This file available as filed with the court in PDF format without comments at:
http://www.potowmack.org/ccrkba.pdf

grassroots organization dedicated to preserving the individual right to keep and

bear arms as enumerated and codified under the Second Amendment and numerous

State Constitutional protections. The Citizens Committee works to educate

lawmakers on the federal, state and local levels on the importance of protecting

individual gun ownership and our Constitutional heritage and maintains a

Washington, D.C. office for contacting all members of Congress. Fifty-eight

current Members of Congress sit on the Citizens Committee National Advisory

Board. The Citizens Committee represents over 650,000 members and supporters

nationwide with members in every state of the union.

Amendments. First, there is no due process under the rarely used law or "notice" of

the substantial penalties awaiting an unsuspecting person. Second, this court

should affirm the District Court's decision which has already been followed by

United States v. Ficke, 58 F. Supp. 2d 1071, 1073 (D. Neb. 1999) which found 18

USC sec. 922(g)(9) unconstitutional. Third, there is no requirement of a judicial

finding, creating an overly-broad statute that casts a wide net far beyond Dr.

Emerson. Fourth, the law could actually decrease public safety as victims are

disarmed as part of unstandardized court orders, particularly "mutual restraining

orders". Fifth, Congress has repeatedly held that the Second Amendment is an

individual right through their laws and it is time for this Court to uphold the

individual right to keep and bear arms.

(people convicted of certain crimes, dishonorably discharged from the military,

drug/alcohol addicts, and the adjudicated mentally incompetent) 922(g)(8) includes

prohibitions where no crime has been committed, no mental competency finding or

threat assessment is required. The reason for being in court is the process of

dissolution of marriage. Here, Dr. Emerson was charged under an "obscure, highly

technical statute." 1 While this statute is rarely used, Constitutional questions

abound in the few cases so far. This brief illustrates why 922(g)(8) is unconstitutional on both Fifth and Second Amendment grounds.

government argues that Dr. Emerson received "notice” that he could not possess

firearms if a restraining order was issued against him. The problems with this

reasoning are multi-faceted.

Form 4473 correctly by truthfully answering "no" to the question relating to

restraining orders.

memorization of each provision. While the government insists that Dr. Emerson be

responsible for every little detail on the four-page, small type document, it is

unreasonable to ask someone to recall every detail over a year later of even a

simpler form, such a rental car agreement. Moreover, unlike with a car rental

agreement, Dr. Emerson was not given his own copy of the Form 4473 to review at

a later time.

detail, the form NEVER informed him that he must get rid of his existing firearms.

The relevant portions read:

j. Are you subject to a court order restraining you from
harassing, stalking, or threatening an intimate partner or
child of such partner? (See Important Notice 6 and
Definition 4.)...

IMPORTANT NOTICES

6. Under 18 U.S.C. 992, firearms may not be sold to or
received by persons subject to a court order . . . [emphasis
added]

must remove his previously and legally owned firearms, if and when he ever

became subject to a restraining order. Nor was warning given of the strict criminal

law liability or the substantial federal felony penalties. It is a gross distortion of

our justice system to claim that Dr. Emerson, or any other person, could have had

922(g)(8) is an unconstitutional violation of the Fifth Amendment.

subsection 18 U.S.C. sec. 922(g)(9) which makes jt unlawful for any person

"convicted in any court of a misdemeanor crime of domestic violence" to possess a

firearm which had been shipped or transported in interstate commerce. 2 Fricke

argued that sec. 922(g)(9) violated the notice and fair warning requirements of the

due process clause of the United States constitution.

misdemeanor assault in connection with an incident of domestic violence and was

sentenced of six months probation and ordered to complete anger control classes.

