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The Texas State Rifle Association as amicus curiae
US v. Timothy Joe Emerson
US Court of Appeals, Fifth Circuit
Filed December 17, 1999

The Potowmack Institute's amicus brief and other briefs in this case are provided at .../emeramic.html

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


The Texas State Rifle Association covers much territory in its brief but like the other defense briefs in this case it does not address the fundamental issue raised in the Potowmack Institute brief: Are gun owners citizens under law and government or are they individual sovereigns, laws unto themselves, in the State of Nature which is the state of anarchy. Is the Constitution of the United States a frame of government with "just powers," which would have to include the "just powers" to maintain internal sovereignty (the sovereignty of public authority under the rule of law), or is it a treaty among sovereign individuals who by definition do not consent to be governed and do not give "just powers" to government.

The great concern of the Texas Rifle Association brief is the extension of federal authority in areas of firearms regulation that it assumes the Second and Tenth Amendments reserve to the states. The states, it appears in this brief, can regulate all they want. The fear is that federal laws addressed at gun control will create a federal criminal code outside of the bounds of enumerated powers. This brief ends up with the same political cynicism described in the Potowmack Institute amicus: What gun control opponents want is a "clear, constitutional prohibition on the federal government confiscating privately owned firearms." This is an agenda solely related to contemporary gun control politics. It has no justification in the Second Amendment or historical practices. There is no mention in this brief of a personal right that would be entitled to Fourteenth Amendment protection enforced by the federal judiciary against infringement, even to the point of confiscation, by the states. Fourteenth Amendment protection is what many gun rights advocates want and its absence here is in conflict with the agenda of other gun rights advocates. If the states can regulate all they want and the federal criminal code is an unconstitutional extension of federal powers, where does that leave national firearms policy enacted by Congress?

Where it leaves national policy is a recognition that the Second Amendment and the early militia acts were about military organization not civilian regulation or personal rights. The Federalists, led by James Madison, were concerned to create a sovereign power in the national government that was above the states. That was considered necessary to prevent the internal discord and disintegration that Madison identified as being the weakness of historical confederations. The militias were pre-existing institutions that the new supra-government had to include in its scheme. The controversy was over how the control over the militia was to be shared between the states and the Federal Government which would also maintain a regular army. The regular army in the minds of many would be a "separate order of the state" (District Court Opinion, p. 12) more like the regular army of the British system. On the state level militia duty was conscript duty. Conscripts don't have the kind of personal right sought today. The Constitution created a National Militia to be drawn out of the state militias and gave the President as Commander-in-Chief authority over both and the right to call out the National Militia for legally authorized purposes. However, the militia system was controversial on a different, more general level: The Federalists had no use for the conscript militia system, gave no serious support to its viability and wanted to see it die out as it did by the 1830s. The Second Amendment and the militia acts can still have relevance today.

Gun rights advocates often observe that US v. Miller (1939) has uncomfortable implications for gun control advocates. It could be read as granting a right to own formidable military weapons that "show a reasonable relationship to a well-regulated militia." What should be really uncomfortable for gun rights advocates is that militia law has still other implications related to a personal right. If, instead of schemes of civilian regulation of guns in school yards and domestic violence, the Congress should resurrect the concepts of militia law as expressed in the Militia Act of 1792, define all the guns in the society to be a national resource, and order the states to maintained an inventory subject to federal authority when needed, there would be a wholly different and constitutionally more acceptable approach to a national firearms policy. The purpose would be completely consistent with the Second Amendment and the early militia acts. The personal right to maintain a balance of power between an armed populace and any and all government would have to give way to the requirements of internal sovereignty and the obligations of militia duty. The policy would have the collateral benefit of requiring registration of ownership including reporting of private sales which if effectively enforced would shut down the illegal traffic and thereby empower state and local jurisdictions to enforce all the rules and regulations that the Texas State Rifle Association seems to think are a state and local preserve. State and local jurisdications would then be in positions to make laws that make sense--rather than the "arcane and incomprehensible"--for their particular needs. The libertarian fantasy could relax that there would be no tyrannically encroaching centralized federal authority through the federal criminal code except as it related to militia requirements.


