The Potowmack Institute
The Texas Justice Foundation as amicus curiae
US v. Timothy Joe Emerson
US Court of Appeals, Fifth Circuit
Filed December 17, 1999
submitted by Stephen P. Halbrook
The Potowmack Institute's amicus brief and other briefs in this case are provided
Other files include: the 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
This brief was submitted by and presumably written by Stephen Halbrook who is mentioned in several of the amicus briefs in Emerson in support of the prosecution. Stephen Halbrook and Robert Dowlut submitted the
Firearms Civil Right Legal Defense Fund's amicus brief in Perpich (1990). In Emerson Dowlut submitted the
NRA's amicus brief.
Halbrook operates with a true belief for which words mean what he says they mean depending on the circumstance. He has quoted from John Adams' A Defence of the Constitutions of Government of the United States of America, p. 474-5 (1787-88) in "To Bear Arms for Self-Defense:," The American Rifleman, November, 1984:
"Elsewhere, Adams upheld the right of "arms in the hands of
citizens, to be used at individual discretion,. . . . in private
But, in "To Keep and Bear Their Private Arms: The Adoption of the Second
Amendment, 1787-1791," 10 Northern Kentucky Law Review 13,
1982, he writes:
After agreeing that all the continental European states had achieved absolutism by following the Caesarian precedent of erecting "praetorian bands, instead of a public militia,"3 the aristocratic Adams rejected the very right which won the independence from England" "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns. . . is a dissolution of the government."
Halbrook's second use convey's the true meaning which is quoted in fuller context in the
Potowmack Institute's amicus, p. 4, and in
Appendix I (last page). The first use above is how the words are usually misrepresented. Halbrook certain knows the difference between the two meanings. He goes beyond the true belief of a libertarian deliverer to intellectual dishonesty. Here he wants to have credibility before the court.
IDENTITY AND INTEREST OF AMICUS CURIAE
The Texas Justice Foundation is a §
501(c)(3) non-profit organization which provides
free legal representation in landmark cases
involving limited government, free markets,
private property, and parental rights. The
Foundation seeks, through litigation and
education, to protect the fundamental freedoms
essential to the preservation of American
society. The Texas Justice Foundation was formed
in 1993, and is based in San Antonio, Texas.
The primary author of this brief is the author
of three books and numerous law review articles
on the right to keep and bear arms,
which is a primary issue in this case.
The filing of this brief is desirable in that it
includes analysis of numerous original sources
concerning the meaning and intent of the Second
Amendment which the parties are not expected to
discuss. Texas Justice Foundation submits this
brief with the consent of both of the parties.
The Texas Justice Foundation filed an amicus in US v. Lopez (1990) in which the Fifth Circuit and the Supreme Court struck down the Gun Free School Zones Act as an impermissible extention of federal authority under the Commerce Clause. It is not a ruling with which the Potowmack Institute is unsympathetic. The Congress enacts this kind of misguided law because it cannot come up with a
national firearms policy that addresses the fundamental issue of the relationship between citizen and state. That relationship is more explicitly at issue in Emerson. See the
Potowmack Institute's amicus.
What is of interest in the
TJF's amicus in Lopez (not written by Halbrook) is that the TJF makes only passing mention of the Second Amendment but dwells at some length on what it calls the "infamous" case of US v. Darby, 312 US 100, (1941) which one constitutional text calls the very essence of the New Deal constitutional revolution. The TJF's brief nowhere mentions that Darby upheld the Fair Labor Standards Act of 1938 which established the forty hour work week as national law and reversed the truly infamous Lochner ruling of 1905. Asserting gun rights mixes with returning to the golden age of individual liberty under robber baron capitalism when we were all free to work seventy hours a week in coal mines.
The Rightwing Movement knows what it wants. It knows how to cultivate a constituency. The opposition it encounters is stuttering and stammering over trigger locks and public health statistics.
Throughout this brief Halbrook does not hesitate to cite himself as an authoritative source. The Potowmack Institute is disappointed that he did not reference the 1982 Senate Judiciary Committee report as an authoritative source. When Halbrook and the NRA cite this report they don't mention that Halbrook had a hand in writing it.
SUMMARY OF ARGUMENT
In prohibiting possession of a firearm by reason
of entry of a restraining order with no
requirement ofjudicial findings, 18 U.S.C. §
922(g)(8) infringes on "the right
of the people to keep and bear arms," contrary
to the Second Amendment to the U.S.
Constitution. The constitutional text
consistently uses "right of the people" to refer
to individual rights, and uses "power," not
"right," to refer to prerogatives of the United
States and the respective States.
The text further distinguishes "the people" at
large from the "militia."
Halbrook argued for the "armed populace at large" in
Perpich. The Supreme Court ignored the point.
While the federal
purpose in declaring the right to keep arms is
to encourage a well regulated militia, the right
is not limited to the militia. By contrast, the
Fifth Amendment refers to "the militia, when in
actual service." Clearly, the right of the
people to keep arms is not limited to "the
militia, when in actual service."
In the period 1768-1775, the British pursued a
policy of disarming the colonists. This violated
what the colonists, following Blackstone,
perceived as their inherent "right of having
arms for self preservation and defense." The
framers of the Constitution had such
encroachments of the Crown in mind when they
drafted the Bill of Rights.
