Ethan Allan Institute/Heartland Institute, amicus curiae, US v. Emerson

The Potowmack Institute

The Ethan Allen Institute and the Heartland Institute as amicus curiae
US v. Timothy Joe Emerson
US Court of Appeals, Fifth Circuit
Filed December 17, 1999

submitted by Brannon P. Denning


The Ethan Allen Institute is a Concord, Vermont-based, free-market public policy research and educational organization dedicated to the preservation of liberty and property. The Institute’s President, John McClaughry is a former member of the Vermont House and Senate, and a former White House Senior Policy Advisor.

The Heartland Institute is a nonprofit, public-policy research organization founded in Chicago, Illinois in 1984, and dedicated to meeting the information needs of the nation’s state and national elected officials, journalists, and its members.

Through educating the public and the legal community, and through participating in litigation, both the Ethan Allen Institute and the Heartland Institute seek to defend all constitutional rights, including the Second Amendment.

In a telephone conversation on Thursday, December 16, 1999, Mr. Ira Kirkendoll, the United States Public Defender for the Northern District of Texas gave his consent to my filing this brief; The office of United States Attorney William B. Mateja, through his secretary Susan Mays, transmitted his consent by telephone on Thursday, December 16, 1999.

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Amici have submitted this brief to offer additional support for the District Court’s conclusion that the Second Amendment guarantees an individual right. First, amici argue that the District Court was correct in concluding that the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939) at least did not foreclose an individual rights reading of the Amendment. In fact, amici demonstrate that the Miller Court implicitly adopted such a reading. Second, amici demonstrate that contrary assertions from other federal courts are based on erroneous readings of Miller and should not be regarded as persuasive authority by the Court of Appeals. 1

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.



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While noting authority from other circuits to the contrary, the District Court in accord with the overwhelming weight of the scholarship on the subject, found that "[it is difficult to interpret Miller as rendering the Second Amendment meaningless as a control on Congress." United States v. Emerson, 46 F. Supp.2d 598, 608 (N.D. Tex. 1999). A better reading of the case, the District Court wrote, is that "Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction." Eçi. at 608-09. Though the District Court found that "Miller did not answer the crucial question of whether the Second Amendment embodies an individual or collective right to bear arms," j4. at 608, in fact the Miller Court implicitly endorsed an individual rights view by declining to adopt the collective or states’ rights view proffered by the Government in its brief to the Supreme Court.

A. The Supreme Court’s Holding in United States v. Miller Implicitly

Adopted an Individual Rights Interpretation of the Second Amendment.

United States v. Miller, 307 U.S. 174 (1939), is the United States Supreme Court’s only significant interpretation of the Second Amendment this century. Miller arose as a result of an appeal taken by the United States Government to the Supreme Court following the dismissal of an indictment against two Arkansas men accused of

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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.

The Supreme Court reversed the District Court, but in doing so, it avoided any sweeping statements regarding the scope of the Second Amendment. It held simply that

Id. at 178. Implicit in the holding is the point that if the defendants had made such

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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).

While Justice McReynolds described the "obvious purpose" of the Second Amendment to be assuring "the continuation and render possible the effectiveness of’ the militia, Miller, 307 U.S. at 178, and wrote that the Amendment "must be interpreted and applied with that end in view," id., he also noted that at the time of the Framing, militias were made up of individuals, viz. "all males physically capable of acting in concert for the common defense," id. at 179, who often supplied their own weapons. Id. Militia members are, in Justice McReynolds’s words, "civilians primarily, soldiers on occasion." Id. at 178-79. More importantly they are, as McReynolds recognized, individuals.

Securing for individuals the right to keep and bear arms so that they could

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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)").

Had the Miller Court believed that rights under the Second Amendment existed only for the benefit of states, and not individuals, then the Court would have had to ask only one question: "Are Messrs. Miller and Layton states?"— since the answer to that question was "no," the Court simply could have dismissed the Second Amendment argument for lack of standing. That the Court did not strongly suggests that it did not in fact adopt a "states’ rights" or "collective rights" interpretation of the Second Amendment, which is confirmed by the Court’s rejection of such arguments made by the Government in its brief, described below.

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B. he Miller Court Rejected the Collective Rights Argument Put Forth by the Government.

