The Potowmack Institute
submitted by Brannon P. Denning
Finally, amici demonstrate that even courts that have narrowly (and erroneously) read Miller to deny a Second Amendment claim have not foreclosed an individual rights reading of the Second Amendment.
I. THE DISTRICT COURT CORRECTLY INTERPRETED MILLER AS NOT FORECLOSING AN INDIVIDUAL RIGHTS READING OF THE SECOND AMENDMENT.
A. The Supreme Court’s Holding in United States v. Miller Implicitly
Adopted an Individual Rights Interpretation of the Second Amendment.
possessing a sawed-off shotgun in violation of the National Firearms Act of 1934, see Miller, 307 U.S. at 174 (citing 48 Stat. 1236, § 6(1934)). The U.S. District Court for the Western District of Arkansas had quashed the indictment after finding that the National Firearms Act "offend[ed] the inhibition of the Second Amendment to the Constitution." See United States v. Miller, 26 F. Supp. 1002, 1003 (W.D. Ark. 1939), rev’d 307 U.S. 174 (1939). 2 Following the District Court’s decision, the Government appealed directly to the United States Supreme Court. The Government was the only party that filed a brief with the Court and was the sole party appearing at oral argument.
Id. at 178. Implicit in the holding is the point that if the defendants had made such
a showing, the Court might have struck down the provision in question. There seemed no question that the defendants as individuals were competent to raise the Second Amendment as a defense. If a collective or states’ rights view were adopted, the Court could have reversed the District Court on the ground that the individual defendants who were apparently not members of any formal or informal "well regulated militia" did not have standing to invoke the Second Amendment’s protections. See, e.g., Tennessee Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118(193 9) (holding that an electric company cannot challenge TVA because it lacked standing); Alabama Power Co. v. Ickes, 302 U.S. 464 (1938) (same).
fulfill that role as members of militias, should the need arise, would be the primary means of"assur[ing] the continuation and render[ing] possible the effectiveness of’ militias. As Thomas Cooley noted, "The alternative to a standing army is a ‘wellregulated militia’; but this cannot exist unless the people are trained to bearing arms." 1 Thomas M. Cooley, Constitutional Limitations 729(8th ed. 1927); see also William Van Alstyne, "The Second Amendment and the Personal Right to Arms," 43 Duke L.J. 6, 1244 (1994) (writing that the Second Amendment "expressly embraces" the right to keep and bear arms and "erects the very scaffolding of a free state upon that guarantee"; "The militia to be well-regulated is a militia to be drawn from.
people with a right to keep and bear arms. . . rather than from some other source (i.e., from people without rights to keep and bear arms)").
B. he Miller Court Rejected the Collective Rights Argument Put Forth by the Government.
C. Dicta in Post-Miller Supreme Court Cases Support an Individual Rights Interpretation of the Second Amendment.
This rule plainly treats "the right to keep and bear arms" as one of the "specific guarantees" in the Bill of Rights which the Fourteenth could make enforceable against state action. Whether the Second Amendment is incorporated is not the issue in the instant case; rather, the Court’s recognition of the right to keep and bear arms
as part of the Bill of Rights litany which could be incorporated shows that the Court considers the Second Amendment to be an individual right. It would be absurd for the Court to discuss, in the context of Fourteenth Amendment incorporation, a right which belongs to state governments. Many other Fourteenth Amendment cases recognize the Second Amendment as an individual right; these cases antedate and precede Miller, and include opinions by Justice Black, who served on the Court that decided Miller. 5
The Supreme Court has also listed restrictions on the right to keep and bear arms (such as the sawed-off shotgun restrictions at issue in Miller, or restrictions on individuals carrying concealed handguns) in pari materia with
restrictions on other individual rights (such as libel laws which limit free speech) to show that none of the personal rights of the Bill of Rights are absolute. 6
generally David B. Kopel, "The Supreme Court’s Thirty-five Other Second Amendment Cases." 18 St. L. U. L. Rev. (1999, forthcoming), available at http://www.i2i.org/SuptDocs/Crime/35.htm .
II. FEDERAL COURT DECISIONS CITING MILLER FOR THE PROPOSITION THAT THE SECOND AMENDMENT DOES NOT GUARANTEE AN INDIVIDUAL RIGHT, OR THAT THE RIGHT PROTECTED IS AVAILABLE ONLY TO MEMBERS OF A MILITIA, MISCONSTRUE THE MILLER COURT’S HOLDING.