When the Constitution was proposed in 1787
without a bill of rights, many demanded that
personal rights be declared, including the right
to have arms. Some state ratification
conventions demanded recognition of "the right
of the people to keep and bear arms" in a
declaration of rights, and in separate proposals
called for recognition of State powers over the
When James Madison proposed the bill of rights
in 1789, both he and others characterized it as
embodying "private rights." Madison endorsed a
widely-published, uncontradicted analysis that
the Second Amendment was needed to prevent
tyranny and that it confirmed the people "in
their right to keep and bear their private
arms." The House committee which revised
Madison’s draft rejected a State militia power
proposed by Roger Sherman. The Senate rejected
any limitation of the right to keep and bear
arms "for the common defense." The Senate also
rejected a separate proposal to recognize State
militia powers. The framers clearly intended the
Second Amendment to protect the right of
law-abiding persons to keep arms.
Antebellum commentaries such as by Justice Story
confirmed the same intent. The Reconstruction
Congress proposed the Fourteenth Amendment,
which was intended to protect "personal rights"
such as keeping arms, and passed the Freedmens
Bureau Act, which declared that the rights
of"personal security" and "personal liberty"
included "the constitutional right to bear
arms." In order to protect the right of freedmen
to keep arms, Congress abolished the Southern
militias, which had been seizing their arms.
There were militias formed of freedmen in the defeated Confederate states that eventually voluntarily disbanded because they did not get adequate support from the state or federal governments against the extralegal terrorist militias that we know as the Ku Klux Klan. The period 1774-76 was a revolutionary situation. Reconstruction was a period of anarchy. Neither is a model for how to run a civil society.
In sum, the constitutional text and the intent
of the framers mandates the interpretation that
the Second Amendment guarantees an individual
right to keep arms. The law at issue, since it
prohibits possession of a firearm by a person
a judicial restraining order without findings
has been entered, infringes on this right.
I. THE CONSTITUTIONAL TEXT CONSISTENTLY
USES "THE RIGHT OF THE PEOPLE" TO REFER TO
INDIVIDUAL RIGHTS, AND DESCRIBES STATE
PREROGATIVES AS "POWERS"
Halbrook analyzes words the way the
NRA's brief analyzes legal technicalities.
The fundamental issue is not of words or legalisms but of political theory.
Halbrook mentions the amici in support of the government four times. He must know what they say about him and his volume of gun rights verbiage. He might have taken the opportunity to explain whether or not his "libertarian republicans" are citizens under law and government or individual sovereigns, laws unto themselves, in the State of Nature which is the state of anarchy. Is there a middle ground that we could call constitutional government located somewhere between his authoritarian absolutism and his "libertarian republicans" who are armed first and consent to be governed second. Those are the fundamental issues we have to get at. We need to know, Does this government have the attribute of sovereignty to defend itself from the NRA's "armed citizen guerrillas" who would outflank it, threaten to outflank it, or fantasize about outflanking it? See
Appendix D. Does he think the court is not going to be concerned about these matters?
The Second Amendment to the U.S. Constitution
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." The defendant here is charged
with possession of a firearm after a court
entered a routine divorce order, without making
any findings, prohibiting him from using
physical force against an intimate partner. See
18 U.S.C. § 922(g)(8). If the Second
Amendment guarantees the personal right of an
individual to keep firearms, then the
prohibition on possession of a firearm based
solely on entry of a court order without
findings is unconstitutional.
The following sets forth a textual analysis of
the Second Amendment. It then presents a
historical account of (1) the British disarming
policies and colonists’ reactions in 1768-7 5
that gave rise to the perceived need for the
Second Amendment; (2) the intent of those
demanding a bill of rights and of the framers of
the Second Amendment, 1787-91; and (3) the
understanding of the Second Amendment through
the time of the adoption of the Fourteenth
The Constitution utilizes consistent word choice
throughout: the "United States" and the "States
respectively" have "powers," while only "the
people" have "rights," although the people also
have "powers." "The people’ protected by the
Fourth Amendment, and by the First and Second
Amendments, and to whom rights and powers are
reserved in the Ninth and Tenth Amendments,
refers to a class of persons who are part of a
national community. .. ." United States v.
Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
In fact, the term "right" is always used to
refer to protections of individuals, which are
usually referred to as "the people." See,
in addition to the Second Amendment, U.S.
Const., Amdt. 1, ("Congress shall make no law. .
the right of the people peaceably to assemble");
Amdt. 4 ("The right of the people to be secure
in their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated"); Amdt. 6 ("the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury"); Amdt. 7 ("in
Suits at common law,.. the right of trial by
jury shall be preserved"); Amdt. 9 ("the
enumeration in the Constitution, of certain
rights, shall not be construed to deny or
disparage others retained by the people"). In no
instance does the Constitution speak of the term
"right" other than in regard to individual
rights, and in no instance does it use the term
"the people" to mean a State government.
The Framers also knew how to distinguish the
"militia" when on duty from the
term "the people." The Fifth Amendment provides
in part: "No person shall be held to answer for
a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury,
except. . . in the Militia, when in actual
service in time of War or public danger. . .
. "(Emphasis added.) Thus, "the right of the
people to keep and bear arms" cannot be limited
to the exercise of that right only by "the
Militia, when in actual service," an argument
suggested by those who claim that the Second
Amendment protects only the National Guard.
Quite simply: the Second Amendment does not
refer to "the right of the militia, when in
actual service, to keep and bear arms." The
Framers used such language elsewhere and did not
find it appropriate for the Second Amendment.