Over four years later, in September 1998, he was arrested at his home after his wife

reported an alleged domestic assault. 3 At the home, the officers found and

confiscated various rifles even though neither the defendant's wife nor the arresting

officers indicated that the defendant used the guns to threaten his wife during the

alleged assault. 4 Fricke was indicted and pleaded guilty. However, the court

allowed Fricke to file a motion to dismiss before sentencing in light of the

Emerson ruling. 5

922(g)(9) when: 1) his conduct in possessing the firearms was "wholly passive,"

and 2) he did not know that federal law proscribed his possession of firearms. 6 In

granting that motion, the court found that 922(g)(9) created an impermissible strict

liability crime that violates fundamental due process principles of notice and fair

warning. The court concluded:

Section 922(g)(9) criminalizes behavior that for two
years following this defendant's misdemeanor conviction
was entirely innocent under both federal and state law.
The defendant therefore received no warning during the
underlying misdemeanor proceedings, at which he
appeared pro se, that continued possession of his hunting
weapons would subject him to a federal felony
prosecution. The defendant had no actual notice of the
enactment of this obscure, hard-to-find provision, nor
would he have had a reasonable opportunity to discover it. 7

unconstitutionally imposes strict criminal liability when the defendant "simply did

not know and did not receive fair warning that his conduct had become unlawful." 8

cases, yet the consequences under 922(g)(8) can be severe. This law does not even

require a judicial finding of fact to deny any individual's right to keep and bear

arms. There are no standards for termination of the right to keep and bear arms

guaranteed under the Second Amendment, and of the means to exercise the right of

self-defense as recognized in all courts and guaranteed under the Ninth

Amendment. These factless, baseless grounds of deprivation contrasts sharply with

other prohibited categories, such as felons, certain misdemeanants, and the

dishonorably discharged.

wife's boyfriend, his wife, and his daughter. While this evidence might be relevant

if the statute in question required any type of judicial finding of a threat, the fact is

that the law was ruled unconstitutional because the law does not require any such

evidence or finding. By trying to justify the law with allegations that Dr. Emerson

is a credible threat, the government proves Judge Cumming's assertion on that it is

not difficult, or unreasonable, to require evidence of a threat, and that 922(g)(8) is

unconstitutional for failing to limit its scope to credible threats.

Emerson are true, then he would fit into any properly narrowed statute barring

firearm possession from people subject to a restraining order with a finding that the

individual posed a "credible threat." Judge Cummings held that such a revised

statute "would not be so offensive."

Dr. Emerson is to influence this Court against Dr. Emerson. The vast majority of

constitutional case law has been built upon individuals with less than ideal

personal histories, as the Prosecution has found these persons' rights easier to

violate. Dr. Emerson is entitled to the same respect for his constitutional rights as

was accorded to Mr. Miranda, Mr. Escobar, Mr. Lopez, and other imperfect

individuals whose rights were violated. While an examination of Dr. Emerson's

character is an interesting aside, it is irrelevant when considering the

constitutionality of the statute. The real issue is the scope of the act.

Section 922(g)(8) was ruled overbroad, and a violation of the Second

Amendment, based on the immense number of people entrapped into criminal

activity— not because of Dr. Emerson's particular circumstances. From 1975-

1997, the U.S. averaged more than 1 million divorces each year. 9 In 1997 alone,

there were over 870,597 divorces, providing over 1,741,194 opportunities for

either party to request a restraining order that would automatically bar all firearms

from the person(s) subject to such orders. Divorce can include emotional rhetoric

and retaliatory actions. Examples include depletion of jointly held bank accounts,

incursion of substantial credit card debt, and unfounded allegations of domestic

abuse and even child abuse. Allowing an automatic ban on firearms possession

without any judicial Finding of a Fact is a violation of an individual's Second

Amendment rights.

likely to escalate as some states, such as Texas, consider "mutual restraining

orders." In cases of actual domestic violence, mutual restraining orders

automatically bar gun possession from both the perpetrator and the victim under

922(g)(8). Disarming victims is a tragic and unforeseen side effect of 922(g)(8)

because of its unconstitutionally broad provisions. In answer to the often-repeated

comment about saving women's lives through gun control, the following two brief

examples illustrate the danger of 922(g)(8).

Martin, who had previously assaulted and broke her arm and was under a court

order to stay away from both her and her property after a break-in. Martin broke in

again and was killed by his intended victim. Richmond County Sheriff Dale Furr

described the events:

...Thompson was ... watching television when she heard
the back door being broken down. She suspected it was
Martin, and she ran immediately to the bedroom door,
locked it, and grabbed her revolver ... He kicked down the
bedroom door, fired a shot at her and missed, and she
fired back at him and didn't miss. 10

likely disarmed the intended victim if mutual orders were granted without any

judicial finding of fact. Such events prove disastrous for women. For example,

Polly Przybyl was disarmed by the Cheektowaga, New York police after Lee, her

estranged husband of 17-years, tracked her to her mother's home and attempted to

gain entrance. The police took the Ms. Przybyl's firearms even though she had

called the police; and she had both a pistol permit and a Federal Firearms License.

