Appendix E
Potowmack Institute, amicus curiae
US v. Emerson, Fifth Circuit, Case No. 99-10331

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1. The Second Amendment Foundation, amicus curiae, US v. Francis J. Warin

2. Second Amendment Foundation, Reply brief, Filed October 28, 1975

3. Reply Brief of Defendant-Appellant, October 1, 1975

The District Court Opinion's central argument for a personal or individual right has been argued in Federal Court before by the Second Amendment Foundation in US v. Francis J. Warin, (530 F.2d 104, Sixth Circuit, 1976). The Second Amendment Foundation's assertion in Warin was more explicitly insurrectionist— "a basic right of freemen to take of arms to defeat an oppressive government"— whereas the District Court's Emerson Opinion rules for a personal right that has the right to insurrection implicitly hidden in it. The armed populace fantasy is an invention of mid-twentieth century extreme individualist rightwing/libertarian ideologies. Its underlying premises do not enjoy credibility even among more conventional conservative observers (Appendix G). This amicus has argued that it has no roots in original Second Amendment concepts. It nevertheless persists in seeking certification in the courts. The Second Amendment Foundation's arguments submitted in Warin were explicitly rejected.

1. Second Amendment Foundation, Amicus Curiae, Filed August 4, 1975 ]

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A. There Has Been No Definitive Interpretation of the Second Amendment

Although the Bill of Rights is a fundamental part of our constitutional heritage, there have been few cases dealing with the Second Amendment and none which can be considered a definitive, or even binding, interpretation today. Our research has uncovered only three occasions in which the Supreme Court has construed the extent of the constitutional right to keep and bear arms as guaranteed by the Second Amendment.

In United States v. Cruikshank, 92 U.S. 542 (1876), and in Presser v. Illinois, 116 U.S. 252 (1886), the Supreme Court was faced with challenges to state statutes which were alleged to contravene the right to keep and bear arms. In dismissing the challenge and upholding the state laws, the court concluded that the Bill of Rights constituted a limitation on the power of Congress and the national government, but did not constitute a limitation upon the states. Since United States v. Cruikshank applied the same rule to the First Amendment, it is clear that those cases can have no continuing vitality in light of the numerous Twentieth Century cases holding that the Fourteenth Amendment incorporates the Bill of Rights. See, e.g., Palko v. Conn., 302 U.S. 319 (1937). Certain dicta appearing in the Presser decision is significant, for the court there stated that:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserve military force or reserve militia of the United States as well as of the states...

116 U.S. at 265.

The only other decision by the United States Supreme Court which we have found dealing with the Second Amendment is United States v. Miller, 307 U.S. 174 (1938). Oddly, this case lacked the adversary nature of most cases in that only the United States filed briefs or argued the case before the United States Supreme Court. Miller did not appear. This case dealt with an act of Congress making it illegal to transport certain weapons, including a short-barreled shotgun, in interstate commerce without first registering them. The trial court sustained a demurrer and dismissed the indictment under the Second Amendment. The Supreme Court reversed and remanded for a hearing because of the lack of an evidence supporting a finding that such a shotgun is "part of the ordinary military equipment or that its use could contribute to the common defense" or otherwise has a reasonable relationship to the preservation or efficiency of a well-regulated militia. 307 U.S. at 178. Thus, the court did not pass upon the validity of the Second-Amendment claim advanced and, lacking any party asserting the unconstitutionality of the statute, simply remanded for further proceedings. The extent to which the right may go beyond the dicta of United States v. Miller remains undetermined. The implication, however, is clear that where, as here, a relationship between the weapon regulated and the militia exists then the federal government cannot impose undue restrictions on possession and use (Note, 31 Alb. L. Rev. 74, 78 (1967)). As we argue, infra pages 25 to 26, a pervasive scheme of regulation is such an undue restriction constituting a major "chilling effect" upon the exercise of the right.