Further supporting the argument of amici that the Miller Court implicitly adopted an individual rights interpretation of the Second Amendment is the fact that Court rejected the collective rights argument made by the United States Government in its brief, which was the only brief filed with the Court.

The Government claimed that "the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law." Brief of the United States, United States v. Miller, 307 U.S. 174 (1939) (No. 696), at 4-5. The Government further argued that the Second Amendment "gave sanction only to the arming of the people as a body to defend their rights against tyrannical and unprincipled rulers" and "did not permit the keeping of arms for purposes of private defense." Id. at 12. The reference to a "well regulated militia" that precedes the Second Amendment, it maintained, "indicates that the right to keep and bear arms is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state." 1.4. at 15.

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The Court made no direct mention of the Government’s arguments in its opinion; 3 rather it partially adopted an alternative argument of the Government. Assuming arguendo that the Second Amendment protected an individual right to keep and bear arms, the Government argued, the only arms protected were those suitable to military purposes, as opposed to weapons— like sawed-off shotguns— that "constitute the arsenal of the ‘public enemy’ and the ‘gangster" and that the National Firearms Act was intended to regulate. k. at 18,20. Even here the Court handed the Government only half a loaf. The Miller Court said merely that it was presented with no evidence of and could not take judicial notice of a sawed-off shotgun’s military utility.

It is true that "[t]he Court [in Miller} did not. . . attempt to define, or otherwise construe, the substantive right protected by the Second Amendment," Printz v. United States, 521 U.S. 898, 937 n. 1 (1997) (Thomas, J., concurring). But it is also true that the Miller Court implicitly adopted the position that the Amendment protects an individual right, as the District Court in Emerson concluded, by (i) not reversing the lower court’s decision on the ground that the defendants lacked standing; and (ii) by

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rejecting the Government’s arguments that the Second Amendment protected only a collective right.

C. Dicta in Post-Miller Supreme Court Cases Support an Individual Rights Interpretation of the Second Amendment.

Since Miller, the Supreme Court has not taken up a Second Amendment case, but the Supreme Court has repeatedly mentioned in the Second Amendment in other cases. The most significant of these statements is a rule for Fourteenth Amendment interpretation, which has been used in six opinions:

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

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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

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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 .


In its opinion, the District Court acknowledged authority from other federal jurisdiction contrary to its individual rights reading of the Second Amendment, see Emerson, 46 F. Supp. 2d at 607-08. In this section, amici argue that the decisions cited by the District Court and similar federal court decisions, misrepresent the holding of Miller to the extent that they cite Miller for the proposition that the Second Amendment protects no individual right, or hold that Miller conditions the exercise of the right on actual membership in a militia. Therefore, amici argue that those decisions should not be accorded any persuasive authority by the Court of Appeals.

A. The Contrary Decisions Cited by the District Court Distort and Miscontrue the Supreme Court’s Holding in Miller.

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The District Court cited five federal court decisions rejecting an individual rights reading of the Second Amendment. See Emerson, 46 F. Supp.2d at 607-08 (citing Hickman v. Block, 81 F.3d 98(9th Cir. 1996); Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Cases v. United States, 131 F.2d 916 (1st Cir. 1942); Hamilton v. Accu-Tek, 935 F. Supp. 1307 (E.D.N.Y. 1996)). Unfortunately, much of the court of appeals’ post-Miller jurisprudence has come to resemble a slow motion, temporally-extended game of "Telephone" in which the original propositions (from Miller itself) have been altered and reprocessed so as to bear no recognizable relationship to the original. A close reading of these cases reveals that those courts either misinterpret Miller or cite it for untenable propositions.

In Hickman, the Ninth Circuit rejected an individual’s Second Amendment challenge to state and local officials’ denial of his application for a permit to carry a concealed weapon on the ground that an individual had no standing to invoke the Second Amendment. Hickman, 81 F.3d at 101. In doing so, the court relied on decisions from other circuits that the Amendment "does not protect the possession of a weapon by a private citizen." Id. Not only did the Ninth Circuit’s opinion misstate the holding of Miller, writing that "the Court [in Miller found that the right to keep

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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

