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

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.


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 brief only.


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 Amendment.

No court has ever approved a federal statute imposing a complete deprivation of the right to possess firearms without a particularized finding of some

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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 divorce proceedings. 1

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 and history.

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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.

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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 their homes.")

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

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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. 1737 (1995).

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 National Guard

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system. 2 As the Supreme Court has recognized, the eighteenth century militia "comprised all males physically capable of acting in concert for the common defense."

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

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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 character. See,

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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 616-17 (1911).

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

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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 disarmament.

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.

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

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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. 3

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 declined. 4 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 (1992).

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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 60-70.

None of this implies that the Second Amendment prevents Congress from adopting reasonable measures to prevent the misuse of firearms. On the contrary,

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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.

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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 (1886).

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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 irrelevant.

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 defendants.

The Miller opinion is short and cryptic, and its holding must be interpreted

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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:

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

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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 Guard.

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." 5

Nor can it be supposed that the Court somehow overlooked the possibility that Second Amendment rights belong only to members of the National Guard or

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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 argument.

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

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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. 6

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

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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

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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 case.

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.

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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.

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:

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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

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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

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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

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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). 7

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

Page 25
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 theory.

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.

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 Supreme

Page 26
Courtís decision in Miller because they involve the very same weapons regulated by the statute at issue in Miller itself. 8

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:

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

Page 27

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 Miller

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. 926 (1978) 9 Unfortunately and unnecessarily, these courts have adopted sweeping rationales that essentially render

Page 28

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:

Page 29
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 AFFIRMED.

Respectfully submitted,

Robert Dowlut
Counsel for Amicus Curiae

Page 30


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 plainly unconstitutional. text@note1

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). text@note2

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). text@note3

4. Article I specifically authorizes use of the militia for law enforcement. U.S. Const. art. 1, § 8, cl. 15. text@note4

5. The disposition of the case on remand is not reported. text@note5

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. text@note6

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). text@note7

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. text@note8

9. See also United States v. Toner, 728 F.2d 115 (2d Cir. 1984) (equal-protection challenge to statute requiring registration of machine guns). text@note9

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