C. Lower Court Decisions Provide No Guidance

A series of recent lower court decisions have dealt with Second-Amendment claims. (See Appendix I for an analysis of each case.) Some have followed United States v. Miller and rejected Second-Amendment claims where there was no evidence in the record supporting the claim (e.g., United States v. Decker, 446 F.2d 165 (5th Cir. 1971); Cody v. United States, 460 F.2d 34 (8th Cir. ), cert. denied 409 U.S. 1010 (1972)). Other cases, however, misread United States v. Miller as dispositive of the constitutional issue (United States v. Williams, 446 F.2d 486 (5th Cir. 1971)), and dismiss Second-Amendment claims as "meritless" (United States v. Day, 476 F.2d 562 (6th Cir. 1973)), or "frivolous" (Freeman v. U.S.), (7th Cir. 1974) cert. denied 42 L. Ed.2d 269 (1974), or by flatly rejecting claims that the right to keep and bear arms is a right guaranteed by the United States Constitution (Eckert v. Philadelphia, 477 F.2d 618 (3d Cir), cert. denied, 414 U.S. 839 (1973)).

These and the other cases discussed in Appendix I reflect the absence of any articulated philosophy of the Second Amendment. No doubt many of them are cases in which an unsympathetic defendant has raised the Second Amendment as an act of desperation and has failed to argue it convincingly. By inducing this test case in which the issue is clearly joined, Mr. Warm has provided this court with an opportunity to articulate the true meaning of the Second Amendment.

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II. A Philosophy of the Second Amendment

The first ten amendments to the Constitution have been expressed as the "essential portion of the Constitution" without which the Constitution itself would never have been accepted by the American people. C. Warren, Congress, Constitution and the Supreme Court, at p. 85. The first ten amendments were prepared and adopted

...largely because of fear that the Government might unduly interfere with prized individual liberties...

The law is perfectly well settled that the first ten amendments to the Constitution commonly known as the Bill of Rights were not intended to lay down any novel principle of governments but simply to embody certain guarantees and immunities which we had inherited from our English ancestors.

Robertson v. Baldwin, 165 U.S. 275, 281 (1897). Notwithstanding the unquestioned importance of the other provisions of the Bill of Rights, to many, the right to keep and bear arms seems an anomaly. The purpose of this portion of the brief will be to outline a philosophy of the amendment grounded in the history surrounding its adoption, and to demonstrate the continuing vitality of that philosophy.

A. The Relationship of Arms to Political Freedom

The right to keep and bear arms is, like the right of freedom of speech and freedom of the press, in its ultimate sense a political right. It is a right concerned with power, the allocation of power, and restraints upon the abuse of power. It is a right the guarantee of which grew out of the founders fear of a standing army, a fear based both upon their own recent past and upon the experiences of England under the Stuarts. It has been called

the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers;

J. Story, II Commentaries on the Constitution 646 §1897 (5th Ed. 1891).

A study of world history demonstrates the close interrelationship between weaponry and the political balance which has existed at all times in human societies. One prominent historian, William MacNeil, weaves an examination of this theme through his history of the world, The Rise of the West (University of Chicago Press, 1963). As he notes, transition from labor-intensive armament systems to capital-intensive armament systems has invariably been accompanied by a transfer of political power from a broad to a narrow base. Thus, the development of the chariot in the Second Millennium before Christ transferred military supremacy to the aristocracy which had the ability to invest capital in the construction of chariots, and, more expensively, the development and upkeep of powerful horses. MacNeil, op. cit. 104-05. Later, the discovery of steel smelting made possible the development of steel weapons by use of which the infantryman could overcome the aristocratic charioteers. Id. at 117-18. As a result, there was a transfer of power from the hands of the few to the hands of the many. "The abundance of iron had democratized warfare, so that extensive aristocratic empires no longer accorded with military realities." Id. at 125. The result in that time frame was increased political localism and a broadened egalitarian base. This thesis is not novel, having first been advanced by Aristotle, Aristotle, The Politics, pp. 248-49 (Penguin Books, Ed. T. D. Sinclair, Tr. 1962). See Appendix II for a further synopsis of the MacNeil thesis. It is no accident that democracy first became an accepted political theory in the days of the supremacy of the Greek hoplite and phalanx, nor that the great nation states of Europe were built when centralized military control was feasible.

B. The English Antecedents

Some authorities trace the development of the right to keep and bear arms back to the fryd existing in England in pre-conquest times and continuing in modified form as a supplement to feudal military tenure. See J. Whisker, Our Vanishing Freedom, Heritage House Publishers (1972). From the early principle that it was the obligation of citizenship to participate in the defense of the realm gradually developed, along with the nascent democratic doctrines of parliamentary government, a concomitant feeling developed that there was a "right" to participate in military activities. [bold added]

The political rights of Englishmen reached their testing ground during the turbulent Stuart dynasty and, by the end of that period, the recognition of a right to bear arms had clearly crystalized. When the new rulers, William and Mary, were called upon to issue the Bill of Rights of 1689, reasserting pre-existing rights of the English people, they provided:

That the subjects which are protestants, may have arms for their defence suitable to their conditions and as allowed by law.