INTEREST OF THE AMICUS

Texas State Rifle Association ("TSRA") is a not-for-profit organization based in Dallas, Texas, dedicated to the promotion of firearmsí marksmanship and safety. It is recognized by the Civilian Marksmanship Program, a corporation created by Congress for the purpose of promoting civilian marksmanship skills. Its current paid membership exceeds 30,000.

TSRAís members come from all walks of life and represent interests across the political spectrum. Many of its members are hunters and conservationists. Many of its members participate in Civilian Marksmanship programs and competitions. Some members are merely interested in preserving the American tradition of responsible, law-abiding firearmsí ownership. The district courtís decision below recognized that TSRAís members have a right, recognized by the framers of the Constitution and successive state and federal governments, to possess firearms free from infringement by the federal government. TSRA agrees with this conclusion and is interested in this case.

BACKGROUND AND SUMMARY

Dr. Timothy Emerson and his wife, Sasha, are involved in a contested divorce proceeding. During the course of that proceeding, Sasha requested and received a standard restraining order. She thereafter alleged that Dr. Emerson violated that order by displaying a pistol while Sasha was visiting his office.

Reading the governmentís brief, one is meant to develop the impression that Dr. Emerson is a bad person and that the conduct alleged— and as yet unproved— ought to be against the law. No doubt, contested divorce proceedings rarely lack allegations and angst. No doubt, assault is— and long has been— a crime in Texas where the soon-to-be-divorced Emersons reside. Thus, if Dr. Emerson in fact threatened his estranged wife or her new boyfriend, the Texas family and criminal courts are fully capable of addressing the issue.

The Governmentís position in this case reaches far beyond the Emersonís troubled marriage. Indeed, the offense charged in this case is not "assault." Rather, it is merely possessing a firearm while subject to a form restraining order.. Dr. Emerson (or any other divorce litigant subject to such an order) would just as surely become a federal felon for keeping his shotgun locked up in his home, whether that was the intended effect of the order or not.

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The real question, which the government hopes to avoid with its attack on Dr. Emersonís character, is where exactly does the federal government fit in this picture? By the governmentís argument, it has the power to silently engraft onto every state divorce injunction a prohibition on the private possession of firearms— peaceable or not— on pain of imprisonment for ten years.

The Second Amendment is both a particularized expression of the Tenth Amendmentís restriction on federal legislation in areas reserved to the states under the Constitution and a profound commitment to respect the right of the law-abiding citizens to possess arms.

Two questions arise where federal regulation infringes on the right to possess arms. First, is the federal law regulating commerce? If the law is not in fact a regulation of commerce, it is obviously beyond Congressí power under the Commerce Clause. But, even if the law can be viewed as a legitimate exercise of the commerce power, it still might infringe specific prohibitions of the Constitution, including the Second Amendment.

Where Congress infringes on the Second Amendment, the infringement may be reviewed in the manner applicable to regulations affecting speech. If the regulation is in fact intended to dispossess law-abiding citizens of their right to possess a firearm, it should be subjected to strict scrutiny. An important and related question, where the regulation is within federal authority to regulate commerce and is

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not intended merely as an infringement on the right to possess arms, is whether the federal measure supports or conflicts with state policy? If state policy would permit the possession of a firearm, then the enactment raises both Second and Tenth Amendment concerns that generally will require federal law to yield.

ARGUMENT

I. THE FEDERAL GOVERNMENT REMAINS A GOVERNMENT OF LIMITED, ENUMERATED POWERS

One of the principal objections to the ratification of the Constitution was that it created and empowered a national government that might grow to resemble the unbridled authority that led to the revolution. Proponents of the Constitution assured that the federal government would exercise only those powers enumerated in Article I and, accordingly, that no specific Bill of Rights would be necessary. The Federalist No. 47, p. 301 and No. 84, pp. 5 13-15 (L. Rossiter ed. 1961). Nonetheless, in order to secure ratification over the protests of James Madison, a Bill of Rights was promised. R. Goldwin, FROM PARCHMENT TO POWER 75-153 (1997). And, in 1789, ten of twelve proposed amendments were ratified. The First Amendment through the Eighth dealt with liberties that had been abused or denied by the British Crown. The Ninth and Tenth confirmed the earlier assurances that the Constitution would not vest an unlimited power in the federal government.