She told the police that her husband had guns without the necessary permits and

that she knew she was in danger. Two days later, she obtained a restraining order,

but the police failed to collect his firearms. On August 22nd, 1994, Lee returned,

walked to the back of the house with Polly, where he stabbed her with a knife and

killed her. Lee then retrieved a rifle and shot Polly's mother. Lee finally shot

himself eleven hours later while police were negotiating his surrender." 11 In the

article, Polly's sister, Mindy stated:

I resent that the police disarmed my sister...

Even though I personally don't believe in guns my sister
knew how to protect herself with a gun. I believe she
could have saved herself and our mother had she been
armed....

If she had a gun at least she and my mother would have had a chance.

the Second Amendment, but by extension, their means to self-protection as

recognized by every court and guaranteed by the Ninth Amendment. So paramount

is the right of self-defense/self preservation, that convicted felons may raise it at

trail for unlawful possession of a firearm. 12

Kozinski in Footnote Seven stated:

The Second Amendment embodies the right to defend
oneself and one's home against physical attack. 13

join" Footnote Seven. 14 Judge Hawkins stated that it, "alludes to an interesting

and difficult question I would leave for another day." 15

case one-sided policy of removing firearms from domestic violence situations,

including from victims, and not through a restraining order under 922(g)(8), it

illustrates the dangers of eliminating the individual right to keep and bear arms

without requiring judicial findings of fact.

marriage dissolution proceeding is not comparable to a person convicted of a

crime, dishonorably discharged, or declared mentally incompetent. A person

subject to the order need not even be accused of any crime, only subject to a

restraining order without any Finding of Fact.

restraining order with a potential ex-spouse when no information is provided

regarding the elimination of Constitutional rights and felony penalties upon the

order's issuance. As written, 922(g)(8) entraps people into becoming federal felons

upon leaving the court house. Constitutional rights should not be vacated so easily

and without any knowledge provided.

right to keep and bear arms because Congress has consistently endorsed such an

interpretation of the Second Amendment, as well as, repeatedly supported

individual firearm ownership in general. These endorsements include: the

Freedmen's Bureau Act of 1866, approval of the Fourteenth Amendment, the

National Firearms Act of 1934, the Federal Firearms Act of 1938, the 1941 Private

Property Acquisition Act, the 1968 Gun Control Act, the Consumer Product Safety

Act of 1976, the current Militia Law, The Report of the Subcommittee on the

Constitution in 1982, the Firearms Owner Protection Act of 1986, and the Brady

Law of 1993. 16

codes, which made it illegal for freemen to exercise basic civil rights; including the

right to purchase, own and carry firearms. 17 Congress responded to this challenge
twice through the passage of the Freedmen's Bureau Act and the Fourteenth

Amendment.

The Freedmen's Act read in part:

the right ... to have full and equal benefit of all laws and
proceedings concerning personal liberty, personal
security, and the acquisition, enjoyment, and disposition
of estate, real and personal, including the constitutional
right to bear arms, shall be secured to and enjoyed by all
the citizens of such State or district without respect to
race or color or previous condition of slavery. 18

This same two-thirds also adopted the Fourteenth Amendment, which states:

No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law... 19

explained that its purpose was to protect "personal rights," including "the right to

keep and bear arms," from infringement by the States. 20 years after the

ratification of the Second Amendment, more than two-thirds of the Congress

believed with certainty that the Second Amendment enumerated an individual

right; enough to include it in both an Act and an Amendment designed to protect

the civil rights of the newly freed individuals formerly held as slaves.

Almost seventy years later, Congress began to consider what became known

as the National Firearms Act (NFA). 21 The NFA, through a system of taxation and

registration, severely restricted machineguns, short-barreled shotguns and rifles. 22

Attorney General and lawmakers as to how to pass the law without violating the

Second Amendment. These discussions are crucial in understanding that

lawmakers considered the Second Amendment an individual right. During one

crucial hearing discussion, Congressman David J. Lewis inquired about reconciling

the bill with the Second Amendment's individual right to keep and bear arms:

MR. LEWIS: Lawyer though I am, I have never quite
understood how the laws of the various States have been
reconciled with the provision in our Constitution denying
the privilege to the legislature to take away the right to
carry arms. Concealed-weapon laws, of course, are
familiar in the various States; there is a legal theory upon
which we prohibit the carrying of weapons— the smaller weapons.

