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David Yassky, Brooklyn Law School, filed this brief with the US Court of Appeals, Fifth Ciruit, as amicus curiae with 52 amici co-signing, September 3, 1999, in US v. Emerson.

The Potowmack Institute's amicus brief and other briefs in this case are provided at .../emeramic.html

The District Court's Opinion Memorandum is at http://www.txnd.uscourts.gov/PDFs/emerson.pdf

ARGUMENT

The Second Amendment (the "Amendment") reads: "A well regulated

Militia, being necessary to the security of a free State, the right of the people to

keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In United

States v. Miller, a unanimous Supreme Court held that the Amendment protects only

conduct bearing "some reasonable relationship to the preservation or efficiency of a

well-regulated militia." 307 U.S. 174, 178 (1939).

The District Court, however, declined to read Miller as controlling this case.

United States v. Emerson, Criminal No. 6:98-CR-103-C, slip. op. at 21-22 (N.D.

Tex. April 7, 1999) (hereinafter, "Slip. Op."). Relying instead on the work of a

small number of academic "individual rights theorists . . . [who] argue that the

amendment protects an individual right inherent in the concept of ordered liberty,"1.
_________________________

1. The individual rights theorists label their account of the Second Amendment the
"Standard Model," Slip. Op. at 5, which implies that it is espoused by the majority of
constitutional law scholars. Amici deny that this is the case. Perhaps because the Miller view of
the Second Amendment has been settled law for so long, few constitutional law scholars have
published analyses of the Amendment. Among those commentators who have addressed the
Amendment, several have advocated interpretations consistent with this Brief. See, e.g., Carl
Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998); Id. at
317 n.34 (citing sources); Dennis Henigan, Arms, Anarchy and the Second Amendment, 26 Val.
U.L. Rev. 107 (1991); John Dwight Ingram & Allison Ann Ray, The Right(?) to Keep and Bear
Arms
, 27 N.M.L. Rev. 491 (1997); cf. Laurence Tribe, 1 American Constitutional Law 902 (3d
ed. 2000) ("the academic debate over the scope of the Second Amendment is largely irrelevant to
contemporary gun control proposals, which . . . are plainly constitutional"); Akhil Reed Amar,
Second Thoughts, The New Republic, July 12, 1999 at 24 ("A modern translation of the
amendment might thus be: 'An armed and militarily trained citizenry being conducive to freedom,
the right of the electorate to organize itself militarily shall not be infringed.'"). Of particular

2

id. at 5, the District Court invalidated 18 U.S.C. § 922(g)(8) (the "Statute") without

any finding that the Statute interferes with the operation of states' militia. This

holding was erroneous.

The Second Amendment is about the allocation of military force. Those who

framed and ratified it intended to prevent the new central government from

disarming the states' militia. Because the Statute has no effect on the militia, it does

not violate the Second Amendment.

The District Court holding is contrary to the plain text and legislative history

of the Second Amendment. Following common usage, the framers of the Second

Amendment used the phrase "bear Arms" to refer to possession of weapons for

military use. The Amendment further specifies that its purpose is to protect the

states' "well regulated Militia."
_______________________

importance, historians specializing in the Founding period have rejected claims made by the
individual rights theorists as anachronistic. See Saul Cornell, Commonplace or Anachronism, 16
Const. Commentary 221 (1999); Don Higginbotham, The Second Amendment in Historical
Context
, 16 Const. Commentary 263 (1999), Michael A. Bellesiles, Suicide Pact: New Readings
of the Second Amendment
, 16 Const. Commentary 247 (1999); Garry Wills, To Keep and Bear
Arms
, N.Y. Rev. Books, Sept. 21, 1995, at 62; Michael Bellesiles, Gun Laws in Early America,
16 Law and History Review 567 (1998).