The federal and state governments have powers,
not rights. E.g., U.S. Const., Art. I,
ڎ ("the Congress shall have power"); Art.
II, ڇ ("the executive Power shall be vested
in a President"); Art. III, § 1, 2 ("the
judicial Power" shall "be vested in" the federal
courts and "shall extend to" listed cases).
It is striking that the State power to
maintain militias vis-ă-vis the federal military
power was already treated in the text of the
Constitution before the Bill of Rights was
proposed, and the language of this State
power does not contain the individual-rights
vocabulary of the Second Amendment. Article I,
§ 8, Cl. 15 & 16 provide that "Congress
shall have power":
To provide for calling forth the Militia to
execute the Laws of the Union, suppress
Insurrections and repel Invasions;
To provide for organizing, arming, and
disciplining, the Militia, and for governing
such Part of them as may be employed in the
Service of the United States, reserving to the
States respectively, the Appointment of the
Officers, and the Authority of training the
Militia according to the discipline prescribed
by Congress.... (Emphasis added.)
Thus, "power" and "authority" (not "right") over
the militia are "reserved" (not "shall not be
infringed") to "the States respectively" (not
"the people"). In other words, the state power
over the militia is reserved to the states
respectively, but the right to keep and bear
arms is reserved to the people.
Further, "the Congress shall have power" "to
raise and support armies" and a navy, Article I,
§ 8, Cl. 12 & 13, but "no state shall,
without the consent of Congress,
keep troops, or ships of war in time of peace,..
. or engage in war, unless actually invaded, or
in such imminent danger as will not admit of
delay." Article I, § 10, Cl. 3. The
contrasting use of the word "keep" is
instructive. No state shall "keep troops," but
the people have a right to "keep. . . arms." The
Second Amendment does not say that "the power to
keep militia troops is reserved to the States
respectively." Notice also that "the people"
have the right to "bear arms"; it makes sense to
say that no state shall
"keep troops," but it would be strange to say
that a state shall or shall not "bear arms,"
because a state cannot carry arms, only an
individual can. Of course, the Framers could
have said that "no state shall keep troops who
bear arms unless actually invaded, or in such
imminent danger as will not admit of delay." But
that strict limitation does not exist in the
Second Amendment. "The people" have a right to
keep and bear arms on a permanent basis, and are
not limited to bearing arms as state troops when
the state is "actually invaded, or in such
imminent danger as will not admit of delay."
The term "the States respectively" reappears in
the Tenth Amendment, where it is distinguished
from "the people": "The powers not delegated to
the United States by the Constitution, nor
prohibited by it to the states, are reserved to
the states respectively, or to the people." As
examples, the power to raise armies is delegated
to the United States and prohibited to the
States, while the power over the militia is
reserved exclusively to the States, except as
delegated to Congress in Article I, § 8. The
Tenth Amendment clarifies that "the people" have
"powers" as well as "rights." These powers
include suffrage, jury service, militia service,
and other institutions in which the people
govern, administer justice, keep order, and
otherwise participate in political society.
E.g., U.S. Const., Art. I, § 2, ci. 1
("The House of Representatives shall be composed
of Members chosen every second year by the
People of the several
States"). By contrast, the state and federal
governments have "powers" only and no "rights."
Only individuals have "rights."
Finally, governmental powers are "delegated" or
"reserved"; only rights retained by the people
may not be "abridged" or "infringed," terms
found in the First and Second Amendments. The
former refer to authorized powers of government,
while the latter refer to individual rights
excepted from the exercise of governmental
The Second Amendment begins with a clause
declaring a political principle about the
militia, followed by a clause declaring a
substantive right. Its structure is equivalent
to the following: "A well educated citizenry,
being necessary to the culture of a free state,
the right of the people to keep and read books,
shall not be infringed." It would hardly do to
argue that a government-selected intelligentsia
is today’s well educated citizenry and thus that
this group is the only entity with the right to
keep and read books. Indeed, the right would
extend to people who were not "well educated,"
since they are among "the people." Nor is it
tenable to argue that the National Guard is the
militia, only its members have a right to keep
and bear arms, and then only when on duty.
In short, the) constitutional text mandates the
conclusion that the Second Amendment guarantees
a personal, individual right to keep arms.
II. BRITISH SEIZURES OF PRIVATE FIREARMS
PROMPTED ADOPTION OF THE SECOND AMENDMENT
"In the construction of the language of the
Constitution. . . we are to place ourselves as
nearly as possible in the condition of the men
who framed that instrument. Undoubtedly, the
framers. . . had for a long time been absorbed
in considering the arbitrary encroachments of
the Crown on the liberty of the subject. .. ."
Ex Parte Bain, 121 U.S. 1, 12 (1887).
Such encroachments were described by
"A.B.C." probably Samuel Adams in the
Boston Gazette, September 26, 1768, at 3,
It is reported that the Governor has said, that
he has Three Things in Command from the
Ministry, more grievous to the People, than
any Thing hitherto made known. It is
conjectured 1st, that the Inhabitants of this
Province are to be disarmed. 2d. The
Province to be governed by Martial Law. And 3d,
that a Number of Gentlemen who have exerted
themselves in the Cause of their Country, are to
be seized and sent to Great-Britain. (Emphasis
In an article he signed "E.A.," Samuel Adams
quoted from Sir William Blackstone to
demonstrate the rights of the colonists as
At the revolution, the British constitution was
again restor’d to its original principles,
declared in the bill of rights; which was
afterwards pass’d into a law,
and stands as a bulwark to the natural rights of
subjects. "To vindicate these rights, says Mr.