ATTORNEY GENERAL CUMMINGS: Do you have
any doubt as to the power of the Government to deal with
machine guns as they are transported in interstate commerce?

MR. LEWIS: I hope the courts will find no doubt on a
subject like this, General; but I was curious to know how
we escaped that provision in the Constitution.

ATTORNEY GENERAL CUMMINGS: Oh, we do not
attempt to escape it. We are dealing with another power,
namely, the power of taxation, and of regulation under
the interstate commerce clause. You see, if we made a
statute absolutely forbidding any human being to have a
machine gun, you might say there is some constitutional
question involved. But when you say, "We will tax the
machine gun," and when you say that "the absence of a
license showing payment of the tax has been made
indicates that a crime has been perpetrated," you are
easily within the law.

MR. LEWIS: In other words, it does not amount to
prohibition, but allows of regulation.

ATTORNEY GENERAL CUMMINGS: That is the idea.
We have studied that very carefully. 23

Second Amendment and concern about having the NFA written to include any

unconstitutional infringement upon the individual right to keep and bear arms.

Federal Firearms Act ("FFA"), which regulated interstate commerce in firearms

and prohibited possession of firearms by felons where an interstate nexus could be

demonstrated. 24 The FFA again raised concerns over the infringement of rights

guaranteed by the Second Amendment as well as highlighted by Congressional

support for individual gun ownership. In the early discussions on Second

Amendment limitations, Senator William King stated to Senator Copeland, the

chief sponsor, that "we have a constitutional provision that right of the people to

keep and bear arms shall not be infringed ... [and he] was wondering if this bill was

not in contravention of the constitutional provision."

[t]he part relating to militia is important ... [as the] first
part of the constitutional provision.

while [the Second Amendment] refers to the militia, the
provision is alllusive and provides that the right of
the people to keep and bear arms shall remain inviolate. 25

gun ownership, little more mention to the individual right to keep and bear arms

under Second Amendment protection was discussed. In support of individual gun

ownership, the Senate Committee explained that the FFA was designed to impact

criminals, not law-abiding citizens:

The bill under consideration. ..is designed to regulate the
manufacture of and the shipment through interstate
commerce of all firearms. . . .It is believed that the bill
above referred to will go far in the direction we are
seeking and will eliminate the gun from the crooks'
hands, while interfering as little as possible with the
law-abiding citizen from whom protests have been
received against any attempt to take from him his means
of protection from the outlaws who have rendered living
conditions unbearable in the past decade. 26

exempting privately-owned firearms from the Property Requisition Act of 1941.

Less than two months before Pearl Harbor, Congress passed legislation authorizing

Presidential requisition of many properties with military uses from the private sector

upon payment of fair compensation. 27

That whenever the President, during the national emergency declared
by the President on May 27, 1941, but not later than June 30, 1943,
determines that (1) the use of any military or naval equipment,
supplies, or munitions, or component parts thereof, or machinery,
tools, or materials necessary for the manufacture, servicing, or

operation of such equipment, supplies, or munitions is needed for the
defense of the United States; (2) such need is immediate and
impending and such as will not admit of delay or resort to any other
source of supply; and (3) all other means of obtaining the use of such
property for the defense of the United States upon fair and reasonable
terms have been exhausted, he is authorized to requisition such
property for the defense of the United States upon the payment of fair
and just compensation for such property to be determined as
hereinafter provided, and to dispose of such property in such manner
as he may determine is necessary for the defense of the United States....