3

The legislative history of the Amendment confirms this reading. James

Madison's first draft of the Amendment was expressly limited to arms related to

"military service"; Congress' revisions to Madison's draft focused the Amendment

still more sharply on protecting the militia; and debate surrounding the Amendment

concerned not "an individual right implicit in ordered liberty," Slip. Op. at 5, but

rather ensuring that states would have armed militia available as a counterweight to

any standing army established by the new federal government.

The District Court claims that "[i]f the amendment consisted solely of its

independent clause, 'the right of the people to keep and bear Arms, shall not be

infringed,' then there would be no question whether the right is individual in

nature." Id. at 6. That claim is deeply anachronistic; only a modern reader could

understand the phrase "bear Arms" in the Second Amendment as referring to

individual gun ownership unrelated to military use.

The best evidence for the Second Amendment meaning of "bear Arms" is in

the original draft of the Amendment proposed in the First Congress by James

Madison: "The right of the people to keep and bear arms shall not be infringed; a

well armed, and well regulated militia being the best security of a free country: but

4

no person religiously scrupulous of bearing arms, shall be compelled to render

military service in person." Creating the Bill of Rights: The Documentary Record

from the First Federal Congress 12 (Helen E. Veit, Kenneth R. Bowling & Charlene

Bangs Bickford eds. 1991) (hereinafter, "Documentary Record"). In the last clause

of this version (the conscientious objector provision), Madison clearly used the

phrase "bearing arms" to refer solely to the possession of weapons for military use.

It is implausible to contend, as the District Court implicitly does, that virtually the

same phrase "bear arms" should have a different, much broader meaning

elsewhere in the very same sentence.

Madison's use of the phrase "bear arms" to refer to military activities is

echoed in other contemporary usages. See 6 Sources and Documents of United

States Constitutions 345 (William F. Swindler ed. 1976) (reprinting New Hampshire

Constitution of 1784: "No person who is conscientiously scrupulous about the

lawfulness of bearing arms, shall be compelled thereto, provided he will pay an

equivalent."); 1 The Debates in the Several State Conventions on the Adoption of

the Federal Constitution as Recommended by the General Convention at

Philadelphia in 1787, at 335 (Jonathan Elliott ed., 2d ed. 1891) (photo reprint,

William S. Hein & Co. 1996) (hereinafter, "Elliott's Debates") (reprinting

constitutional amendment proposed by Rhode Island's 1790 ratifying convention:

5

"That the people have a right to keep and bear arms; . . . That any person

religiously scrupulous of bearing arms ought to be exempted upon payment of an

equivalent to employ another to bear arms in his stead.").

Similarly, the Declaration of Independence charged King George with forcing

captive Americans to "bear arms against their country." 1 id. at 62. Searching a

Library of Congress database containing all official records of debates in the

Continental and U.S. Congresses between 1774 and 1821 reveals 30 uses of the

phrase "bear arms" or "bearing arms" (other than in discussing the proposed Second

Amendment); in every single one of these uses, the phrase has an unambiguously

military meaning. A Century of Lawmaking (visited July 29, 1999)

(http://lcweb2.loc.gov/cgi-bin/query). The Continental Congress, for example,

approved a prisoner exchange with the British conditioned on the returned prisoners

being forbidden to "bear arms" for a specified period, id. (reprinting Journal of the

Continental Congress, Tuesday, Nov. 7, 1780, page 1030), and the Twelfth

Congress debated legislation concerning prisoners taken "whilst voluntarily bearing

arms in the service of Great Britain," id. (reprinting Journal of the Senate,

Wednesday, Feb. 17, 1813, page 264).

These usages were standard at the time the Second Amendment was adopted.

The Oxford English Dictionary defines "to bear arms" as meaning "to serve as a

6

soldier, do military service, fight." 1 OED 634 (J.A. Simpson & E.S.C. Weiner eds.,

2nd ed. 1989) (hereinafter, "OED"). It defines "to bear arms against" as meaning

"to be engaged in hostilities with." 2 id. at 21. As an exemplary use of the phrase in

1769, the OED gives "An ample pardon . . . to all who had born arms against

him," and the exemplary use from 1609 is "He bare arms, and made weir against the

king." Id; see also Garry Wills, To Keep and Bear Arms, supra, (tracing etymology

of phrase bear arms and concluding that dominant meaning is military) ("To bear

arms is such a synonym for waging war that Shakespeare can call a just war 'just-

borne arms' and a civil war 'self-borne arms'").

