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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 at .../emeramic.html

The District Court's Opinion Memorandum is at http://www.txnd.uscourts.gov/PDFs/emerson.pdf


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:

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:

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, 1 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

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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 militia.

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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 against whom

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a judicial restraining order without findings has been entered, infringes on this right.

ARGUMENT

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 Amendment.

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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. . . abridging

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

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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). 2 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

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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

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"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

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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 powers.

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. 3

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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, as follows:

In an article he signed "E.A.," Samuel Adams quoted from Sir William Blackstone to demonstrate the rights of the colonists as Englishmen:

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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,

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1774,at4.

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 Second

Amendment was prompted in part by the British policy of confiscating the firearms of

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individuals.

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. 4 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." 5 The right of "the people" to "keep" arms clearly includes possession in the home, and this right was considered

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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

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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:

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

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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.

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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 Amendment.

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

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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 the legislature.

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

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opposed to bearing arms on religious grounds. 6 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 military duty."


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, might

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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 contradiction. 7 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:

Creating the Bill of Rights 260-6 1 (H. Veit ed. 1991). No surviving writing of the

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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

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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 government). 8

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

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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

Page 23

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

Page 24

people," it remains a closely-guarded secret. No known writing from that period asserts such a proposition.

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). 9

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 646 (5th

Page 25

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, 1866).

Page 26

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 (Spring 1995).

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 this new

Page 27

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.

CONCLUSION

The Court should affirm the judgment of the district court. Respectfully submitted,

STEPHEN P. HALBROOK
Attorney for Ainicus Curiae Texas Justice Foundation


NOTES

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). text@note1

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). text@note2

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 arms. text@note3

4. Muscarello v. United States, 141 L.Ed.2d 111, 125 (1998) (Ginsberg, J., dissenting) notes:

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. text@note5

6. Quakers were opposed to bearing arms for military purposes or for self defense. J. Richmond, "Quaker Customs & Beliefs," http://www.rootsweb.com/~quakers/quakinfo.htm. See J. Selsam, The Penn3ylvania Constitution of 1776 (1936), 207 n. 6 (Quaker disapproved of wearing sword for protection). text@note6

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). text@note7

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. text@note8

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). text@note9 >


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