Nothing contained in this Act shall be construed-

(1) to authorize the requisitioning or require the registration of any
firearms possessed by any individual for his personal protection or
sport (and the possession of which is not prohibited or the
registration of which is not required by existing law),

(2) to impair or infringe in any manner the right of any individual to
keep and bear arms, or

(3) to authorize the requisitioning of any machinery or equipment
which is in actual use in connection with any operating factory or
business and which is necessary to the operation of such factory or
business. 28

provisions, noting:

It is not contemplated or even inferred that the President,
or any executive board, agency, or officer, would trespass
upon the right of the people in this respect. There appears
to be no occasion for the requisition of firearms owned

and maintained by the people for sport and recreation, nor
is there any desire or intention on the part of the
Congress or the President to impair or infringe the right
of the people under section 2 of the Constitution of the
United States, which reads, in part, as follows: "the right
of the people to keep and bear arms shall not be
infringed." However, in view of the fact that certain
totalitarian and dictatorial nations are now engaged
in the willful and wholesale destruction of personal
rights and liberties, your committee deem[sl it
appropriate for the Congress to expressly state that
the proposed legislation shall not be construed to
impair or infringe the constitutional right of the
people to bear arms. In so doing, it will be manifest
that, although the Congress deems it expedient to grant
certain extraordinary powers to the Executive in
furtherance of the common defense during critical times,
there is no disposition on the part of this Government to
depart from the concepts and principles of personal rights
and liberties expressed in our Constitution. 29

keep and bear arms because if private guns were registered, they could be

confiscated by the government. Compare the retention of private guns with the

plight of the organized portion of the militia. The War Department began taking

back all the rifles it had previous issued to them. 30 If, as the Government contends,

the entire Militia is only the "select" Militia (the National Guard), then the Second

PRA, the organized portion of the militia was disarmed and could be again.

the US Code.

Sec. 311. Militia: composition and classes

(a) The militia of the United States consists of all
able-bodied males at least 17 years of age and, except
as provided in section 313 of title 32, under 45 years of
age who are, or who have made a declaration of
intention to become, citizens of the United States and of
female citizens of the United States who are members
of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the
National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the
members of the militia who are not members of
the National Guard or the Naval Militia.

the Militia as defined under current law and as defined by Congress. This

definition is also supported by the Supreme Court in United States v. Miller, 307

U.S. 174 (1939), which reads:

The signification attributed to the term Militia appears
from the debates in the Convention, the history and
legislation of Colonies and States, and the writings of
approved commentators. These show plainly enough
that the Militia comprised all males physically
capable of acting in concert for the common defense.
"A body of citizens enrolled for military discipline." And
further, that ordinarily when called for service these men
were expected to appear bearing arms supplied by
themselves and of the kind in common use at the time. 31

gender biased and discriminatory by today's standards), Dr. Emerson qualifies as

part of the Militia. Although he is currently not called into active service,

according to Miller can "keep" his Beretta 92 pistol, which happens to be

identical to the one issued in the Armed Forces, until called to bear arms to provide

for the common defense.

Militia. The Court never questioned whether Mr. Miller was part of the Militia, a

very troubling fact for the "collective" rights theorists. If Miller was not part of the

militia to begin with, then there would be no need to examine whether the firearm

was a militia-type. It would have been a simple "no standing" case, as decided in

Hickman v. Block, 81 F.3d 98, 96 (9th Cir., 1996). No one from the "collective

rights" theory has ever explained the necessity of defining the class of protected

firearms under Miller, if Mr. Miller was not considered part of the Militia.

our Constitution, who were avid supporters of individual gun ownership and its

protection under the Second Amendment. Many of them also detailed the value of

individual firearm ownership toward "the preservation or efficiency of a well

regulated militia" as required under the Miller court and detailed under the current

Militia Law. These same Framers feared the destruction of the "general militia" as

defined by Congress and Miller and opposed the "select militia" as the Government

brief supports. 32 Some of the Framers' statements are supplied here:

I enclose you a list of the killed, wounded, and captives
of the enemy from the commencement of hostilities at
Lexington in April, 1775, until November, 1777, since
which there has been no event of any consequence... I
think that upon the whole it has been about one half the
number lost by them, in some instances more, but in
others less. This difference is ascribed to our
superiority in taking aim when we fire; every soldier
in our army having been intimate with his gun from
his infancy.

Thomas Jefferson letter to Giovanni Fabbroni, June 8, 1778.

"A militia, when properly formed, are in fact the people
themselves ... the constitution ought to secure a genuine
and guard against a select militia, by providing that the
militia shall always by kept well organized, armed, and
disciplined, and include, according to the past and
general usage of the states, all men capable of bearing
arms...