The word "Arms" itself has a primarily military connotation. According to

the OED, the oldest established meaning of "arms" (other than as the plural of

"arm," meaning limb, and the now obsolete meaning of "armour, mail"), is

"[i]nstruments of offence used in war; weapons." 1 OED, supra, at 634. The OED

quotes a 1794 dictionary: "By arms, we understand those instruments of offence

generally made use of in war; such as firearms, swords, etc. By weapons, we more

particularly mean instruments of other kinds (exclusive of fire-arms), made use of as

offensive on special occasions." Id. (emphasis in original).

Accordingly, nineteenth-century judges had no trouble understanding that

"[t]he phrase 'bear arms' . . . has a military sense and no other . . . . A man in the

7

pursuit of deer, elk and buffaloes, might carry his rifle every day for forty years,

and, yet, it would never be said of him, that he had borne arms . . . ." Aymette v.

State, 21 Tenn. 154, 161 (1840) (interpreting Tennessee Constitution) (emphasis in

original); see also English v. State, 35 Tex. 473, 476 (1872) ("The word 'arms' in

the connection we find it in the Constitution of the United States refers to the arms

of a militiaman or soldier, and the word is used in its military sense."); Hill v.

Georgia, 53 Ga. 472, 475 (1874) ("the language of the constitution of this state as

well as that of the United States guarantees only the right to keep and bear the

'arms' necessary for a militiaman"); State v. Workman, 35 W. Va. 367, 373 (1891)

("in regard to the kind of arms protected by the [Second A]mendment, it must be

held to refer to weapons of warfare to be used by the militia"); City of Salina v.

Blaksly, 72 Kan. 230, 233 (1905) (both U.S. and Kansas Constitutions "appl[y]

only to the right to bear arms as a member of the state militia, or some other military

organization provided by law"); Ex parte Thomas, 21 Okla. 770 (1908) (interpreting

Oklahoma Constitution) ("As the object for which the right to keep and bear arms is

secured is of general and public nature, to be exercised by the people in a body, for

their common defense, so the arms, the right to keep which is secured, are such as

are usually employed in civilized warfare"); In re Rameriz, 193 Cal. 633, 651-52

(1924) ("An examination of the numerous authorities in various states will show that

8

the right to keep and bear arms as guaranteed by a state constitutional provision

similar to the federal amendment refers only to the bearing of arms by the citizens in

defense of a common cause"); cf. Joel Prentiss Bishop, Commentaries on the Law

of Statutory Crimes 497 (1873) (Second Amendment "protects only the right to

'keep' such 'arms' as are used for purposes of war . . . since such, only, are

properly known by the name of 'arms;' and such, only, are adapted to promote 'the

security of a free State.' In like manner, the right to 'bear' arms refers merely to the

military way of using

them. . . .); Lucilius Emery, The Constitutional Right to Keep and Bear Arms, 28

Harv. L. Rev. 473, 476 (1915) ("The single individual or the unorganized crowd, in

carrying weapons, is not spoken of or thought of as 'bearing arms.'").2.

___________________________

2. The presence of the word "keep" in the Second Amendment does not change the
Amendment's fundamentally military meaning. The language "keep and bear Arms" should be
understood as a single term of art, such as "arbitrary and capricious" or "willful, deliberate and
premeditated." To the extent that "keep" has an independent meaning in the Amendment, it
simply precludes a narrow reading of the Amendment that would protect only the possession of
firearms by persons actively engaged in militia duties (permitting, for example, the federal
government to require weapons to be stored in a central depository). By protecting the right to
"keep" as well as "bear" arms, the Amendment ensures that militiamen are able to store their
weapons at home, thus making militia disarmament more difficult.