I W & M Sess. c.2, § 9.

As the Tennessee court concluded in Aymette v. State, the provision intended that the citizenry "being armed they may as a body rise up to defend their just rights, and compel their rulers to respect the laws." 2 Humphr. (21 Tenn.) 154, 157 (1840).

What had occurred was that the Stuart Kings found their efforts to control Parliament frustrated by the existence of armed citizens, participants of "trained Bands," similar to the organized militia, which had been established under Elizabeth I. In fact, the struggle of Charles I to disband the "Trained Bands" by proclamation in 1642 was a significant element in the confrontation between the Long Parliament and the English monarchy. See Note: "The Right to Keep and Bear Arms; A Necessary Constitutional Guarantee or an Outmoded Provision of the Bill of Rights," 31 Alb. L. Rev. 74 (1967); Whisker, op. cit. at 2-4. After the Restoration, James II, by attempting to transform the standing army into a predominantly Catholic body again raised issues of the political nature of the right to keep arms, culminating in the Glorious Revolution of 1688 and the Bill of Rights. Feller & Getting, op. cit. supra, 48. The Tennessee Supreme Court summarized this episode as follows:

The evil that was produced by disarming the people in the time of James II was that the king, by means of a standing army quartered among the people, was able to overawe them, and compel them to submit to the most arbitrary, cruel, and illegal measures. Whereas, if the people had retained their arms, they would have been able, by a just and proper resistance to those oppressive measures, either to have caused the king to respect their rights, or surrender (as he was eventually compelled to do) the government into other hands.

Aymette v. State. 2 Humphr. (21 Tenn. ) 154, 157 (1840). Another source has commented upon the ignominy in which Englishmen, deprived of the means to protect themselves, looked to a foreign king and a foreign navy to rescue their rights. G. M. Trevelyan, 2 History of England 269-70 (Doubleday Anchor ed. 1952).

C. The Americam Experience

What history teaches was recognized as well by the constitutional framers: if the government were accorded a monopoly of force, liberty could not long be secured. If military power were kept diffused, political power could not be centralized into tyranny. In the debate surrounding the ratification of: our constitution, fears of a transfer of military power to the federal authority was one of the arguments raised against the new form of government. Speaking directly to that issue the Federalist Papers, James Madison, writing as Publius, responded to fears that the federal government could establish a standing army which would trammel the rights of the people. He said:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the Federal Government: still it would not be going too far to say that the state governments with the people on their side would be able to repel the danger.... To [the standing army] would be opposed a militia amounting to near half a million of citizens with arms in their hands... it may well be doubted whether a militia thus circumstanced could ever be conquered by such a proposition of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms will be most inclined to deny the possibility of it... Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

The Federalist Papers, No. 46, at p. 299 (Mentor Book Ed. 1961).

His last observation bears repeating: an autocratic government dares not trust its citizens with arms. Thus to Madison the right to keep and bear arms was implicit as part of the fundamental rights of citizenship and as an essential element of the checks on usurpations of power.

The colonial history of the country led the framers of the Constitution and of the Bill of Rights to be full cognizant of the importance of an armed citizenry for the protection of the citizens against their government. Just as Englishmen had struggled for the right to keep and bear arms through the centuries, finally to see it secured through the confrontation with the Stuart Kings, the colonists too had the question of control of arms pressed upon them in its direct relationship to their political rights. One of General Gage's early efforts was to deny gunpowder to the colonial militiamen. See Suffolk Resolves of Sept. 6, 1774, cited in Feller & Getting, op. cit. supra, fn. 11. The succeeding efforts of the English crown to seize control of the armaments and munitions stored by the Massachusetts Militia at Concord, was the proximate cause of the opening of military hostilities between the colonists and England, D. Higginbotham, The War of American Independence, p. 51, as was the confiscation of weapons of the inhabitants of Boston in 1775. See Note 31 AIb. L. Rev. 74 (1967). In the long military struggle which followed, it was undoubtedly only the fact that the Americans, unlike most popu1ar revolutionary movements in modern times, began in possession of a large military capability that tilted the balance in favor of freedom. D. Higginbotham, op. cit. supra at 10.