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The governmentís position in this case directly implicates the Second and Tenth Amendments.

The Constitution gives Congress the power to regulate commerce. U.S. Const. art. I. This power cannot be read so expansively as to invalidate the Tenth Amendment or to authorize a general, federal criminal code. E.g., United States v. Lopez, 514 U.S. 549 (1995). Unlike its power to tax and spend, which is subject only to the "general welfare" limitation, the Commerce Clause empowers the Congress to "regulate commerce with foreign nations, and among the several states, and with Indian Tribes." U.S. Const. art. I, § 8 cl.3. Nothing more. Nothing less.

The limits of the commerce power, as confirmed by the Tenth Amendment, do not exist "for the benefit of the states or state governments." New York v. United States, 505 U.S. 144, 181 (1992). "To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals." Id. Indeed, if Congress were permitted, under the guise of the regulation of commerce, to exercise a de facto police power, there would be no end to the expansion of legislation; the states would be mere federal appendages; and the citizens would be denied the privileges and immunities of state citizenship. As Justice Holmes once put

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it: "the health and safety of the people of a state are primarily for the state to guard and protect." Lochner v. New York, 198 U.S. 45, 73 (1905) (Holmes, J., dissenting).

Only where the federal government validly acts pursuant to its commerce or other enumerated power, may it encroach on the authority reserved to the states to establish policy or law in these areas. This statute, 18 U.S.C. § 922(g)(8), rests uncomfortably at the intersection of family law and firearms possession.

Of course, there is no constitutional mandate permitting Congress to delve into family or matrimonial law. Neither should one be created. Similarly, the general power to prohibit or permit possession of firearms was left to the states in the Constitution. 1 See, e.g., United States v. Rybar, 103 F.3d 273 (3d Cir. 1996) (Alito, J., dissenting). Indeed, the only reference to possession of firearms in the Constitution is the Second Amendmentís explicit prohibition on federal regulation.

To be sure, recent Congresses have shown less regard to the Constitutionís assignment of powers than one might have hoped. E.g., Printz v. United States, 521 U.S. 898 (1997); Lopez, 514 U.S. at 567. But, as this Court observed in its Lopez decision, the history of federal firearms regulation belies the Governmentís recent

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claim to an unlimited, commerce-based power. From ratification until the 1980ís, firearms policy was left to the states except insofar as firearms themselves were used in commerce or were transferred on a commercial level. Meanwhile, the states exercised their authority, in keeping with their own respective Constitutions, to regulate the keeping and bearing of arms, pursuant to the police power. E.g., Curson v. Texas, 313 S.W.2d 538 (Tex. Crim. App. 1958).

Federal regulation of civilian firearms possession was first introduced in 1934. Notably, that Act did not effect a general prohibition on firearm ownership, but instead, pursuant to the taxing power, imposed a tax on a narrow category of firearms. Next, in 1938, Congress required those engaged in the commercial sale of firearms and using channels of interstate and foreign commerce to submit to licensing and to keep records of their transactions. Additionally, it forbade felons and fugitives from owning a gun. Of course, felons and fugitives present a clear and present danger to commerce, among other things, and are universally forbidden from possessing arms by state law. Even so, the Supreme Court has been cautious in its reading of the restrictions on former felons, in view of Tenth Amendment restrictions on the exercise of commerce power. United States v. Bass, 404 U.S. 336, 344 (1971) (reading Act to require the prohibited possession to have a commerce nexus).

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In 1968, Congress required all those engaged in commercial transactions in firearms to be licensed and to keep records. It also prohibited individuals from buying and selling firearms through the channels of interstate commerce.