A. The Contrary Decisions Cited by the District Court Distort and Miscontrue the Supreme Court’s Holding in Miller.
and bear arms is meant solely to protect the right of the states to keep and maintain armed militia," Id., but the court made several factual errors regarding the case itself that suggest the court had not read the Miller opinion carefully if at all. 7
of an individual right to possess weapons in general. 8 The Court was not discussing whether the defendants’ possession of a weapon contributed to the preservation of efficiency of a militia. 9
States, 440 F.2d 144 (6th Cir. 1971), in which the Sixth Circuit cited Miller for the proposition that the Second Amendment applied only "to the right of the State to maintain a militia" and that "no serious claim to any express constitutional right of an individual to posses a firearm" could be maintained. Id. at 149. Though Stevens cites to page 178 of the Miller opinion, there is nothing there that remotely supports the Sixth Circuit’s conclusion. The page of Miller cited by the Stevens court contains the language, quoted above, that the Court could not, without evidence, conclude that a sawed-off shotgun is the type of weapon protected by the Second Amendment. See Miller, 307 U.S. at 178. Nevertheless, solely on the strength of its dubious reading of Miller in Stevens, the Warm court concluded that it was "clear that the Second Amendment guarantees a collective rather than an individual right." Warin, 530 F.2d at 106.
which "a reasonable relationship to the preservation or efficiency of a well-regulated militia" could be demonstrated. Id. at 922. Such a reading, coupled with the realities of modem warfare in which all weapons had potential military utility, the court argued, would mean that "the federal government would be empowered only to regulate the possession or use of [antique or obsoletel weapons. . . ." id.; see also id. ("Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military weapons.. . even though under the circumstances. . . it would be inconceivable that a private person could have any legitimate reason for having such a weapon."). This, the court concluded, "is in effect to hold that the limitation of the Second Amendment is absolute." hI.
of his own. . . without any thought or intention of contributing to the efficiency of the well-regulated militia. .. ." Id. at 923.
she did not "identifly] how her possession of a handgun will preserve or insure the effectiveness of the militia." Id. See also United States v. Wright, 117 F.3d 1265, 1272 (11th Cir. 1997) (adopting "intent" test); United States v. Rybar, 103 F.3d 273, 286 (3rd Cir. 1996) (same; defendant failed "to establish that his firearms possession bears a resonable relationship ‘to the preservation of efficiency of a well-regulated militia"); Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987) (same).
Amendment establishes a collective right, rather than an individual or private right." Accu-Tek, 935 F. Supp. at 1318. Yet the court cited as support for its proposition, not Miller, but the Warin decision. See §.. The only citation to Miller actually made by the court was to quote the language that the Amendment must be interpreted and applied to render viable the militia. See id. The court then quoted from the Stevens decision’s bald assertion that "there can be no serious claim" that the Second Amendment protected an individual right. Note again how the most restrictive statements about the Second Amendment’s scope are found not in Miller but in what other courts allege that Miller held allegations that find little support in the actual language of Miller.
that the Amendment was simply not a right that individuals ought to have. 11
B. Other Federal Court Decisions Similarly Make Erroneous Use of the Miller Decision.
against possible encroachments by federal power." Tot 131 F.2d at 266. It then cited historical materials and law review articles purporting to offer support for the court’s statement. However, none of the sources cited support the contention that the Amendment "was not adopted with individual rights in mind"; many of the sources, in fact, support the view that the Second Amendment guarantees an individual right. See Denning, "Gun Shy," supra, at 740-44 (discussing in detail the sources cited by the Tot court). Prior to its historical discussion, the court stated that, in its view, "[t]he contention of the appellant [that the statute violated the Second Amendment] could. . . be denied without more under the authority of [Miller]." Tot, 131 F.2d at 266. As in Cases, the underlying assumption of the court in Tot was that Miller rejected an individual rights reading of the Second Amendment.
that "[u]nder the controlling authority of Miller . . . the right to keep and bear handguns is not guaranteed by the second amendment." Quilici v. Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (footnote omitted). It added in a footnote, again without giving reasons, that "we do not consider individual owned handguns to be military weapons." Id. at 270 n.9. See also Oakes, 564 F.2d at 387 (citing Miller as having rejected "the absolute right [of citizens] to keep and bear arms" despite the fact that the Court in Miller never addressed the scope of the Amendment’s protections); United States v. Kozerski, 518 F. Supp. 1082, 1090 (D.N.H. 1981) (citing Miller as support for the statement that "[i]t is well established that the Second Amendment is not a grant of right but a limitation on the power of Congress and the national government"); Denning, "Can the Simple Cite Be Trusted," supra, passim.