9

Even if the Bear Arms Clause,3 standing by itself, could be read as

establishing a broad right to firearm possession unrelated to militia service, the

Second Amendment as the framers actually adopted it cannot be so read. "With

obvious purpose to assure the continuation and render possible the effectiveness of

such forces [i.e., the states' militia] the declaration and guarantee of the Second

Amendment were made. It must be interpreted with that end in view."

Miller, 307 U.S. at 178.

No court has ever held that the Well Regulated Militia Clause has any effect

independent of the Bear Arms Clause. Without an independent meaning, the Well

Regulated Militia Clause must be read to qualify and elaborate the Bear Arms

Clause. To do otherwise— as the District Court did— would be to render the Well

Regulated Militia Clause "mere surplusage." Marbury v. Madison, 5 U.S. 137, 174

(1803). As the Supreme Court of Georgia put it, interpreting an analogous state

constitutional provision: "[T]he object of the clause is declared to be to secure to the

state a well regulated militia. Has this declaration no significance? Is the clause to

be interpreted without reference to it? On the contrary, by the well settled rules for

the interpretation of laws, as well as by the dictates of common sense, the object ______________________

3. This Brief will refer to the language "A well regulated Militia, being necessary to the
security of a free State," as the "Well Regulated Militia Clause," and to the language "the right of
the people to keep and bear Arms, shall not be infringed" as the "Bear Arms Clause."

10

and intent of the law is the prime key to its meaning." Hill v. Georgia, 53 Ga. at

476. In the District Court's reading of the Amendment, by contrast, the Well

Regulated Militia Clause has no effect or purpose.

The drafting history of the Second Amendment confirms that its framers

sought only to create a right to "bear Arms" in connection with the states' "well

regulated Militia." Madison's initial draft ("The right of the people to keep and bear

arms shall not be infringed; a well armed, and well regulated militia being the best

security of a free country: but no person religiously scrupulous of bearing arms,

shall be compelled to render military service in person.") contained

not only early versions of the Well Regulated Militia Clause and the Bear Arms

Clause, but also a third clause concerning conscientious objectors. Documentary

Record, supra, at 12. This third clause, and the entire sentence as Madison wrote

it, is limited to the bearing of arms for "military service." If the Second Amendment

had been adopted as originally drafted by Madison, its scope would unmistakably

11

be limited to the possession of weapons for use in the militia.

As it happened, Congress removed the conscientious objector clause, but this

deletion should not change our understanding of the remaining language. Those

who objected to the clause argued that allowing federal judges to define

conscientious objector status would usurp the states' prerogative to determine

militia eligibility. Id. at 182-84. Virtually all of the recorded debate in the First

Congress on what became the Second Amendment concerned the conscientious

objector clause, and no participant in the debate expressed any concern about

individuals being denied the right to gun ownership.

Besides eliminating the conscientious objector clause, Congress made other

revisions to Madison's draft; each sharpened the Amendment's focus on assuring

the states' ability to maintain militia. First, Congress pushed the Well Regulated

Militia Clause to the front of the sentence; this deliberate rewriting shows Congress'

intention that the Amendment prevent threats to the militia, and not to arms

ownership generally.4 Second, Congress deleted "well armed" from the Well

_______________________

4. At the same time the congressional drafters switched the order of the clauses, they
inserted two unusual commas that further emphasize the framers' intention to prevent federal
interference with the militia. Under ordinary usage, the first and third commas in the Amendment
are unnecessary. If these commas had not been inserted, it would be possible to understand the
Well Regulated Militia Clause as simply explaining the rationale for the Bear Arms Clause (the
Amendment would then read: "A well regulated Militia being necessary to the security of a free
State, the right of the people to keep and bear Arms shall not be infringed."). But the commas are
in fact in the text proposed by Congress and ratified by the states, and they prevent this reading.