It was not until the mid-1980ís that Congress, for the first time, prohibited the possession, without more, of a firearm by a citizen without any attendant connection to interstate commerce. Even then, the law reached only to machine guns, which some urge bear a unique relation to the interstate drug trafficking business. See United States v. Kirk, 105 F.3d 997, 1001 (5th Cir. 1997) (en banc) (Op. of Higginbotham, J.). Even then, this prohibition was itself limited and did not effect a complete ban, as Judge Higginbothamís Kirk opinion pointed out, because only machine guns manufactured or registered after 1986 were prohibited. All such firearms registered before that date still may be possessed by law-abiding citizens.

It was not until 1994, that Congress first passed a law flatly prohibiting the possession of a firearm by a law-abiding citizen. This law created a new classification of "firearm" and generally outlawed any semi-automatic firearm that has two or more cosmetic features that make it appear like fully-automatic military arms.

But the historical reluctance of Congress to delve into the possession of arms by individual citizens reaches far beyond the period canvassed in the Lopez decision. The Second Amendment reflects a basic rejection of the national government

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exercising this authority over the individual or the states. E.g., Presser v. Illinois, 1166 U.S. 252 (1886) (Second Amendment is "a limitation only upon the power of Congress and the national government, and not upon the states"). Every American school child knows that the revolution that gave birth to this Constitution began on an April afternoon in rural Massachusetts. Few will remember why the confrontation took place: The British Governor had concluded that the inhabitants of Concord were too heavily armed. See letter of F. Smith, British Officer, to Governor Gage, April 22, 1775. 2 He dispatched a force to collect and destroy the colonistsí firearms and

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munitions. On arriving at Lexington, the force was confronted by "people drawn up in military order." After that confrontation, the force proceeded to Concord and destroyed what arms could be found. The farmers and other residents then shot and killed many of the force on its return march to Boston. It is difficult to believe that these same citizens would have endorsed a Constitution that would have authorized the new national government to do precisely the same thing that the British were attempting.


Does the Texas State Rifle Association really believe that the Government of the United States when "confronted by people drawn up in military order" against it would behave any differently from the British in 1775? The Government's obligation is to those citizens who have pledged their allegiance to the flag and to the republic for which it stands not to the "armed citizen guerrillas" who would outflank it. The Constitution does define treason as the waging of war--bearing of arms--against the United States. The Federal Government would have even greater justification because citizens of the United States, unlike the colonists who made the American Revolution against British authority, are represented in this government and have legal mechanisms to alter it.

We have now arrived at a point where federal firearms regulations are so arcane and incomprehensible that even those responsible for enforcing them find them difficult to comprehend. The governmentís own brief in this case, for example, wrongly decries two of Mr. Emersonís rifles, a Poly-Technologies M14-S and an SKS rifle, as semi-automatic "assault rifles." While both have military origins, neither

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actually fits the definition of an "assault rifle" under federal law. See 18 U.S.C. § 921. 3

Nonetheless, it is ironic that the government should pursue the point. Its attempt to characterize Dr. Emersonís arms as suitable for military purposes proves too much. These are precisely the arms protected by the Second Amendmentís prohibition on federal legislation. United States v. Miller, 307 U.S. 174, 178 (1939). The oft-cited "Beretta 9mm" is in fact the current service sidearm issued to U.S. troops.

This is not to suggest that congress is without power to pass laws affecting firearms. Obviously, Congress has power, for example, to patent firearm designs and to prohibit others from copying the design. Similarly, Congress has the power to regulate commerce as such. But where Congress exercises its commerce power in an area that is subject to a specific constitutional prohibition, like the Second Amendment, its action must be checked, if not by the Congress itself, then by the judicial branch, in order to give effect to our "dual system of government." NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937); cf. Youngstown Sheet & Tube

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Co. v. Sawyer, 343 U.S. 579 (1952) (confronting constitutional assignment of power between the President and Congress). 4

This Act does not only affect firearmsí policy, it also affects domestic relations law. While there is no specific constitutional prohibition on federal lawmaking in this area, it is impossible to deny that this is yet another example of a subject matter reserved to the states under the Tenth Amendment.