In Love v. Pepersack, the Fourth Circuit stated that "lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual right," Love, 47 F.3d at 124, and that "the collective right of keeping and bearing arms. . . must bear ‘a reasonable relationship to the preservation or efficiency of a well-regulatedmi1itia.'" Id. (quoting United States v. Johnson, 497 F.2d 548,550 (4th Cir. 1974) (per curiam) (quoting United States v. Miller, 307 U.S. 174, 178 (1939)). Again, the Fourth Circuit ignored or was unaware of the Government’s position, which the Supreme Court had declined to adopt. Moreover, the language quoted from Miller is misleading. Read in context, the language from Miller quoted by the Love court referred only to the nature of the weapon itself, not to the question

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of an individual right to possess weapons in general. 8 The Court was not discussing whether the defendantspossession of a weapon contributed to the preservation of efficiency of a militia. 9

The Sixth Circuit Court of Appeals, in United States v. Warin, similarly adopted a collective rights reading of the Second Amendment. The Warin court affirmed the conviction of man charged with possession of an unregistered machine gun who claimed membership in the unorganized militia of Ohio 10 and who sought to demonstrate that the weapon in question was to be offered to the U.S. military "as an improvement on the military weapons presently in use." Warin, 530 F.2d at 105. The Sixth Circuit did not even discuss Miller, but based its rejection of the defendant’s Second Amendment claim on its previous holding in Stevens v. United

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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.

The last court of appeals case cited by the District Court, Cases v. United States, and not Miller, is the real source for many of the sweeping propositions for which other federal courts have misleadingly cited Miller. The First Circuit, in 1942, rejected a Second Amendment challenge and upheld the conviction of a defendant, a convicted felon, for possession of a firearm in violation of federal law. Cases, 131 F.2d at 917-18. In doing so, the First Circuit refused to follow Miller to the extent that the case could be read to restrict governmental regulation of any weapon for

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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.

Rather than leave such questions for resolution by the Supreme Court, the Cases court proceeded to uphold the conviction based on the fact that though the weapon that the defendant was convicted of possessing had military utility, since there "was no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career," he must be assumed to have been "in possession of, transporting and using the firearm and ammunition simply on a frolic

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of his own. . . without any thought or intention of contributing to the efficiency of the well-regulated militia. .. ." Id. at 923.

Cases’ additional "state of mind" requirement has proved popular with subsequent courts, which have found it a convenient method for disposing of Second Amendment claims. In United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), the Eight Circuit, describing Cases as "one of the most illuminating circuit opinions on the subject of ‘military’ weapons and the Second Amendment," Id. at 1019, upheld the conviction of a defendant for possession of unregistered machine guns, despite evidence that the guns themselves were military weapons, the possession of which could contribute to the maintenance and efficacy of a well-regulated militia. Dismissing the Miller Court’s language about the origins of the militia as "historical residue," id., it went on to adopt the Cases state of mind test: "Where. . . a claimant presented no evidence either that he was a member of a military organization or that his use of the weapon was in ‘preparation for a military career,’ the Second Amefldment did not protect the possession of that weapon." Id. at 1020.

Similarly, in Love v. Pepersack, 47 F.3d 120(4th Cir. 1995), the Fourth Circuit cited Miller for the proposition that the person’s possession of a weapon, not the weapon itself, must have a reasonable relationship to the maintenance of a militia. See id. at 124. The court rejected the defendant’s Second Amendment claim because

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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).

Even when claimants have attempted to present evidence of membership in an unorganized militia, or otherwise attempted to meet the Cases intent requirement, courts dismiss such evidence out of hand. See, e.g., Rybar, 103 F.3d at 286 (membership in a "hypothetical or ‘sedentary’ militia will not suffice"; defendant’s status as a militia member under 10 U.S.C. § 311(a) insufficient); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977) (stating that "[t]o apply the [Second A]mendment so as to guarantee appellant’s right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy"; but giving no explanation why such an application would be unjustified).

In the final case cited by the Emerson court, a New York district court concluded that "the [Supreme] Court’s jurisprudence teaches that the [Second]

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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.

Reading the cases cited by the District Court that have held the Second Amendment protects no individual right, it is evident that those courts did not undertake a careful analysis of Miller, much less engage in detailed historical, structural, or textual analysis of the Second Amendment to arrive at their decision. In contrast with the careful, scholarly opinion of the District Court, previous decisions endorsing a collective rights interpretation of the Second Amendment seem to have been motivated by a desire to support a belief apparently held by those judges

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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.