Richard Henry Lee writing in Letters from the Federal Farmer
to the Republic, Letter XVIII, May, 1788.
I ask, Who are the militia? They consist now of the
whole people, except a few public officers.

George Mason, 3 Elliot, Debates at 425-426, June 16, 1788 33

...their governor, constitutionally, the commander of the
militia of the State, that is to say, of every man in it able to
bear arms...

Thomas Jefferson, letter to Destutt de Tracy, January 26, 1811.
The project of disciplining all the militia of the United
States is as futile as it would be injurious, if it were
capable of being carried into execution...Little more can
reasonably be aimed at, with respect to the people at
large, than to have them properly armed and equipped;...

Alexander Hamilton, The Federalist Papers # 29.

A militia law, requiring all men, or with very few
exceptions besides cases of conscience, to be provided
with arms and ammunition... is always a wise institution,
and, in the present circumstances of our country,
indispensable.

John Adams, Thoughts on Government, 1776.

I object to the power of Congress over the militia and to
keep a standing army ... The last resource of a free people
is taken away; for Congress are to have the command of
the Militia ... Congress may give us a select militia which
will, in fact, be a standing army— or Congress, afraid of a
general militia, may say there shall be no militia at all.
When a select militia is formed; the people in general may be
disarmed."

John Smilie in the Pennsylvania convention. The Documentary
History of the Ratification of the Constitution, Vol. 2, Pages
508-509 (December 6, 1787).
The Militia is composed of free Citizens. There is
therefore no Danger of their making use of their Power to
the destruction of their own Rights, or suffering others to
invade them.

Samuel Adams. III S. Adams, Writings 251(1906).

capable of defending themselves from all forms of tyranny. Their words still ring

true in both the current Militia law and the Miller decision. Additional history of

Congress's Militia Acts is detailed in Perpich v. Dept. of Defense, 34 which holds

that the militia under the 1903 Dick Act is:

...divided the class of able-bodied male citizens between
18 and 45 years of age into an "organized militia" to be
known as the National Guard of the several States, and
the remainder of which was then described as the

"reserve militia," and which later statutes have
termed the "unorganized militia." [emphasis added] 35

than the State or National guard. This court should follow this long-standing

interpretation.

Product Safety Commission, there was a concern that over-regulation would

impact the individual gun ownership. An exemption from the law was created for

the manufacture or sale of firearms or firearms ammunition. Pub. L. 94-284, Sec.

3(e), May 11, 1976, 90 Stat. 504, provided that:

The Consumer Product Safety Commission shall make
no ruling or order that restricts the manufacture or sale of
firearms, firearms ammunition, or components of
firearms ammunition, including black powder or
gunpowder for firearms.

individual gun owner from intrusive and overbearing government bureaucracy and

the restrictions that could occur. Although the Consumer Product Safety Act does

not specifically invoke the Second Amendment, the CPSA does reflect Congress's

strong desire to protect individual gun ownership. This Court should not read

section 922(g)(8) in a manner that would conflict with that Congressional desire.

1982 Report of the Subcommittee on the Constitution of the Committee on the

Judiciary in the 97th Congress, titled, "The Right to Keep and Bear Arms." This is

a summary of the meaning of the Second Amendment. (Many additional individual

rights scholarly materials have been found since the report was issued.) It was a

unanimous, bipartisan and strongly-worded Report supporting the individual

right to keep and bear arms.

What the Subcommittee on the Constitution uncovered
was clear— and long-lost— proof that the second
amendment to our Constitution was intended as an
individual right of the American citizen to keep and carry
arms in a peaceful manner, for protection of himself, his
family, and his freedoms. 36

Thomas Jefferson and Samuel Adams and noted:

The right to bear arms is a tradition with deep roots in
American society... I have personally been disappointed
that so important an issue should have generally been so
thinly researched and so minimally debated both in
Congress and the courts. 37

Commentators of the time, and various court cases. The concluding paragraphs

destroy the notion that the "Militia" is the National Guard of today and reaffirm the

Second Amendment as an individual right:

That the National Guard is not the "Militia" referred to in
the second amendment is even clearer today. Congress
has organized the National Guard under its power to
"raise and support armies" and not its power to "Provide


for organizing, arming and disciplining the Militia" 38
This Congress chose to do in the interests of organizing
reserve military units which were not limited in
deployment by the strictures of our power over the
constitutional militia, which can be called forth only "to
execute the laws of the Union, suppress insurrections and
repel invasions." The modern National Guard was
specifically intended to avoid status as the constitutional
militia, a distinction recognized by 10 U.S.C. Sec 311(a).

