46 (1997); United States v.
Hale, 978 F.2d 1016 (8th Cir. 1992) (same),
cert. denied, 507 U.S. 997 (1993);
United States v. Oakes, 564 F.2d 384
(10th Cir. 1977) (same), cert. denied, 435 U.S.
Unfortunately and unnecessarily,
these courts have adopted sweeping rationales
that essentially render
the Second Amendment a dead letter.
So, let's bring it to life by reenacting the Militia Act of 1792 and see what the courts have to say about that.
Thus, for example, Rybar somehow read
Millerís reference to "a reasonable relationship
to the preservation or efficiency of a
well-regulated militia," to imply that the
Second Amendment does not cover those who are
in fact members of the militia of the United
States. 103 F.3d at 286. Similarly,
Wright and Oakes somehow read
Miller to mean that the Second Amendment
does not cover those who are in fact members of
their state militia. 117 F.3d at 1273; 564 F.2d
at 387. Hale seems to have concluded that
the Second Amendment is for all practical
purposes merely apiece of "historical residue."
978 F.2d at 1019.
The common thread in all these opinions is the
notion that Second Amendment rights belong only
to those whom the government has included in its
formal military organizations. This simply turns
the Constitution upside down, converting a
protected constitutional right into a
privilege that the government is free to bestow
or withhold at will. As Justice Cooley cogently
noted over a century ago:
[The militia, as has been elsewhere explained,
consists of those persons who, under the law,
are liable to the performance of military duty,
and are officered and enrolled for service when
called upon. But the law may make provision for
the enrolment of all who are fit to perform
military duty, or of a small number only, or it
may wholly omit to make any provision at all;
and if the right [to keep and bear arms] were
limited to those enrolled, the purpose of this
might be defeated altogether by the action or
neglect to act of the government it was meant to
hold in check. The meaning of the provision
undoubtedly is, that the people, from whom the
militia must be taken, shall have the right to
keep and bear arms, and they need no
permission or regulation of law for the
Thomas M. Cooley, The General Principles of
Constitutional Law in the United States of
America 282 (2d ed. 1891) (emphasis added).
This Court should decline to follow the Cases
line of decisions, which is based on a plain
distortion of Miller and on an utterly
untenable interpretation of the Constitution.
No court has ever upheld a federal statute that
entails the kind of sweeping and unjustified
infringement of Second Amendment rights involved
in the governmentís application of §
922(g)(8). The District Court correctly rejected
the governmentís attempt to assume these
unnecessary and dangerous new powers. The
constitutional analysis of the court below is
fully supported by the constitutional text and
constitutional history, and it is not foreclosed
by any precedent binding on this Court.
Accordingly, the judgment below should be
Counsel for Amicus Curiae
1. Appellee Emerson and Amicus Attorney General
of Alabama present a compelling case for
construing section 922(g)(8) to require a
judicial finding of dangerousness as a predicate
for imposing a firearms disability. We agree
that judicial restraint requires this
construction of the statute, because the
government's interpretation renders the statute
2. The National Guard consists of state-based
military organizations whose members enlist both
in their state units and in the federal armed
forces. Perpich v. Department of Defense,
496 U.S. 334, 345 (1990).
3. Nor is the government constitutionally
obligated to prevent crime. See, e.g.,
DeShaney v. Winnebago County Department of
Social Services, 489 U.S. 189 (1989);
Saenz v. Heldenfels Brothers, Inc., 183
F.3d 389(5th Cir. 1999).
4. Article I specifically authorizes use of the
militia for law enforcement. U.S. Const. art. 1,
§ 8, cl. 15.
5. The disposition of the case on remand is not
6. One must characterize this deference to
Congress as provisional because Miller
said only that it was "not within judicial
notice" that short-barreled shotguns were
weapons of the type that would be protected
under the Second Amendment. 307 U.S. at 178.
7. Nor did any court adopt the statesí right
theory until the twentieth century. The first
such decisions were Salina v. Blakesley, 83 P.
619 (Kan. 1905), and United States v.
Adams, 11 F. Supp. 216 (S.D. Fla. 1935).
8. Other cases cited by the government involved
statutes imposing firearms disabilities where
there has been ajudicial finding of past or
future misconduct. See United States v. Friel, 1
F.3d 1231 (1st Cir. 1993) (upholding federal
felon-in-possession statute); Gillespie v. City
of Indianapolis, 185 F.3d
693 (7th Cir. 1999) (upholding federal statute
imposing firearms disability as a consequence of
criminal conviction for domestic violence).
These decisions therefore offer no support for
the governmentís radical claim that a firearms
disability may be imposed without any finding of
misconduct or dangerousness.
9. See also United States v. Toner,
728 F.2d 115 (2d Cir. 1984) (equal-protection
challenge to statute requiring
registration of machine guns).
[PotowmackForum], interactive posting
[US v. Emerson PAGE]
[NRA v. Reno (July, 2000)]
[Printz and Mack PAGE]
[US v. Lopez PAGE]
Newspaper, magazine, journal articles, books, links
© Potowmack Institute