III. EVEN COURTS THAT NARROWLY INTERPRET MILLER TO DENY A SECOND AMENDMENT CLAIM HAVE NOT FORECLOSED AN INDIVIDUAL RIGHTS READING OF THE SECOND AMENDMENT.
organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career," and not "in possession of, transporting and using the firearm and ammunition simply on a frolic of his own. . . without any thought or intention of contributing to the efficiency of the well-regulated militia. . . ." Cases, 131 F.2d at 923. Similarly, while adopting Cases’ judicially-created "intent" requirement, Pepersack, Wright, Rybar, and Sandidge, discussed supra, all hold that the defendant merely failed to meet the intent "test," not that an individual can never put forth a winning claim.
Indianapolis, 13 F. Supp.2d 811, 827 (S. D. md. 1998) (acknowledging judicial support for the collective rights position and declining to pass on the question in the interest of "judicial restraint," but stating the belief that "the existence of a collective rather than individual rights is far from settled"). The uncertainty now expressed by courts stands in sharp contrast to the conclusory statements of previous courts that the Second Amendment protects either "states’ rights" or "collective rights" and offers no protection for individuals.
conclusion that a defendant convicted of not paying taxes on illegal firearms could have avoided criminal liability by not owning or possessing the arms in question; "Such casual, dismissive responses are just not satisfactory when it comes to engaging in an activity, such as keeping and bearing arms, that arguably implicates the Bill of Rights"); Gilbert Equipment Co. v. Higgins, 709 F. Supp. 1071, 1090 (S.D. Ala. 1989) (despite holding that "the right to keep and bear arms does not extend to and include the right to import arms" nevertheless holding that "[t]he Second Amendment to the United States Constitution guarantees to all Americans the right ‘to keep and bear arms’ and further provides that this right "shall not be infringed'").
erroneous decisions from other courts of appeal. The judgment of the District Court should be affirmed.
Brannon P. Denning
Counsel for Amici Curiae Ethan Allen
Institute and Heartland Institute
1. For an more extensive critique of lower courts’ treatment of the Miller decision, see Brannon P. Denning, "Can the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment," 26 Cumb. L. Rev. 961 (1996); see also Brannon P. Denning, "Gun Shy: The Second Amendment as an ‘Underenforced Constitutional Norm’," 21 Harv. J. L. & Pub. Pol'y 719, 735-47 (1998). text@note1
2. Thus, while there had been no invalidation of a federal firearms statute on Second Amendment grounds in some time, the District Court’s decision in the instant case was not unprecedented. text@note2
3. It is possible that Justice McReynolds’ reference to the universal membership of Framing-era militias and the private ownership of arms by militia members, see Miller, 307 U.S. at 179-82, was an indirect rebuttal of the Government’s arguments that the protections of the Second Amendment should only extend to the militia collectively. text@note3
4. Albright v. Oliver, 510 U.S. 266, 307 (1994)(Stevens, J., dissenting on other grounds); Planned Parenthood v. Casey. 505 U.S. 833, 841 (1992)(O’Connor, J., opinion for the Court); Moore v. East Cleveland, 431 U.S. 494, 502 (1976)(plurality op.); Id. at 542 (White, J., dissenting on other grounds); Roe v. Wade, 410 U.S. 113, 169 (1973)(Stewart, J., concurring). The statement first appeared in Justice Harlan’s famous dissenting opinion in Poe v. Ullman. 367 U.S. 497, 542-43(1961)(Harlan, J., dissenting on other grounds). text@note4