Again, until quite recently, Congress had exercised restraint in this area. This too has begun to change. E.g., Child Support Recovery Act of 1992, 18 U.S.C. § 228. As expressions of the commerce power, these Acts are of dubious validity. While two federal circuits have upheld the Child Support Recovery Act against Tenth Amendment challenges, both stressed that the Actís limited operation, reasoning that

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it merely fortifies enforcement of state court orders and state policy. E.g., United States v. Hampshire, 95 F.3d 999, 1004 (10th Cir. 1996); United States v. Sage, 92 F.3d 101, 107 (2d Cir. 1996).

One might debate whether the efforts of the federal Congress— and in turn the federal judiciary— to enforce state child support orders are in fact directed at "activities that have a substantial relation to or substantially affect interstate commerce," as they must to survive Tenth Amendment scrutiny. Lopez, 115 S. Ct. at 1629. This enactment, however, is even further removed from the commercial realm than the child support Recovery Act. Unlike support orders, which at least involve a transfer of funds that might be used in commerce, this statute has no nexus to commercial activity at all. Moreover, it does not simply aid the enforcement of existing state policy— it supplants it.

Texas has created a comprehensive system of family courts and has empowered them to enter injunctions and to enforce them by contempt. Tex. Govít Code Ann. § 24.601; Boney v. Boney, 458 S.W.2d 907 (Tex. 1970). It has also adopted policies, including a comprehensive Penal Code, concerning who may own a firearm, what type of arms may be had, and when that right may be withdrawn, all in accordance with its police power and the Second and Tenth Amendments. Tex. Const. art. I, § 23; see also Tex. Penal Code Ann. §§ 46.04 (prohibiting felons from possessing firearms) and 46.05 (prohibited weapons).
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If Congress has the power to overwrite state court divorce orders in this manner pursuant to its "commerce" power, it is difficult to imagine what domestic relations issue could not be regulated. In fact, the argument that the amount of child support should be increased or that custody should be granted or denied to a parent has a greater claim to a commerce nexus than 18 U.S.C. § 922(g)(8) does. A congressman, armed (or saddled) with the power to enact family law, would find it tempting indeed to cast his vote in favor of whatever popular family law issue prevails at the moment. Of course, each such law would ultimately require judicial enforcement to have any practical effect.

II. THE DISTRICT COURT CORRECTLY DETERMINED THAT THE SECOND AMENDMENT PROTECTS THE INDIVIDUALíS RIGHT TO PEACEABLY POSSESS A FIREARM FROM INFRINGEMENT BY THE FEDERAL GOVERNMENT

The government lambastes the district court for ignoring 100 years of "law." Br. at 11. It then goes on to suggest that the Second Amendment is simply historical surplusage, citing a number of decisions of the circuits and carefully ignoring Supreme Court pronouncements to the contrary.

In fact, the district court did not ignore the law. It upheld it! The Constitution, as it was written and intended, is the law. Until it is amended, "history," as it is selectively recounted by the Government in its brief, it not a substitute. In fact, if the

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process of judicial review is to retain its well-deserved legitimacy, 5 it simply cannot "recognize" fashionable rights emanating from the penumbra and ignore those written into its text. Even the most strident anti-gun scholars now recognize that the Constitution was intended to preserve the individual right of a citizen, subject to state regulation, to possess (i.e. "to keep") arms. E.g., Laurence Tribe, N.Y. Times 34, p. 3, May 30, 1999 (noting it "has become impossible to deny" that Second Amendment protection individual right); David Kopel, It Isnít About Duck Hunting. The British Origins of the Right to Bear Arms, 93 MICH. L. REV. 1335 (1995).

Contrary to the Governmentís suggestion, the framers of the Constitution intended to preserve the right of the citizenry to arm itself. It is difficult to imagine how the language of the Second Amendmentís prohibition on federal law that infringes on the peopleís right to keep and bear arms, creates confusion. This Amendment was intended as a check on the power of federal government just as the First, Fourth, Ninth, Tenth, Fifteenth, Nineteenth, Twenty-Fourth or Twenty-Fifth Amendments were intended to operate as affirmative restrictions on government power where they refer to the "people" or the "citizens."