The conclusion is thus inescapable that the history,
concept, and wording of the second amendment to the
Constitution of the United States, as well as its
interpretation by every major commentator and court in

the first half-century after its ratification, indicates that
what is protected is an individual right of a private
citizen to own and carry firearms in a peaceful manner. 39

passing the Firearms Owners' Protection Act of 1986 (FOPA), by finding that:

(1) the rights of citizens—

(A) to keep and bear arms under the second
amendment to the United States Constitution;

(B) to security against illegal and unreasonable
searches and seizures under the fourth amendment;

(C) Against uncompensated taking of property,
double jeopardy, and assurance of due process
of law under the Fifth Amendment; and

(D) against unconstitutional exercise of authority
under the ninth and tenth amendments; require
additional legislation to correct existing
firearms statutes and enforcement policies; and

(2) additional legislation is required to reaffirm the intent
of the Congress, as expressed in section 101 of the Gun
Control Act of 1968, that "it is not the purpose of this
title to place any undue or unnecessary Federal
restrictions or burdens on law-abiding citizens with
respect to the acquisition, possession, or use of firearms
appropriate to the purpose of hunting, trap shooting,

target shooting, personal protection, or any other lawful
activity, and that this title is not intended to discourage or
eliminate the private ownership or use of firearms by
law-abiding citizens for lawful purposes." Firearms
Owners' Protection Act 40

through prevention of registration of most firearms by providing:

No such rule or regulation prescribed after the date of the
enactment of the Firearms Owners' Protection Act may
require that records required to be maintained under this
chapter or any portion of the contents of such records, be
recorded at or transferred to a facility owned, managed,
or controlled by the United States or any State or any
political subdivision thereof, nor that any system of
registration of firearms, firearms owners, or firearms
transactions or dispositions be established.

Act. This protection even carried over to appropriation budgets of the Bureau of

Alcohol, Tobacco and Firearms (BATF). Congress has included the following

provision in every from BATF appropriation act since 1978:

Provided, That no funds appropriated herein shall be
available for administrative expenses in connection with
consolidating or centralizing within the Department of
the Treasury the records of receipts and disposition of
firearms maintained by Federal firearms licensees or for
issuing or carrying out any provisions of the proposed
rules of the Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, on Firearms

Regulations, as published in the Federal Register, volume
43, number 55, of March 21, 1978 41

The Congressional prohibition on firearm/firearm-owner registration is

reaffirmed again in the Brady Law. Section 103 dealing with the National Instant

Criminal Background check system reads in part:

(i) Prohibition Relating To Establishment of Registration
Systems With Respect to Firearms. - No department,
agency, officer, or employee of the United States may-
(1) require that any record or portion thereof generated
by the system established under this section be recorded
at or transferred to a facility owned, managed, or
controlled by the United States or any State or political
subdivision thereof; or


(2) use the system established under this section to
establish any system for the registration of firearms,
firearm owners, or firearm transactions or dispositions,
except with respect to persons, prohibited by section
922(g) or (n) of title 18, United States Code, or State law,
from receiving a firearm. 42

This portion of Brady continues the policy from the Property Requisition

Act and FOPA, both of which specifically protected the individual right to keep

and bear arms under the Second Amendment.

to keep and bear arms goes virtually unnoticed in lower court cases presuming that

the Second Amendment is simply a "collective” right. It is time for the Judicial

Branch to consider the long-standing opinion of the Legislative Branch in ruling on

the intent behind the Second Amendment. It was first drafted, debated and ratified

by Congress and has been defended rigorously as an individual right throughout

our nation's history.

consider the interpretation preferred by Congress as the crafters of the legislation.

Because Congress has repeatedly acted to protect individual firearms ownership in

general, and the Second Amendment in particular, the statutory interpretation that

best effectuates these often-expressed preferences should be upheld.

This court should interpret the statute at bar to require a finding of dangerous

not only because such a reading is consistent with the Second Amendment, but

because it matches the expressions of Congressional intent regarding the Second

Amendment and individual gun ownership in general. If such a reading is not

possible, then the statute must be struck down as an unconstitutional violation of

the Second Amendment.