It is natural that these men, anxious to secure the blessings of freedom to future generations, should insist upon the right to keep and bear arms as a means of restraining the central government. So long as citizens retained the ability to resist, they believed, an oppressive government could not survive.

We might add that the very existence of the right to keep and bear arms undoubtedly serves as a strong deterrent against any inclination which a government may have toward oppression. Nor does the revolution in armaments in the last two centuries alter that deterrent. Our country's recent experience in Viet Nam has demonstrated the limits of power and proved that large scale weapons are not effective to wipe out individual resistance. [bold added] Closer to home, the unfortunate destruction of life and property in the core cities of our nation during the mid-1960s similarly illustrates that small handheld firearms are an effective means of protest, even rebellion, against a society which is seen to be oppressive. Such protests cannot be suppressed where there is widespread disaffection and can only be resolved by government policies which respond to legitimate grievances and thus isolate the disaffected members of society. The example is advanced to illustrate that the alternative of repression was not available to the government in the case of our urban crisis and that the government could not afford to adopt tactics which would alienate large groups. Were our government to become oppressive to any significant segment of the society, a disarmed populace would be helpless but an armed populace can, as Madison affirmed, rescue their rights from the hands of the oppressors. This, undoubtedly, is the "strong moral check" to which Mr. Story referred. (J. Story, II Commentaries on the Constitution 646 §1897 (5th Ed. 1891).) It forms the ultimate check and balance to our constitutional division of powers among three coordinate federal branches, 50 states, and the ultimate sovereign, the people.

D. The Right to Keep and Bear Arms Is An Individual Right

Dictum in early cases indicated that the adoption of the Second Amendment was not intended to confer or recognize a right of the individual but that it simply conferred an immunity from infringement by the federal government. Although that language would seem to have lost all force since decisions of the Supreme Court applying the Bill of Rights to the states, see, e.g., Palko v. Conn., 302 U.S. 319 (1937), it is occasionally still quoted. See Eckert v. Philadelphia, 477 F.2d 610 (3d Cir. 1973).

That the right to keep and bear arms was perceived by the framers as an individual right should be clear from the pre-revolutionary history of the right, and from its functional role in the political system. Moreover, it is strongly indicated from the fact that many of the original states provided for the right to keep and bear arms in their constitutions at the time that the Union was formed. Clearly the framers were concerned about protecting the right from infringement at any level of government.

The language of the Amendment itself is clearly directed at preservation of the right of individuals. It is not now arguable that the phrase "the right of the people" imports some collective right in the people as a body rather than an individual right. Certainly that was not the contemporaneous interpretation of the framers of the First Amendment ("the right of the people peaceably to assemble") or the Fourth Amendment ("the right of the people to be secure . . .") Mr. Justice Black has noted that the use of the words "the people" in other portions of the Bill of Rights strongly emphasizes the desire to protect individual liberty. H. Black, "The Bill of Rights," 35 N.Y.U. L.865, 871 (1960).

Nor is the introductory phrase of the Second Amendment, "a well-regulated militia, being necessary to the security of a free State," properly read as language of limitation. To the framers of the Constitution, the militia does not refer solely to an organized body. The Supreme Court has said:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states....

Presser v. Illinois, 116 U.S. 252, 265 (1886). The status of the unorganized militia is specifically recognized by the constitutions of many states. Plaintiff herein, for example, is a member of the militia of the State of Ohio pursuant to Article IX, Section 1 of the Constitution of that state. Since he is not enrolled in the militia, or what we would now call the National Guard, he is a member of the Sedentary Militia. He, like all citizens, is available to defend the liberties of the country when needed and is entitled to prepare himself for that mission.

Had the Second Amendment been perceived of solely as a guarantee of the right of the states to preserve their own militia, the amendment surely would have been written in a different manner. The Constitution provides that Congress shall have power "to provide for organizing, arming and disciplining the militia," though the appointment of officers and the authority of training the militia is reserved to the states. Article I, Section 8(16). The Congress reserves the right to provide for calling the militia to execute the laws of the Union. Article I, Section 8(15). And states are prohibited from maintaining troops in time of peace. Article I, Section 10(3). Had the intent of the Second Amendment been merely to insure that state governments retain control over their own militia to oppose the central government, the framers would surely have provided expressly for limitations upon the power of the central government over the state militia.