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The framers believed, based on their experience under British rule, that a free people had the right to govern their own affairs, and to that end enacted a Constitution and a Bill of Rights. They recognized, however, that written checks and balances sometimes were not enough. Thus, it was intended that the citizen have the right to keep and bear arms should it be necessary to resist tyrannical government. 1 Papers of Thomas Jefferson at 344. James Madison believed the same thing. E.g., Federalist No. 46 at 321. Madison, in his Federalist Paper No. 46 at 319 (Heritage Press), commented that "the advantage of being armed, which the Americas possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."


The Federalist Papers were political polemics to encourage ratification of the Constitution. They did not formulating high principles of political theory. Obviously, even in the context of Federalist Paper No. 46, more fully presented here than usual, Madison was describing the militia as an instrument of state government not a personal right be armed outside of any lawful authority. Appendix I.

Even Blackstone observed, a full decade before the American Revolution, that English law recognized the right of persons to possess arms for their "defense" and in order to uphold the "natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of repression." 1 William Blackstone, Commentaries on the Laws of England 139 (Univ. of Chicago ed. 1979). In keeping with this tradition, many of the original state Constitutions— and by now virtually every state Constitution— includes the right as well.


Blackstone Commentaries (1763) were written a full generation before the US Constitution. While articulating many principles of law and justice, they were nevertheless written in praise of and in the context of the British Constitution which operated on very different concepts from the US Constitution. The original state constitutions were written during a revolutionary situation. They were frames of government based on strong legislatures, weak executives, and weak or nonexistent judiciaries. The US Constitution was designed to correct their faults. What is written into the state constitutions now as a right-to-arms deserves further examination as what that right-to-arms means when there is no militia institution where the right is expressed.

See also Stephen Halbrook, The Right to Bear Arms in the First State Bill of Rights: Pennsylvania,

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North Carolina, Vermont and Massachusetts, 10 VT. L. REv. 255 (1985); see also SENATE JUDICIARY COMMITEE, SUBCOMMI1TEE ON THE CONSTITUTION, REPORTING ON THE RIGHT To KEEP AND BEAR ARMS (1982) (reviewing historical evidence supporting conclusion that Second Amendment was intended to protect the right of the American citizen to keep and bear arms).

The district court opinion in this case is in fact the most careful analysis of the issue to date. But the district court is far from alone in its conclusion that the Second Amendment protects the individualís right to keep and bear arms. Decisions of the Supreme Court, including Miller and United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990), appear to recognize that the Second Amendment protects the right of the individual. See also Printz v. United States, 521 U.S. 898, 937 (1997) (Thomas, J., concurring); United States v. Gomez, 81 F.3d 846 (9th Cir. 1996) (Kozinski, J.). Similarly, the great weight of critical scholarship has now come to the same conclusion. Randy Barnett & Don Kates, Under Fire: The New Consensus on the Second Amendment, 45 EMORY L. J. 1139 (1996); William Van Alstyne, The Second Amendment and the Personal Right to Bear Arms, 43 DUKE L. J. 1236 (1994); Stanford Levinson, The Embarrassing Second Amendment, 99 YALE L. J. 637 (1989).


See Potowmack Institute amicus for more on Barnett & Kates and Sanford Levinson.

Where Congress acts solely for the purpose of infringing private, law-abiding firearmsí ownership, the act no less violates the Second Amendment than a law prohibiting speech based on its content would violate the First. Where, on the other

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hand, the national government passes a law of general application pursuant to a recognized power, like the patent laws, there is no de jure violation of the Second Amendment. Of course, there may be circumstances where facially neutral schemes are in fact intended to infringe the right or where a particular application would be invalid, but this too is susceptible to judicial scrutiny. E.g., United States v. OíBrien, 391 U.S. 367 (1968) (addressing content neutral regulations having only incidental effect of restricting speech).