Though not cited by the District Court, other federal district court and court of appeals decisions have rejected an individual rights reading of the Second Amendment, often asserting either that Miller endorses a collective rights reading or applying the "intent" test invented by the First Circuit in Cases. Amici argue that these opinions, too, are flawed, and should not be relied on by the court.

In 1942, the same year that Cases was decided, the Third Circuit Court of Appeals addressed the scope of the Second Amendment and the Miller decision in United States v. Tot, 131 F.2d 261 (3rd Cir. 1942). In upholding the conviction of a defendant for possession of a gun capable of being fitted for a silencer, the court declared that the Second Amendment "was not adopted with individual rights in mind, but as protection for States in the maintenance of their militia organizations

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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.

Other courts cite Miller for propositions that the Court’s opinion simply does not contain. The Third Circuit Court of Appeals, in Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir. 1973), cited Miller (without any accompanying page reference) in support of the proposition that "the right to keep and bear arms is not given by the United States Constitution." Id. at 610. In a highly publicized case upholding Morton Grove, Illinois’s ban on handgun ownership, the Seventh Circuit characterized Miller as having extended Second Amendment protection to arms that "are necessary to maintain a well regulated militia" but concluded, without analysis,

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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.


Finally, amici note that even the cases discussed above, in which courts have incorrectly interpreted Miller have not categorically held that an individual can never put forth a viable Second Amendment claim. For example, the Cases court did not deny that the Second Amendment contained a right that could be invoked by an individual. The court held simply that to put forth a viable claim, the appellant would had to have demonstrated that he "was or ever had been a member of any military

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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.

Other courts that have adopted a reading of the Second Amendment that absolutely bars an individual claim, see, e.g., Hickman; Tot, supra, do so either on a gross misreading of Miller, or as part of a conclusory holding that finds no support in the Court’s Miller decision. In the wake of recent scholarship, many courts have begun to eschew the categorical statements of earlier courts, even if they continue to read the Second Amendment narrowly. See, e.g., United States v. Spruill, 61 F. Supp.2d 587, 590-91 (W.D.Tex. 1999) (noting the recent attention paid to the Second Amendment by scholars, lack of clear direction by the Supreme Court, holding only that "[w]ithout more at this time. . . the Court chooses to. . . hold[] that the Second Amendment does not prohibit the federal government from imposing some restrictions on private gun ownership") (emphasis added); see also Gillespie v.

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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.

For recentjudicial expressions of support for the individual rights position, See, e.g. Runnenbaum v. Nationsbank of Maryland N.A., 123 F.3d 156, 170 n.8 (4th Cir. 1997) (en banc) (making the point that the "constitutionally-protected status of an activity. . . has little, if any, bearing" on whether the activity is recognized under the Americans with Disabilities Act as a "major life activity"; court noted that "carrying a firearm [is not] one of the major life activities under the ADA, though individuals have the constitutional right to . . . to ‘keep and bear Arms’," citing the Second Amendment); United States v. Atlas, 94F.3d 447, 452 (8th Cir. 1996) (Arnold, C.J., dissenting) ("[P]ossession of a gun, in itself, is not a crime. (Indeed, though the right to bear arms is not absolute, it finds explicit protection in the Bill of Rights.)"); United States v. Ardoin, 19 F.3d 177, 186 (5th Cir. 1994) (Weiner, C.J., concurring in part, dissenting in part, and dissenting in the judgment) (criticizing majority’s

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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'").


Amici strongly urge affirmance of the District Court’s opinion and have demonstrated that the Supreme Court’s opinion in United States v. Miller not only does not foreclose an individual rights interpretation of the Second Amendment, but in fact implicitly adopted that interpretation, the contrary holdings of other circuits notwithstanding. Given the wealth of new information about the intent of the Framers regarding the Second Amendment, as well as a close reading of previous judicial decisions that highlight their errors, the Court of Appeals could affirm the holding of the district court and not find itself "outside the mainstream" of considered legal opinion on the matter, even if its decision did put it at odds with older,

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erroneous decisions from other courts of appeal. The judgment of the District Court should be affirmed.

Respectfully submitted
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). text@note11

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