12

Regulated Militia Clause; the phrase was redundant, because the "Arms" protected

by the Amendment were precisely those used by the militia. Third, Congress

replaced "country" with "State" in the Well Regulated Militia Clause, showing the

concern of the drafters to protect states against an overweening federal government.5

The Second Amendment, like the rest of the Bill of Rights, was designed to

address concerns voiced in the debates over ratification of the Constitution in 1787

and 1788. Throughout these debates, Anti-Federalists charged that the proposed

_____________________

The first unusual comma— between "Militia" and "being"— forces the reader to search for a verb for which "Militia" is the subject. That verb does not appear until "shall not be infringed" near the end of the Amendment. The second unusual comma— between "Arms" and "shall"— sets off the
verb phrase "shall not be infringed" from the preceding language; it suggests that the subject for
this verb phrase is not simply "the right of the people to keep and bear Arms." The grammatical
effect of these two unusual commas is to link "A well regulated Militia" to "shall not be infringed"
to emphasize, in other words, that the goal of the Amendment is to protect the militia against
federal interference. The Constitution was drafted with great care, and (unlike much legal writing
from the Founding period) its use of punctuation generally conforms to modern conventions,
suggesting that the commas in the Second Amendment are not haphazard but rather deserve
scrupulous attention.

5. A fourth change, making "A well regulated Militia, being the best security of a free
State," into "A well regulated Militia, being necessary to the security of a free State," reflects the
framers' hostility to standing armies, which is discussed in Section I.D, infra. See Documentary
Record, supra, at 184 (statement of Elbridge Gerry in First Congress) ("Mr. Gerry objected to the
first part of the clause, on account of the uncertainty with which it is expressed: A well-regulated
militia being the best security of a free state, admitted an idea that a standing army was a
secondary one.")

13

Constitution would permit the establishment of "standing armies in time of peace."

2 The Complete Anti-Federalist 375 (Herbert J. Storing ed., 1981) (reprinting

Brutus' Essay II, which appeared in the New York Journal of November 1, 1787)

(hereinafter, "Complete Anti-Federalist"). Anti-Federalists feared that a would-be

tyrant might use a standing army— a corps of full-time, professional soldiers in the

pay of the President— to impose his will on the nation by force. See, e.g., 3 Id. at

164 ("A standing army ... may be made a fatal instrument to overturn the public

liberties; it may be employed to enforce the collection of the most oppressive taxes,

and to carry into execution the most arbitrary measures. An ambitious man who

may have the army at his devotion, may step up into the throne, and seize upon

absolute power.") (reprinting The Address and Reasons of Dissent of the Minority

of the Convention of Pennsylvania To Their Constituents); 2 Id. at 58 (standing

army is "engine of arbitrary power") (statement by Luther Martin to Maryland

General Assembly); 1 Elliot's Debates, supra, at 380 ("once a standing army is

established in any country, the people lose their liberty") (statement of George

Mason at Virginia ratifying convention).

Anti-Federalists sought to lessen this threat of tyranny by ensuring that

organized state militia would be available as a counterweight to any federal standing

army. To this end, they demanded a constitutional right to bear arms. See, e.g., 2

14

Complete Anti-Federalist, supra, at 341 (reprinting The Federal Farmer's Letter

XVIII) ("the Constitution ought to secure a genuine and guard against a select

militia by providing that the militia shall always be kept well organized, armed and

disciplined"); cf. The Federalist No. 46, at 299 (James Madison) (Clinton Rossiter ed.,

1961) ("Let a regular army, fully equal to the resources of the country, be

formed . . . 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."). Five state ratifying

conventions put these demands into formal proposals for constitutional amendments:

15

Textually, only New Hampshire's proposal suggests a right to ownership of

arms broader than that connected to military service.6 Madison and the First

Congress deliberately avoided this formulation, instead choosing to track the other

four proposals, which explicitly linked the proposed arms-ownership right to the

militia.7

If the District Court's account of the Second Amendment were correct— if the

Amendment was intended to protect arms ownership for its own sake, or for any

purpose desired by the owner— the ratification debates would be full of references
_____________________________

6. Of the five convention proposals, the District Court opinion quotes only New
Hampshire's. Slip. Op. at 16. The District Court also refers to proposals in the Pennsylvania and
Massachusetts conventions for broad arms-ownership rights. Id. at 15. These proposals were
rejected both within their own State ratifying conventions and by the drafters of the Second
Amendment.