As the framers were well aware of the vulnerability of the organized militia to seizure by a central authority possessed with a standing army (the effort to seize the militia armaments and munitions at Concord stood forth as a clear warning) it is doubtful that they could have rested any faith in the efficacy of the Second Amendment to protect American liberties had they read its protections as limited solely to the organized militia of the states, which would be federalized as the first step of any oppressor. All of the language of Madison, of Story, of the framers of the Bill of Rights, indicates that the intent of the Second Amendment like the companion Amendments I through IX, was to secure individual liberties.

Hear Judge Cooley:

The meaning of the provision undoubtedly is, that the people from whom the militia must be taken [that is, those who are capable of bearing arms to defend the country against foreign invaders or domestic tyrants] shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.

T. Cooley, "The General Principles of Constitutional Law," 281-282 (1891, 2d ed.).

In the very debate surrounding the adoption of the Second Amendment the point was recognized:

Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late Revolution. They used every means in their power to prevent the establishment of an effective militia to the Eastward.

Speech of Elbridge Gerry, 1 Annals of Cong. 749-50 (1789).

E. There is a Right of Self Defense Recognized by Law and incorporated in the Second and Ninth Amendments to the U. S. Constitution

Independent of the military application of the right to keep and bear arms, there is a recognized right to keep and bear arms for self-defense. At the time of the adoption of the specific amendments of the Bill of Rights, there appears to have been some concern that the enumeration of certain rights might be construed to exclude other rights traditionally possessed in the Anglo-American system. To preclude that possibility, the Ninth Amendment was adopted, providing

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The right of the individual to use weapons in self defense is recognized in one form or another by the constitutions of 35 states (see Note, 31 Alb. L. Rev. 74, 80 (1967)), and generally by statutes elsewhere. For example, the Pennsylvania Bill of Rights adopted at that state's 1776 Constitutional Convention stated "that the people have a right to bear arms for the defense of themselves and the state..." Pa. Const. Art. XIII, (1776), (Emphasis added). That such a provision is so widespread is persuasive of its status as a recognized fundamental right of citizens. Implicit in the right to use a weapon is the right to possess it.

In these days of increasing crimes of violence, especially burglary and robbery, exercise of the right of self defense is the only recourse to many citizens.

F. Evidence Sustains the Constitutional Right in the Instant Case

Even if the opening clause of the Second Amendment is construed to limit the right to keep and bear arms to those arms the keeping of which and the proficiency in the use of which are pertinent to the military defense of the country from foreign invaders, rather than from domestic tyrants, evidence is substantial that our country's defense has been materially benefitted by the gunkeeping habits of our citizenry. For example, the Department of the Army has, since 1903, engaged in a program of loaning weapons to gun clubs and providing free ammunition. From 1959 to 1964 alone, ammunition costing $7 million was given to private gun clubs. In explaining this practice before the Senate Subcommittee to Investigate Juvenile Delinquency of the Committee of the Judiciary, the Secretary of the Army stated:

The real justification for this program from the point of view of the Army, in my judgment, would lie right there. I think past studies have shown that, in Korea, something less than 50. of the riflemen in combat fired at anything. Men who have some talent as marksmen are more liable to shoot at something than men who do not. The range of the weapon is extended in the hands of a marksman. We have a great interest in this. We still depend on the rifleman and his being able to shoot his rifle well. The fact that the recruit has been shooting squirrels as a boy enables him to be a better marksman when he comes into the army, and that is to our advantage.

Hearings before the Subcommittee to Investigate Juvenile Delinquency of the Committee of the Judiciary, U.S. Senate, p. 63, Testimony of Secretary of the Army, Steven Ailes (emphasis added).

...contributes significantly to the development of marksmanship proficiency and confidence in the ability to use a rifle effectively in combat on the part of those who participate in the program or benefit indirectly from it.

A. D. Little, Report to Department of the Army, 1966, p.15 (emphasis added). Without belaboring the point, it is clear that there is a demonstrable relationship between experience in the use of firearms and military proficiency. Had such evidence been in the record in United States v. Miller, that case could not have been so decided.

