The Potowmack Institute
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
The District Court's Opinion Memorandum is at
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
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.
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
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
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
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.
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.
The governmentís position in this case directly
implicates the Second and Tenth Amendments.
A. A Law That Does No More Than Prohibit The Mere
A Firearm By Anyone Subject To A State Court Divorce
Injunction Is Beyond The Authority Of Congress
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
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
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
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.
B. There Is No General Federal Power To Prohibit The
Mere Possession Of A Firearm By Citizens Of The
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
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.
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
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
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
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
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.
He dispatched a force to collect and destroy the
colonistsí firearms and
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
actually fits the definition of an "assault rifle"
under federal law. See 18 U.S.C. § 921.
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.
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
Co. v. Sawyer, 343 U.S. 579 (1952) (confronting
constitutional assignment of power between the
President and Congress).
C. There Is No General Federal Power To Direct
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
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
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).
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
process of judicial review is to retain its
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).
A. The Second Amendment Was Intended To Preserve The
Right Of The Law-Abiding Citizen To Possess Firearms
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
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.
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
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:
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).
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
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).
B. Even If The Second Amendment Merely Protected The
Statesí Rights To Set Firearmís Policy, The Result
Would Be The Same
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.
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
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
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
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
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
C. Confirmation Of The Second Amendment Is Crucial To
The Publicís Respect For The System Of Judicial Review
1. It Is Uniquely the Province of the Courtís to
Interpret the Constitution and to Balance Expansion of
the Federal Powers By the Other Branches
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.
2. Confirmation of the Second Amendment is A Practical
Necessity to Facilitate Reasonable Regulation
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
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
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.
David J. Schenck
Robert H. Mow, Jr.
Attorneys for the Texas State Rifle Association.
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
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.
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
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
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).
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).
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