7. While statements about drafters' intentions unavoidably involve speculation, the drafters
of the Second Amendment were certainly familiar with all of the state proposals, as well as state
constitutional provisions (some of which were worded more broadly than the Second
Amendment), and it is reasonable to infer that the decision to model the Amendment on the four
narrower state proposals rather than on New Hampshire's was deliberate. Moreover, it is clear
from the historical record that the First Congress approved the Bill of Rights in direct response to
demands made by the ratifying conventions; in a number of states, Federalist supporters of the
Constitution agreed to support a Bill of Rights in order to secure crucial votes for ratification.
Murray Dry, The Case Against Ratification, in The Framing and Ratification of the Constitution
(Leonard Levy & Dennis Mahoney eds. 1987) at 287.

16

to the virtues of arms ownership, or to frontier-dwellers' need to protect themselves,

or to rural Americans' need to hunt game. That is simply not the case. The Anti-

Federalists offered no purpose for the Second Amendment other than the perceived

danger of standing armies. Jonathan Elliot's records of the debates in the ratifying

conventions contain at least 80 pages of discussion concerning standing armies and

the militia, 1 Elliot's Debates, supra, at 88, 371-72; 2 Id. at 96-99, 406, 520-522,

531, 536-37, 3 Id. at 378-94, 400-03, 405-31, 440-41; 4 Id. at 97-100, 214-15, 260-

62; 5 Id. at 127, 440, 443-44, 451, 464-67, 480, and not a single reference to the

need to bear arms for any purpose other than militia service. Similarly, the index to

Herbert Storing's The Complete Anti-Federalist— the most comprehensive

collection of Anti-Federalist writings— lists 76 references to "standing armies." 7

Complete Anti-Federalist, supra, at 94-95. That same index shows only 2

references to a "right to bear arms," 7 Id. at 9; both of these are descriptions of a

proposal by Anti-Federalist delegates to the Pennsylvania ratifying convention for an

amendment protecting the right to bear arms for, among other purposes, "killing

game." Again, this proposal was rejected both by the Pennsylvania convention

itself and by the drafters of the Second Amendment.8 Strengthening the militia and
____________________

8. The Pennsylvania proposal— which is contained in one of the most important Anti-
Federalist documents and is the only recorded entry in the ratification debates to offer
unambiguously a purpose for the right to bear arms other than protecting the militia— reads in its

17

guarding against the danger of a standing army were the purposes of the Second

Amendment, not enabling individuals to own guns for their own private ends.

The District Court seeks to convert the right of militiamen to be armed into a

right of all individuals to be armed by claiming that "under prevailing practice [at

the time the Second Amendment was adopted] the militia included all people," Slip.

Op. at 13, and proceeding to conclude that "[b]ecause all were members of the

militia, all enjoyed the right to individually bear arms to serve therein." Id. These
_______________________

entirety as follows:

3 Complete Anti-Federalist at 151. This proposed amendment by itself refutes the District
Court's opinion. Its breadth shows the comparative narrowness of the Second Amendment.
First, the Pennsylvania proposal's protection of the right to bear arms "for the purpose of killing
game" is unlike every state constitution of its time and every other proposal for amending the
federal Constitution. The fact that the Pennsylvania Minority felt the need to specify the reach of
their proposal suggests that "killing game" would not otherwise have been considered material to
the right to bear arms. Second, the Pennsylvania proposal prohibited disarming either "the
people" or "any of them." By contrast, the Second Amendment speaks only of "the people" in
their collective capacity as militiamen. Finally, even this very broad proposal would have still
permitted the federal government to disarm "individuals" posing a "real danger of public injury"—
just as Congress did in this case by seeking to disarm those who pose a demonstrable threat of
harming others.