Blackstone, when actually violated or
attack’d, the subjects of England are entitled
first to the regular administration and free
course of justice in the courts of law
next to the right of petitioning the King
and parliament for redress of grievances
and lastly, to the right of having and using
arms for selfpreservation and defence."
These he calls "auxiliary subordinate rights,
which serve principally as barriers to protect
and maintain inviolate the three great and
primary rights of personal security, personal
liberty and private property": And
that of having arms for their defense he tells
us is "a public allowance, under due
restrictions, of the natural right of
resistance and self-preservation, when the
sanctions of society and laws are found
insufficient to restrain the violence
Boston Gazette, Feb. 27, 1769, at 3; also
in 1 The Writings of Samuel Adams 317-18
(1904), quoting verbatim from 1 Blackstone,
Commentaries *140.41, 143-44.
By 1774, the British were engaged in massive
search-and-seizure operations for firearms.
Worchester County admonished General Gage that
"they apprehend the People justified in
providing for their own Defense, while they
understood there was no passing the Neck without
Examination,.. . & many places searched, where
Arms and Ammunition were suspected to be; and if
found seized; yet as the People have never acted
offensively, nor discovered any disposition so
to do, as above related, the County apprehend
this can never justify the seizure of private
Property." Boston Gazetter, Oct. 17,
1774, at 2. In another incident, "what most
irritated the People next to seizing their Arms
and Ammunition, was the apprehending six
gentlemen, select men of the town of Salem, who
had assembled a Town meeting." Boston
Gazetter, Dec. 5,
After attempting to seize the arms of militiamen
at Lexington and Concord, General Gage
proclaimed that citizens would be allowed to
leave occupied Boston only after they
surrendered their firearms. In the Declaration
of Causes of Taking Up Arms of July 6, 1775, the
Continental Congress explained what happened:
"It was stipulated that the said inhabitants
having deposited their arms with their own
magistrates, should have liberty to depart. . .
. They accordingly delivered up their arms, but
in open violation of honor,. . . the governor
ordered the arms deposited as aforesaid, that
they might be preserved for the owners, to be
seized by a body of soldiers . . . ."
Connecticut Courant, July 17, 1775, at 2.
Gage not only sought to disarm militias, but
proclaimed that "all persons in whose possession
any fire arms may hereafter be found, will be
deemed enemies to his majesty’s government."
New York Journal, Aug. 31, 1775, at 1.
The above is only a sampling of complaints by
the colonists that the British violated
their rights by seizing their private
arms. For a definitive study, see S.
Halbrook, "Encroachments of the Crown on the
Liberty of the Subject: PreRevolutionary Origins
of the Second Amendment," 15 University of
Dayton Law Review, 91 (Fall 1989). The
historical evidence is unquestionable that the
Amendment was prompted in part by the British
policy of confiscating the firearms of
The right to have arms for individual and
collective defense was recognized in
the first state bills of rights. The
Pennsylvania Declaration of Rights, Art. XIII
(1776) provided: "That the people have a right
to bear arms for defense of themselves, and the
state... ." The Vermont Constitution, Art. I,
§ 15 (1777), is identical. While the case at
bar is about the right to "keep" arms, this
usage shows that the term "bear arms" extends to
individual use of arms in self defense and is
not limited to militia activity.
The North Carolina Declaration of
Rights, Art. XVII (1776), provided: "That the
People have a Right to bear Arms for the Defense
of the State . . . ." The Massachusetts
Declaration of Rights, Art. XVII (1780)
provided: "The people have a right to keep and
bear arms for the common defense."
The right of "the people" to "keep"
arms clearly includes possession in the home,
and this right was considered
fundamental in all the States. See S. Halbrook,
A Right to Bear Arms: State and Federal Bills
ofRights and Constitutional Guarantees
(Westport, Conn.: Greenwood Press, 1989).
In sum, an important grievance of the colonists
against the Crown was the seizure of private
arms. Protection against this violation would
find expression in the Second Amendment.
III. THE FRAMERS OF THE SECOND AMENDMENT
SOUGHT TO PROTECT AN INDIVIDUAL RIGHT
TO KEEP ARMS
When the Constitution was proposed in 1787
without a bill of rights, proponents argued that
one was unnecessary in a republic with an armed
populace. In The Federalist No. 46, James
Madison contended that any federal tyranny
"would be opposed [by] a militia amounting to
near half a million citizens with arms in their
hands." Alluding to "the advantage of being
armed, which the Americans possess over the
people of almost every other nation," Madison
continued: "Notwithstanding the military
establishments in the several kingdoms of
Europe, which are carried as far as the public
resources will bear, the governments are afraid
to trust the people with arms." 15
Documentary History of the Ratification of
the Constitution 492-93 (Kaminski & Saladino
eds., 1986) (hereafter "Docu. Hist.").
Halbrook has seen the amici in support of the government where these quotes are given their accurate meaning. He still repeats them for the court without embarrassment.