5. Duncan v. Lousiana, 391 U.S. 145, 166-67 (1968)(Black, J., dissenting)("the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and bear arms; the right to be exempted from the quartering of soldiers in a house without consent of the owner..."); Knapp v. Schweitzer, 357 U.S. 371, 378-79 (1958); Adamson v. California, 332 U.S. 46 , 78, 104-07 (1947)(Black, J., dissenting)(quoting Congressional Record showing that sponsors of the Fourteenth Amendment considered the Second Amendment to be a "personal right); Twining v. New Jersey, 211 U.S. 78 (1908), overruled Malloy v. Hogan, 378 U.S. 1 (1 964)(right to arms and right to civil jury trial treated identically); Trono v. United States, 199 U.S. 521, 528 (1905)(same); Kepner v. United States, 195 U.S. 100, 123-24 (1904)(same); Miller v. Texas, 153 U.S. 535, 538 (1894)(application of Second, Fourth, and Fifth Amendments to state prosecution of an individual discussed in identical terms); United States v. Cruikshank, 92 U.S. 542 (1 876)(right to assemble and right to keep and bear arms are "found wherever civilization exists"; the Constitution protects both pre-existing rights, but does not create them; the constitutional right to assembly and to bear arms is not infringed by actions of private parties); see also Logan v. United States, 144 U.S. 263, 286-88 (1892)(repeating Cruikshank’s rule that First Amendment assembly right and Second Amendment arms right are identical in scope). Cf Brown v. Walker, 161 U.S. 591, 634 (1896)(Field, J., dissenting)(Fifth Amendment case; Bill of Rights litany includes "the right to bear arms" as among "the essential and inseparable features of English liberty"). text@note5
6. Konigsberg v. State Bar, 366 U.S. 36, 49-50 (1961); Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897). text@note6
7. First, the court claimed that Miller "upheld a conviction under the National Firearms Act." Hickman, 81 F.3d at 101. This is incorrect; the Court reversed the District Court’s decision to quash the indictment of the defendants Miller and Layton. Since the indictment was quashed, they had never been tried, much less convicted. The court also stated that the Supreme Court "rejected the appellant’s hypothesis that the Second Amendment protected his possession of [a sawed-off shotgunj." Id. This, too, is incorrect. It was the Government that appealed the lower court decision to quash the indictment, not the defendants. As amici point out above, had the Ninth Circuit consulted the Government’s brief and compared it to the Court’s holding in Miller, it would find that the very position for which it cites Miller was presented and rejected by the Supreme Court. text@note7
8. This is clear from the entire passage, but courts nevertheless have maintained that "the Miller Court assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its ‘possession or use’ and militia related activity." United States v. Rybar, 103 F.3d 273, 286 (3rd Cir. 1996). This simply misreads the Court, which stressed that, without evidence, it was unable to pass on a sawed-off shotgun’s military utility and that it could not take judicial notice of that fact. Miller, 307 U.S. at 178. No reference was made to the defendants’ apparent lack of conhectioii to a well regulated militia. Interestingly, Rybar cites as support for its position another court of appeals case, Cases V. United States, 131 F.2d 916 (1st Cir. 1942), and not the Miller decision itself. text@note8
9. Though if the purpose of providing for armed militias was to provide a check on the exercise of tyrannical power, as even the Government conceded in its brief, see Brief of the United States in Miller, supra, at 12, then that purpose would be frustrated if the government could prohibit private ownership of firearms. text@note9
10. Like many states, Ohio has a constitutional provision subjecting all resident citizens of certain ages to service in the state militia. See Ohio Const. art. IX, § 1. text@note10
11. This was apparent in the Warin
opinion. It commented that any interpretation
of the Second Amendment that placed
significant restrictions on the power of
Congress to regulate the private possession
of weapons "is completely irrational in this
time of nuclear weapons." Warin, 530
F.2d at 106. The point, of course, is a non
sequitur. Recognizing the existence of an
individual right under the Second Amendment
and the articulation of the right’s scope are
separate questions. It does not follow from
the former that a court would be obliged to
countenance any individual’s possession of
any sort of weapon. Second Amendment rights
are no more absolute than First Amendment
rights. See, e.g., Glenn Harlan
Reynolds, "A Critical Guide to the Second
Amendment," 62 Tenn. L.
Rev. 461,478-80,499-504 (1995)
(describing limits on weapons permitted by
the Second Amendment).
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