Although the right to keep and bear arms is granted by the Constitution, it does not necessarily follow that no legislation affecting that right can be sustained. There is a strong argument that the prohibitions are absolute, see H. Black, "The Bill of Rights," 35 N.Y.U. L. Rev. 865, 873 (1960). However, the alternative argument of a "balancing test" may also be applied. Just as libel laws have been held valid for the punishment of abusive free speech, so too laws for the abuse of the freedom of possession of firearms are undoubtedly valid. Thus, the right to keep arms may be denied to certain individuals, such as convicted felons, United States v. Tot, 131 F. 2d 261 (3d Cir. 1942), and is not necessarily infringed by laws prohibiting the bearing of concealed weapons without a license, Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) (dictum). Obviously certain types of uses may be prohibited and possession of certain "non-militia" or non-individual categories of weapons is not protected. Aymette v. State, 2 Humphr. (21 Tenn.) 154 (1840). See, e.g., 42 U.S.C. §2122 (possession of atomic weapons unlawful). One need not contend that there are no restrictions on the bearing of arms in order to contest the position that the right does not exist.

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III. The Trial Court Erred in Viewing This Case As a Valid Exercise of the Taxing Power.

After determining that the Second Amendment does apply to Warin's actions and affords him protection, the court turned to the power of Congress to enact taxes. The court said:

It is too late to attack the authority of Congress to pass the [National Firearms] Act in the exercise of its taxing power. The Supreme Court in Sonzinsky v. United States, 300 U.S. 506 (1937), upheld the provisions of the occupational tax on firearms dealers.... (Opinion, pg. 2).

Significantly, the court in Sonzinsky made no reference to the Second Amendment. The defendant there had no standing to assert a Second-Amendment claim. He was not asserting the right to possess weapons ("to keep and bear arms"), but the right to sell them; he was asserting the right to engage in business, as a dealer in firearms, without payment of a $200 license fee.

In the instant case, the court faces directly the issue of the constitutionality of a tax upon a non-commercial activity, the mere possession of a firearm not purchased in the marketplace, but manufactured by the defendant for his own purposes and not for resale. Central to Sonzinsky was that the defendant was taxed for "engaging in business" (26 U.S.C. §5801). Central to this case is that defendant Warm is being taxed for the exercise of his constitutional right of possessing a militia-type weapon.

To analogize, it is inconceivable that a tax could be imposed on First Amendment freedoms, such as a tax on going to church, a tax on the privilege of sending a petition to Congress, or a tax on the right to make a speech. By failing to draw a distinction between a tax or license on an unprotected commercial activity (Sonzinsky) and a tax on a direct exercise of a protected liberty (Warin) the trial court has reached the wrong result. The right to keep and bear arms "shall not be infringed." It cannot, therefore, be subjected to the requirement of a payment at the threshold. (See Moffett v. Killian, 360 F. Supp. 278 (D. Conn., 1973) ($35 license fee on right to petition state legislature is unconstitutional)).

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IV. It Has Been Argued That There Is No Infringement of the Right to Keep and Bear Arms in the Present Statute Since it "Merely" Requires Registration of Firearms

It is the position of Amicus that while such laws do not constitute total abridgment of the right to keep and bear arms, they do constitute a substantial infringement. What public purpose can be served, for example, by a gun registration act? Unless the government has the right to confiscate, it is an invasion of privacy to require owners to register their guns. Provisions of the present act establish a gun registration program. The fact of the matter is that any pervasive national gun registration program places the power to confiscate weapons in the hands of the central government. That latent power would be destructive of the passive right guaranteed by the Second Amendment.

It would be easy to set forth a "parade of horribles, under which the national system of gun registration, such as is established by the National Firearms Act, could be abused. Novels such as Come Ninevah, Come Tyre (A. Drury) and Seven Days in May (F. Knebel & C. Bailey) provide whatever imaginative scenarios one might wish. The experiences of other nations including the current national crisis in the world's largest democracy, India, the difficulties in Portugal where the clear vote of the populace is being disregarded by those possessing military power, and the resistance movements against Hitler by the Jews of Warsaw, (See They Fought Back, The Story of Jewish Resistance in Nazi Europe, Y. Suhl, ed., Crown Publishers, 1967), and by Hungarian, freedom-fighters against Soviet weapons, illustrate the potential threat to individual liberties which can occur. Unfortunately, recent revelations regarding activities of the U.S. Government, including the politicization of the Internal Revenue Service, the CIA, and the FBI show that we cannot assume that our nation is immune from such abuses of power.

If there is a right to possess militia-type weapons, as we assert, and if that right exists as a deterrent upon oppressive government as Mr. Justice Story declared, then the right is substantially chilled, if not defeated, by any registration scheme which makes arms vulnerable to a sudden confiscation program by the government.

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2. Second Amendment Foundation, Reply brief, Filed October 28, 1975