The first demand for a bill of rights at a State
ratification convention came from
the Dissent of the Pennsylvania Minority, which
proposed: "That the people have a right to bear
arms for the defense of themselves and their own
state, or the United States, or for the purpose
of killing game; and no law shall be passed for
disarming the people or any of them, unless for
crimes committed, or real danger of public
injury from individuals. . . ." 2 Doc.
Hist. 623-24 (Jensen ed., 1976). As this
clarifies, the term "bear arms" extended to
purposes such as self defense and hunting, and
was not limited to militia service. Alexander
White, a Federalist, responded:
There are other things so clearly out of the
power of Congress, that the bare recital of them
is sufficient, I mean the ". . . the rights of
bearing arms for defence, or for killing game. .
. ." These things seem to have been inserted
among their objections, merely to induce the
ignorant to believe that Congress would have a
power over such objects and to infer from their
being refused a place in the Constitution, their
intention to exercise that power to the
oppression of the people.
8 Doc. Hist. 404 (Kaminski & Saladino
eds., 1988). The irony of White’s argument is
inescapable in light of the position of the
government and its amici in this case that no
personal right to keep arms exists and that no
limits exist on the power of Congress to
prohibit possession of firearms.
In the Massachusetts convention, Samuel Adams
proposed: "And that the said Constitution be
never construed to authorize Congress. . . to
prevent the people of the United States, who are
peaceable citizens, from keeping their own
arms... ." Debates of the Massachusetts
Convention of 1788 at 86-87, 266 (Boston,
1856). The New
Hampshire convention was the first actually to
pass a demand for a bill of rights, which
included: "Congress shall never disarm any
citizen, unless such as are or have been in
actual rebellion." 1 Elliot, Debates in the
Several State Conventions 326 (1836)
(hereafter cited as "Elliot").
Antifederalist Richard Henry Lee, who was in the
forefront of those demanding a bill of rights,
noted that "a militia, when properly formed, are
in fact the people themselves." He added: "to
preserve liberty, it is essential that the whole
body of the people always possess arms, and be
taught alike, especially when young, how to use
them. . . ." Lee, Additional Letters from the
Federal Farmer 169-70 (1788).
In the Virginia convention, George Mason argued
that "to disarm the people.. was the best and
most effectual way to enslave them. . . ." 3
Elliot 380. Patrick Henry averred that "the
great object is, that every man be armed
Every one who is able may have a gun." Id. at
386. "Who are the militia, if they be not the
people of this country," queried Mason.
Id. at 425. The Virginia convention recommended
a bill of rights which included the following:
"That the people have a right to keep and bear
arms; that a well-regulated militia, composed of
the body of the people, trained to arms, is the
proper, natural, and safe defence of a free
state. . . ." Id. at 659.
The above demonstrates the dual and interrelated
concerns that the militia consist of the entire
citizenry and that the right of the entire
people to have arms be recognized.
The right to have anns for personal defense or
sport needed no special mention because it was
considered beyond the federal power (the
reinvention of the interstate conimerce clause
in the New Deal was far in the future). Yet the
language of the Second Amendment clearly
protects the right for such purposes.
The Virginia convention also recommended an
entirely different set of amendments concerning
the structure of the government, including the
provision: "That each state respectively shall
have the power to provide for organizing,
arming, and disciplining its own militia,
whensoever Congress shall omit or neglect to
provide for the same." Id. at 660. The State
power over the militia was thus seen in clear
contrast from the right of the people to have
arms. While this State power would never be
adopted as part of the federal Constitution,
amici in this case argue as if this provision
was adopted instead of what became the Second
The New York convention recommended an arms
guarantee almost identical to that of Virginia,
and proposed a militia provision in a separate
list of amendments. 1 Elliot 3 27-28, 331. The
North Carolina convention copied the Virginia
recommendations verbatim, including the arms
guarantee in the bill of rights and, in a
separate body of amendments, the State militia
power. 4 Elliot 244-45.
The great compromise was now reached: the
Constitution would be ratified and
amendments would be considered in the first
Congress. In 1789, Rep. James Madison
outlined a speech proposing the bill of rights,
explaining: "They [the proposed amendments]
relate first to private rights fallacy on
both sides espec[iall]y as to English
Decl[aratio]n. of Rights i. mere act of
parl[iamen]t. 2. no freedom of press. . .
arms to protest[an]ts." 12 Madison
Papers 193-94 (Rutland ed. 1979). The
English Declaration provided: "That the Subjects
which are Protestants, may have Arms for their
Defence suitable to their Condition, and as are
allowed by Law." 1 W. & M., Sess. 2, c.2 (1689).
Madison’s thought was that possession of arms
was a "private (i.e., individual) right" which
should extend to the entire people, not just
Protestants, and that this right should not be
capable of being taken away by a "mere act" of
On June 8, 1789, in the House of
Representatives, Madison proposed a bill of
rights. It included the following: "The right of
the people to keep and bear arms shall not be
infringed; a well armed, and well regulated
militia being the best security of a free
country: but no person religiously scrupulous of
bearing arms shall be compelled to render
military service in person." 4 Documentary
History of the First Federal Congress 10
(Bickford & Veit eds. 1986). This has three
parts: the guarantee of a substantive right of
the people to keep and to bear arms, a
philosophical declaration about the militia in a
"free country," and a prohibition on personal
conscription of those
opposed to bearing arms on religious grounds.
Senator William Grayson wrote that Madison’s
amendments "altogether respected personal
liberty." 3 Patrick Henry 391 (1951).