But the Governmentís trot through the circuits actually reveals more than its disdain for the Constitutionís text and the intent of the framers. Unlike this case or this statute, the statutes involved in the cases it cites bore a recognized nexus to interstate commerce or involved violation of tax law passed under the taxing power and did not conflict with state law. 6

Only a handful of earlier decisions attempt a meaningful analysis of Congressí power to regulate firearms as such. Of all of the opinions cited by the government,

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only the Eighth Circuitís recent opinion attempts a detailed study of the issue. United States v. Hale, 978 F.2d 1016 (8th Cir. 1992). While Amicus disagrees with the Eighth Circuitís conclusion in dicta that the Second Amendment does not protect individuals, the Government argues here, the Eighth Circuitís analysis in fact proves the point. The Eighth Circuit concluded that "[t]he purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation of the militia." Id. at 1020.


How does a government regulate an institution that has not been preserved?

The states, and not the federal government, are vested with the power to determine who may own a gun and what kind of gun may be owned in connection with the stateís right to have a militia. Indeed, the other cases cited by the government vividly illustrate the point. Each stresses that the states are empowered under the Second Amendment to regulate firearmsí possession as such. E.g., Hickman v. Block, 81 F.3d 98 (9th Cir. 1996); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1983). None of the cases dealt with a federal initiative to criminalize the mere act of possessing a firearm in a single state where state law authorizes the possession.

Viewing the matter as it relates to the stateís right to control its militia does nothing for the Government here. It is undisputed that Dr. Emerson is an adult citizen of Texas. Texas has constitutionally assured firearms possession by all who might be

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called to military service. The established and historical meaning of "militia" includes all adults. Tex. Govít Code Ann. § 431.081 (listing persons subject to military duty and exempting mentally disabled persons, "vagabonds," "confirmed alcoholics," narcotics addicts, persons convicted of infamous crimes, minors and those discharged dishonorably from military service). See also 10 U.S.C. § 311 (defining militia).

The states are free to enact reasonable regulation in conformity with their own Constitutions and other provisions of the federal Constitution. Indeed, for more than two centuries states, in cooperation with federal taxation regulation of commerce, have extensively regulated in this area. E.g., Tex. Penal Code Ann. § 46.05 (prohibiting possession of a machine gun unless it is registered pursuant to the National Firearms Act). Where, as here, the federal government acts merely to regulate the possession of a firearm, it violates the rights of the states and the individual, who is entitled to the privileges associated with state citizenship. E.g., New York v. United States, 505 U.S. 144, 181 (1992) ("the Constitution divides authority between federal and state governments for the benefit of the individual).

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Since Marbury v. Madison, the role of the courts in the constitutional system of checks and balances has been clear. With the exception of the Third Amendment, which the Government is yet to label a "collective right," the Second Amendment has received very limited, serious consideration. In the meanwhile, there has been an explosion in federal legislation purportedly making a federal felony out of firearm ownership that has been permitted or even encouraged under various state laws for two hundred years. While no one can fault the judiciary for scrupulously observing its obligation to identify those rights that lie within the Constitutionís penumbra, the public awaits a clear answer regarding this right written into its core.

The conclusion that the Second Amendment acts as an actual restriction on federal legislation is not only in keeping with the text and the intention of the framers, who had no particular affinity for an all-powerful centralized government, it is a matter of practical necessity. While a tiny fraction of firearms are used in violent crime, any crime is deplorable. The debate over how best to prevent crime in general, and crime involving a firearm in particular, rages.


Hardly. Debate over firearms policy will begin when the "rabidly antigun" Washington Post prints in full context the ubiquitous passage from Federalist Paper No. 46 (above) and makes an issue of what is the real agenda of people who have to misrepresent the words to make their case.

Those opposed to gun control are

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not proponents of crime. Rather, they are concerned that regulation will be abused in the future in the absence of a clear, constitutional prohibition on the federal government confiscating privately owned firearms.