Court, is--like section (g)(9)— a clear violation of both the Fifth and Second

Amendments. The Judgment of the District Court should be affirmed.

Dated: 12/21/99
Shawn Newman
Attorney at Law
Citizens Committee for the Right to Keep and Bear Arms
1090 Vermont Avenue N.W., Suite 800
Washington, DC 20005

1. See, United States v. Emerson, 46 F.Supp.2d 598, 613 (N.D. Tex. 1999). text@note1

2. United States v. Ficke, 58 F. Supp. 2d 1071 (D. Neb. 1999). text@note2

3. Id.,at 1072. text@note3

4. Id.,at 1072. text@note4

5. Id.,at 1072. text@note5

6. Id., at 1074. text@note6

7. Id.,at 1075. text@note7

8. Id., at 1075. text@note8

9. Statistical Abstract for the United States 1998 and the Monthly Vital Statistics Report, Vol. 46, No. 12, U.S. National Center for Health Statistics, (1999). text@note9

10. Woman Kills Abuser Breaking Into Home, The Pilot Newspaper of South Pines, North Carolina, Vol. 79, No. 14(12/17/1998). text@note10

11. Husband Murders Wife Disarmed by Police, Women & Guns (November), p 10, 1994). text@note11

12. See, e.g., United States v. Panter, 688 F.2d 268 (5th Cir., 1982); United States v. Gomez, 92 F.3d 770 (9th Cir., 1996). text@note12

13. Gomez, 92 F.3d at 774. text@note13

14. Gomez, 92 F.3d at 778. text@note14

15. Gomez, 92 F.3d at 779. text@note15

16. Many of these Congressional actions are given a thorough review by Stephen P. Halbrook, "Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms," 62 Tenn. L. Rev. 597 (1995). text@note16

17. "Norman Chachkin, History of Constitutional Litigation for Human Rights Issues— Especially Race Issues 5-7 (Practicing Law Institute, 1994). text@note17

18. 14 Stat. 176-77 (1866). text@note18

19. U.S. Const. amend. XIV, § 1. text@note19

20. Cong. Globe, 39th Cong., 1st Sess. 2764-65 (1866). text@note20

21. 48 Stat. 1236 (1934). text@note21

22. Id text@note22

23. National Firearms Act: Hearings on H.R. 9066, Before the House Committee on Ways and Means, 73d Cong., 2d Sess. 19 (1934) text@note23

24. Federal Firearms Act, Ch. 850, 52 stat. 1250 (1938). text@note24

25. 79Cong.Rec. 11973 (1935). text@note25

26. S. Rep. No. 82, 75th Cong., 1st Sess. 1-2 (1937). text@note26

27. Property Requisition Act, ch. 445, 55 Stat. 742 (1941). text@note27

28. Property Requisition Act, ch. 445, 55 Stat. 742 (1941) (emphasis added). text@note28

29. H.R. Rep. No. 1120, 77th Cong., 1st Sess. 2 (1941). text@note29

30. See, e.g., Marvin W. Schiegel, Virginia on Guard: Civilian Defense and the State Militia in the Second World War 129 (1949). text@note30

31. 307 U.S. 174, 818-819 (1939). text@note31

32 United States v. Miller, 307 U.S. 174, 818-819 (1939). text@note32

33. Reprinted in Jonathan Elliot, ed, Vol. 3, The Debates in the Several State Conventions, at 425426 (1941) text@note33

34. 496 U.S. 334 (1990) text@note34

35. Perpich, 496 U.S. at 341 text@note35

36. Report of the Senate Judiciary Committee Subcommittee on the Constitution, 97th Cong., 2d Sess., The Right to Keep and Bear Arms, Page viii. text@note36

37. Id., Page xi. See also http://www.2nd1awlib.org/journa1s/senrpt/senr pt.htm1 text@note37

38. H.R. Report No. 141, 73d Cong., 1st sess. at 2-5 (1933) text@note38

39. Supra. Note 36, Pages 11-12. text@note39

40. FOPA § 1(b), 100 Stat. 449 (1986) (codified at 18 U.S.C. § 921 et seq.). text@note40

41. E.g., 106 Stat. 1731 (1992). text@note41

42. 18 USC 922. text@note42

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