Linguistically, the term "bear arms" was not
limited to militia service. Madison had
sponsored a bill in the Virginia legislature
under which a person who hunted deer illegally
could not "bear a gun out of his inclosed ground,
unless whilst performing military duty. . . ." 2
Jefferson, Papers 443-44 (Boyd ed. 1951).
Thus, one may "bear" arms while not "performing
Halbrook provides one quote. Rowland,
Appendix A, provides 300 to the contrary taken from official documents.
Noah Webster, a prominent
federalist, defined "bear" as "to carry" or "to
wear. . . as, to bear a sword, a badge, a name;
to bear arms in a coat." Webster, An American
Dictionary of the English Language (1828).
"To bear arms in a coat" typically meant to
carry a pistol in a coat for self defense.
This is one of Halbrook's favorite quotes. Halbrook really believes this stuff. It has been pointed out many times that to "bear arms in a coat" means to bear them in a coat-of-arms which was an insignia of heraldry, usually conferred by the king, that a knight wore on his shield or tabard. See full quote at
.../noahweb.html. Halbrook must be thinking of what Mae West is reputed to have once said to W. C. Fields: "Are you glad to see me or is that just a pistol in your pocket?" This is how the armed populace fantasy is fabricated. Halbrook did not have to worry that
Judge Garwood in his Emerson obiter dictum would be
concerned not to make a laughing stock out of himself.
Ten days after introduction of the bill of
rights, Tench Coxe, a well known Federalist,
explained what became the Second Amendment as
follows: "As civil rulers, not having their duty
to the people duly before them, may attempt to
tyrannize, and as the military forces which must
be occasionally raised to defend our country,
pervert their power to the injury of their
fellow-citizens, the people are confirmed by the
next article in their right to keep and bear
their private arms." Federal Gazette,
June 18, 1789, at 2.
And to have them registered under the militia acts so they could be called out to enforce the laws of the Union. Private arms in the eighteenth century were a community resource.
Madison: "A government leaving it to a man to do his duty or not, as he pleases, would be a new species of government, or rather no government at all."
Appendix I, page A-113.
The libertarian fantasy does not get any endorsements from Framers of the Constitution.
Madison endorsed Coxe’s
analysis, writing him that ratification of the
amendments "will however be greatly favored by
explanatory strictures of a healing tendency,
and is therefore already indebted to the
co-operation of your pen." 12 Madison
Papers 239-40, 257 (1978). Coxe’s
explanation was widely reprinted without
E.g., New York Packet,
June 23, 1789, at 2; Massachusetts
Centinel, July 4, 1789, at 1.
Samuel Nasson, who had served in the
Massachusetts ratification convention, wrote
Rep. George Thatcher about the amendments:
A Bill of rights well secured that we the people
may know how far we may Proceed in Every
Department. Then there will be no Dispute
Between the people and rulers in that may be
secured the right to keep arms for Common and
Extraordinary Occasions such as to secure
ourselves against the wild Beast and also to
amuse us by fowling and for our Defence against
a Common Enemy. You know to learn the Use of
arms is all that can Save us from a foreign foe
that may attempt to subdue us, for if we keep up
the Use of arms and become well acquainted with
them, we Shall always be able to look them in
the face that arise up against us.
Creating the Bill of Rights 260-6 1 (H.
Veit ed. 1991). No surviving writing of the
period disputes the assumption that the right to
keep arms was guaranteed for all persons (other
than criminals) and for all lawful purposes.
Rep. Roger Sherman drafted amendments which
declared that "the militia shall be under the
government of the laws of the respective states,
when not in the actual service of the United
States," and included an anti-conscription
clause. The Complete Bill of Rights
169-70 (Cogan ed. 1997). Individual arms
possession was not mentioned as a right in the
Sherman draft, but it would be a mistake to
infer that he did not deem the right
fundamental. In later debate he "conceived it to
be the privilege of every citizen, and one of
his most essential rights, to bear arms, and to
resist every attack upon his liberty or
property, by whomsoever made. The particular
states, like private citizens, have a right to
be armed, and to defend, by force of arms, their
rights, when invaded." 14 Documentary History
of the First Federal Congress 93 (1995). In
any event, contrary to the wishful thinking of
amici, Congress proposed the Second Amendment,
not Sherman’s proposal which sought to guarantee
State power over the militia.
On July 28, 1789, a House select committee
reported Madison’s proposals as amended by the
committee. The arms guarantee was reworded: "A
well regulated militia, composed of the body of
the people, being the best security of a free
state, the right of the people to keep and bear
arms shall not be infringed; but no person
religiously scrupulqus shall be compelled to
bear arms." 4 Documentary History of the
First Federal Congress 28 (1986). This
switched the positions of the militia
declaration and the arms guarantee, inserted the
common definition of the militia as "composed of
the body of the people," and changed "free
country" to "free state" (which referred to the
body politic, not necessarily to a state
Rep. William L. Smith wrote that "there appears
to be a disposition in our house to agree to
some [amendments], which will more effectually
secure private rights, without affecting the
structure of the Gov[ernmen]t." Creating the
Bill of Rights at 272-73. One writer noted
that the committee version reflected "every one
of the intended alterations" proposed by Samuel
Adams in the Massachusetts convention, including
his proposal "that the said constitution be
never construed to authorize congress. . . to
prevent the people of the United States, who are
peaceable citizens, from keeping their own arms
... . ." Independent Gazetteer, Aug. 20,
1789, at 2.