Thus, a holding confirming that the federal government cannot march onto the village green and seize the residentís guns would facilitate compromise and productive regulation. Until the Second Amendment is recognized and applied, compromise will be impossible, and the irrational, schizophrenic approach to firearmsí regulation will continue.

Respectfully submitted,
David J. Schenck
Robert H. Mow, Jr.
Robert Montserrat
Attorneys for the Texas State Rifle Association.

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Notes

1. It might also be argued that this law attempts yet another step in the slow but gradual creation of a general federal criminal code. Of course, this is yet another area reserved to the states under the Tenth Amendment. text@note1

2. In obedience to your Excellencyís commands I marched on the evening of the 18th instant with the corps of grenadiers and light infantry for Concord, to execute your Excellencyís orders with respect to destroying all ammunition, artillery, tents, etc. collected there, which was affected, having knocked off the trunions of three pieces of iron ordnance, some quantity of flour, some gun powder, and musket balls, with other small articles thrown into the river. . . . On these companies arrival at Lexington, I understand from the report of Major Pitcairn, who was with them, and from many officers, that they found on a green close to the road a body of the country people drawn up in military order, with arms and accoutrements, and, as appeared after, loaded; and that they had posted some men in a dwelling and Meeting house. Our troops advanced toward them, without any intention of injuring them, further than to inquire the reason of their being thus assembled, and, if not satisfactory, to have secured their arms; but they in confusion went off, principally to the left, only one of them fired before he went off, and three of four more jumped over a wall, and fired from behind it among the soldiers; on which the troops returned it, and killed several of them. They likewise fired on the soldiers from the Meeting and dwelling houses.... Rather earlier than this, on the road, a countryman from behind a wall had snapped his piece at Lieutenants Adair and Sutherland, but it flashed and did not go off. After this we saw some in the woods, but marched on to Concord without anything further happening. While at one of the bridges they marched down, with a very considerable body, on the light infantry posted there. On their coming on which an action ensued, and some few were killed and wounded. In this affair, it appears that after the bridge was quitted, they scalped and otherwise ill-treated one or two of the men who were either killed or severely wounded.

On our leaving Concord to return to Boston, they began to fire on us from behind the walls, ditches, trees and etc., which as we marched firing increased to a very great degree, and continued without intermission of five minutes altogether, for I believe, upwards of eighteen miles; . . . notwithstanding the enemyís numbers, they did not make one gallant attempt during so long an action, through our men were so very much fatigued, but kept under cover. text@note2

3. This law did however make it a federal felony to possess the two rifles most commonly used in government-sponsored competition, the M1A and the AR-15, unless the rifle was manufactured before the effective date or was altered to exclude the offending cosmetic features. It is impossible for a prospective purchaser to know whether a rifle has been manufactured before the effective date or whether, for instance, a muzzle attachment has been added by a previous owner. text@note3

4. The Youngstown decision confronted President Trumanís order seizing the Nationís steel mills during the Korean War. The decision, particularly- Justice Jacksonís concurrence, offers a useful analogy. There the court confronted theí obvious: assignments of power within the Constitution cannot be ignored. Thus,í where one branch of government is given policy-making power, another cannot be permitted to assume that power. The same thing is true of the division of power among the national government and the states. Where Congress acts pursuant :to a specific delegation of power and with the consent of the states, it acts at its strongest. Where, as here, Congress acts pursuant to the general commerce power, its authorityí is at its limits. Where such an exercise of the commerce power extends into areas specifically reserved to the states, that exercise must yield to the extent necessary to give effect to state law. text@note4

5. Survey results show almost 90% of Americans believe the Constitution assures their right to possess a firearm. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 207 (1953). text@note5

6. E.g., United States v. Friel, 1 F.3d 1231 (1st Cir. 1993) involved the prohibition on possession of arms by felons, which is also prohibited under the relevant state law. Mass. Gen. Laws Chap. 269, § 10. The same was true of United States v. Toner, 728 F.2d 115 (2d Cir. 1984); United States v. Rybar, 103. F.3d 273 (3d Cir. 1997); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977); and United States v. Wright, 117 F.3d 1265 (11th Cir. 1997). text@note6


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