18

claims contain two serious historical blunders.

In the first place, the District Court mistakenly accepts the myth that

Revolutionary-era militia service was universal. In addition to excluding women

and African-Americans, every state imposed numerous limitations on militia service

and firearm possession. Michael Bellesiles, Gun Laws in Early America, supra, at

587. Pennsylvania enacted a stringent loyalty oath that disarmed "as much as forty

percent of the citizenry." Saul Cornell, Commonplace or Anachronism, supra, at

228.

Second, the reason that most white men enjoyed a Second Amendment right

in 1791 was not simply because they were American citizens, but because their

states had chosen to include them in the militia. The fact that Founding-era militias

included most white men does not mean that the Founders intended the Second

Amendment to benefit all men in their individual capacities.

Even for those Founders who believed in universal militia service, "militia"

was not simply a synonym for "all men." John Adams express the distinction

between arms-bearer-as-individual and arms-bearer-as-militiaman:

19

6 Works of John Adams 197 (C. Adams ed. 1851). A group of men did not become

a "militia" until they were organized by the state to serve the common defense. See

4 Elliot's Debates, supra, at 424 ("If we are, then, to govern the militia,

it must be such men as the particular states have declared to be militia.") (statement of Rep.

Williamson); see also Marguerite Driessen, Private Organizations and the Militia

Status, 1998 B.Y.U.L. Rev. 1, 7-8 ("[L]egitimate militias were organized by the

State. Being a member of a militia was not something an individual conferred upon himself.").9

This understanding of the militia was written into the Constitution, which

specifically recognized that only the states had authority to "Appoint[] . . . the

Officers" of their militia"; individual citizens could not deem themselves militiamen.
______________________

9. Recognizing that the Second Amendment protects participation only in organized state
militia does not entail, as the District Court claims it would, turning the right to bear arms into a
"collective right held by the states." Slip. Op. at 10. Indeed, the District Court's analytic
dichotomy between a "'states' rights' or 'collective rights' school [of thought on the Second
Amendment] and the 'individual rights' school," Id. at 6, is a red herring. The Second
Amendment certainly grants an "individual right" in the sense that an individual can rely on the
Second Amendment to challenge a statute that harms him or her. But the fact that individual
Americans benefit from the Second Amendment, and can invoke the judicial power to strike down laws under the Second Amendment, says nothing about the scope of the right created by the Amendment. The issue in this case is not whether Appellee has standing to raise a Second
Amendment claim; the issue is whether the Amendment protects Appellee's possession of a
firearm under any circumstances, regardless of its lack of connection to militia service. The text
and history of the Second Amendment make it clear that the Amendment's scope is not nearly so
broad.

20

U.S. Const. Art. I, § 8, cl. 16. The text of the Second Amendment itself disallows

any equation between the militia and all American citizens in their individual

capacities. The Amendment does not use the simple word "Militia," but the phrase

"well regulated Militia."

The Founders' ideology of the militia was borne out in practice. In 1787,

four states sent their militia to quell Shays' Rebellion in Massachusetts. The

framers of the Second Amendment did not see Daniel Shays and his followers as

"militia"— they were insurrectionaries pursuing a private interest (debt relief) and

had no claim to public protection. See generally David Szatmary, Shays Rebellion

(1980).

Seven years later— after adoption of the Second Amendment— President

Washington sent militia to put down the Whiskey Rebellion in Pennsylvania. No

one in 1794 would have suggested that rebellious Pennsylvania farmers were a

"militia" protected by the Second Amendment, nor is there any evidence that the

rebels invoked the Second Amendment. Michael Bellesiles, Suicide Pact, supra, at

256. The actions of the rebels were attacked by both leading Federalists and former

Anti-Federalists. See Thomas Slaughter, The Whiskey Rebellion 190-204 (1986);

Saul Cornell, Commonplace or Anachronism, supra.