In August, the House debated what became the
Second Amendment. The sparse debates reflect the
concern that an armed populace as militia
contributes to a free state by reducing the need
for a standing army, and the objection that
Congress might rely
on the conscientious objector clause as a ruse
to prevent persons Congress claimed to be
religiously scrupulous from bearing arms in the
militia. Elbridge Gerry stated that "this
declaration of rights . . . is intended to
secure the people against the maladministration
of the Government," but the objector clause
"would give an opportunity to the people in
power to destroy the constitution itself. They
can declare who are those religiously
scrupulous, and prevent them from bearing arms."
1 Annals of Congress 749-50 (1834).
Rep. Thomas Scott objected that the exemption
for religiously scrupulous persons would mean
that "a militia can never be depended upon. This
would lead to the violation of another article
in the constitution, which secures to the people
the right of keeping arms, and in this case
recourse must be had to a standing army." Id. at
766-67. The right to have arms was supportive
of a duty to serve in a well regulated militia,
which the exemption would undermine.
The Senate considered the amendments in
September. It trimmed the guarantee to read: "A
well regulated militia, being the best security
of a free state, the right of the people to keep
and bear arms, shall not be infringed."
Journal of the First Session of the
Senate 71(1820). It rejected a proposal to
add "for the common defence" after "bear arms,"
reflecting that the right could be exercised for
all lawful purposes. Finally, the Senate
recharacterized the militia from being "the best
security of a free state" to
being "necessary to the security of a free
state." The Senate then passed its final version,
id. at 77, to which the House assented, and this
version would be ratified by the States and
become the Second Amendment.
Separately considering amendments to change the
structure of the government, the Senate rejected
the Virginia-North Carolina convention proposal
(see supra) "that each state,
respectively, shall have the power to provide
for organizing, arming, and disciplining its own
militia, whensoever Congress shall omit or
neglect to provide for the same. . . ." Id. at
251. This demonstrates that the "right" of "the
people" to keep and bear arms, which the Senate
approved, was not the same as the "power" of the
"state" to arm and provide for militias, which
the Senate rejected. It is untenable to argue,
as does the government here, that the rejected
provision embodies the true meaning of the
provision that prevailed.
The evidence is overwhelming that the Second
Amendment was intended to guarantee individual
rights. For a comprehensive study of the
framers’ intent, see S. Halbrook, "The Right of
the People or the Power of the State: Bearing
Arms, Arming Militias, and the Second
Amendment," 26 Valparasio University Law
Review 131 (Fall 1991). If anyone in the
period of 1787-1791 thought the Second
Amendment guaranteed a "collective" State power
to maintain a select militia or a "right"
belonging only to militiamen when in actual
service, and not an individual right of all "the
people," it remains a closely-guarded secret. No
known writing from that period asserts such a
IV. POST RATIFICATION INTERPRETATIONS
The Second Amendment was viewed as protecting a
personal right to keep arms in the antebellum
commentaries and in the period of
Reconstruction, which instituted great
constitutional developments. The following sets
forth a sampling of material from these periods.
St. George Tucker, the first major commentator
on the Bill of Rights, explained the Second
Amendment as follows: "The right of self-defense
is the first law of nature . . . Wherever. . .
the right of the people to
keep and bear arms is, under any color or
pretext whatsoever, prohibited, liberty, if not
already annihilated, is on the brink of
destruction." 1 Tucker, Blackstone’s
Commentaries (Appendix) 300 (1803).
Justice Joseph Story declared: "The right of the
citizens to keep and bear arms has justly been
considered, as the palladium of the liberties of
the republic; since it offers a strong moral
check against usurpation and arbitrary power of
the rulers; and will generally, even if these
are successful in the first instance, enable the
people to resist and triumph over them." 2 J.
Story, Commentaries on the Constitution
ed. 1891). Story also wrote: "One of the
ordinary modes, by which tyrants accomplish
their purpose without resistance is, by
disarming the people, and making it an offense
to keep arms. . . ." J. Story, A Familiar
Exposition of the Constitution of the United
States 264 (1893). Unlike amici here,
Justice Story obviously believed that the Second
Amendment prohibited "disarming the people," not
just the state militia, and prohibited "making
it an offense to keep arms."
Scott v. Sandford, 60 U.S. (19 How.) 393,
417 (1857) held that African Americans were not
citizens, for if they were, they would have the
rights to "full liberty of speech" and "to keep
and carry arms wherever they went." The
Fourteenth Amendment would abrogate this
decision. Senator Jacob Howard, introducing the
Fourteenth Amendment in 1866, explained that its
purpose was to protect "personal rights" such as
"the right to keep and bear arms." CONG. GLOBE,
39th Cong., 1st Sess., 2765 (May 23, 1866).
Senator Charles Sumner presented a petition from
a convention of freed blacks of South Carolina
urging Congress to take action to protect their
lives, liberty, and personal rights. In addition
to suffrage, "They ask also that they should
have the constitutional protection in keeping
arms, in holding public assemblies, and in
complete liberty of speech and of the press."
CONG. GLOBE, 39th Cong., 1st Sess. 337 (Jan. 22,
Congress recognized in the Freedmen’s Bureau
Act, passed by over two-thirds of the same
Congress which proposed the Fourteenth
Amendment, the right to "full and equal benefit
of all laws and proceedings concerning personal
liberty, personal security, and. . . estate,
real and personal, including the constitutional
right to bear arms." 14 Stat. 176-77 (1866).
This recalls Samuel Adams’ appeal in 1768
(quoted above) to Blackstone’s concepts of
"personal liberty" and "personal security" in
support of "the right of having and using arms
for self-preservation and defense." Adams,
supra, part II. The Act and
the constitutional amendment were
intended to nullify the Southern black codes,
under which state militias raided freedmen
cabins to seize firearms. See Halbrook,
"Personal Security, Personal Liberty, and ‘the
Constitutional Right to Bear Arms’: Visions of
the Framers of the Fourteenth Amendment," 5
Seton Hall Constitutional Law Journal 341
Members of the Reconstruction Congress would
have been aghast at the argument that the Second
Amendment protected State militias and not
private individuals. The Congress abolished the
Southern state militias for two years because,
according to Senator Henry Wilson, the state
militias "go up and down the country taking arms
away from men who own arms, and committing
outrages of various kinds." CONG. GLOBE, 39th
Cong., 2d Sess., 1849 (Feb. 19, 1867). When the
Ku Klux Klan took the place of the militias,
freedmen and Republicans in the South resisted
terrorism with arms. On this era, see S.
Halbrook, Freedmen, the Fourteenth Amendment,
and the Right to Bear Arms, supra. For
examples of resistance to Klar attacks, see
id. at 126-28.
In sum, the framers of both the Second and
Fourteenth Amendments intended to protect the
individual right to keep arms. The law at issue
violates this right.
The Court should affirm the judgment of the
district court. Respectfully submitted,
STEPHEN P. HALBROOK
Attorney for Ainicus Curiae Texas Justice
1. Halbrook, Freedmen, the Fourteenth
Amendment, and the Right to Bear Arms,
1866-1876 (Westport, Conn.: Praeger
Publishers, 1998); That Every Man Be Armed:
The Evolution of a Constitutional Right
(Albuquerque: University of New Mexico Press,
1984, reprinted Oakland, Ca.: Independent
Institute, 1994); A Right to Bear Arms: State
and Federal Bills of Rights and
Constitutional Guarantees (Westport, Conn.:
Greenwood Press, 1989).
2. See Art. I, § 1 ("all legislative
Powers herein granted shall be vested in a
Congress of the United States"); Art. I, § 3
("the Senate shall have the sole Power to try
all Impeachments"); Art. II, § 2 (the
President "shall have Power" to grant pardons,
to make treaties, and to fill up vacancies).
3. Madison’s original proposals for a bill of
rights included provisions other than the Second
Amendment with explanatory clauses. It declared
that a free press, "as one of the great bulwarks
of liberty," must be inviolable, and that "the
trial by jury as one of the best securities to
the rights of the people, ought to remain
inviolate." 4 Documentary History of the
First Federal Congress 10-11 (1986). Had
they passed in those forms, it would not be
viable to argue that a free press is no longer a
great bulwark of liberty or that jury trial is
no longer one of the best securities of the
rights of the people, and hence the substantive
guarantee no longer exists. Nor is it reasonable
to assert that a well regulated militia is no
longer necessary to a free state’s security, and
hence that the people no longer have a right to
4. Muscarello v. United States, 141
L.Ed.2d 111, 125 (1998) (Ginsberg, J.,
5. Without citing a single reference to the
framing of this provision or the British
violations that prompted its passage,
Commonwealth v. Davis, 343 N.E.2d 847,
848-49 (Mass. 1976) held that, under the older
militia laws, "a law forbidding the keeping by
individuals of arms that were used in the
militia service" might have violated this
provision, but such a law would no longer
violate the guarantee because the militia "is
now equipped and supported by public funds."
This does not square with the constitutional
"right" of "the people," without any reference
to the militia, to "keep" arms.
Surely a most familiar meaning [of the term
"carry" a firearm] is, as the Constitution’s
Second Amendment ("keep and bear Arms")
(emphasis added) and Black’s Law Dictionary, at
214, indicate: "wear, bear, or carry. . . upon
the person or in the clothing or in a pocket,
for the purpose. . . of being armed and ready
for offensive or defensive action in a case of
conflict with another person."
6. Quakers were opposed to bearing arms for
military purposes or for self defense. J.
Richmond, "Quaker Customs & Beliefs,"
See J. Selsam, The Penn3ylvania
Constitution of 1776 (1936), 207 n. 6
(Quaker disapproved of wearing sword for
7. Coxe would play an instrumental role in the
first four administrations of the early
republic, including as head of federal militia
procurement. See Halbrook & Kopel, "Tench
Coxe and the Right to Keep and Bear Arms,
1787-1823," 7 William & Mary Bill of Rights
Journal, Issue 2, 347 (Feb. 1999).
8. Noah Webster defined "free" in part as "not
subject to the arbitrary will of a sovereign or
lord; as a free state, nation or people." The
term "state" means "a political society, or body
politic." "State’ has sometimes more
immediate reference to the government, sometimes
to the people or community." Webster, An
American Dictionary, supra.
9. 0n the national prominence of Tucker,
see D. Kopel, "The Second Amendment in
the Nineteenth Century," B.Y.U.L. Rev.,
No. 4, 1359, 1370-79 (1998).
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