By guaranteeing the right of militiamen to be armed, the Founders intended to

21

preserve organized, state-based militias; they did not seek to empower individuals

or small groups of disaffected citizens to take up arms against the established order.

The District Court identified the 1689 English Bill of Rights as an important

historical precedent for our Bill of Rights. Slip. Op. at 8-9. To the extent British

history is relevant to the Second Amendment, however, it undermines the District

Court's holding.

The English Bill of Rights resulted from a 60-year struggle for power between

the largely Protestant Parliament and a succession of Stuart kings allied with

Catholic interests. Parliament finally won the conflict, installing a Protestant king

and adopting a Bill of Rights containing the following: "Whereas the late King

James II did endeavor to subvert and extirpate the Protestant religion and the laws

and liberties of this kingdom . . . by raising and keeping a standing army within this

kingdom in time of peace without consent of parliament and ... by causing several

good subjects being Protestants to be disarmed at the same time when papists were

both armed and employed contrary to law, ... [we] declare ... that the raising or

22

keeping a standing army within the kingdom in time of peace, unless it be with

consent of parliament, is against law; that the subjects which are Protestants may

have arms for their defense suitable to their conditions and as allowed by law...."

Sources of English Constitutional History 600-01 (Carl Stephenson & Frederick

George Marcham eds., 1937).

These provisions were designed to ensure a feudal militia in which each lord

commanded men-in-arms from the areas under his dominion. The Stuart kings had

wanted a centralized militia with officers appointed by the king. Compare Id. at 486

(reprinting Militia Ordinance of 1642) with Id. at 541 (reprinting Militia Act of

1661). Thus the guarantee was limited to Protestants, and it applied only to arms

"suitable to their conditions" (meaning status in the feudal hierarchy). It explicitly

recognized the numerous common law and statutory restrictions on gun possession

which existed both before and after adoption of the English Bill of Rights. See

Michael Bellesiles, Gun Laws in Early America, supra, at 571-73. The purpose of

the English Bill of Rights was not to protect individual British citizens' rights to

own weapons but to guarantee that Parliament's noblemen would be able to field

armed forces independent of the crown— a concern directly analogous to that of the

American Anti-Federalists who sought to prevent the new central government from

monopolizing military force.

23

The Statute invalidated by the District Court prohibits any person subject to a

certain type of restraining order from possessing a firearm. This Statute does not

interfere with the states' militia, and therefore cannot be said to violate the Second

Amendment. Cf. Fraternal Order of Police v. United States, 173 F.3d 898 (D.C.

Cir. 1999) ("We suppose Miller would be met by evidence supporting a finding that

the disputed rule would materially impair the effectiveness of a militia, though

perhaps some other showing could suffice. We need not fix the exact form of the

required relationship, however, because FOP has presented no evidence on the

matter at all.")

At the outset, Amici note that even if this Court deems the Statute to burden a

Second Amendment interest by interfering with the militia, the statute would still not

automatically be invalid. Rather, this Court would then have to determine what

level of government interest would justify imposition on the Second Amendment

right, and whether the Statute meets the appropriate standard.

In this case, however, no analysis of the government interest is required

because the Statute imposes no Second Amendment harm. Under federal law, the

"organized militia [of the United States] . . . consists of the National Guard and the

24

Naval Militia." 10 U.S.C. § 311(b)(1); see also Perpich v. Dept. of Defense, 496

U.S. 334 (1990). In addition, Appellee's home state of Texas maintains a volunteer

force known as the Texas State Guard, which "exists as part of the state militia

under the Second Amendment to the United States Constitution." Tex. Gov't Code

Ann. § 431.051. The Statute does not apply to possession of weapons by people

serving in the National Guard, the Naval Militia or the Texas State Guard. See 18

U.S.C. § 925(a)(1) ("The provisions of this chapter [which includes the Act] . . .

shall not apply with respect to the . . . possession . . . of any firearm or ammunition

imported for, sold or shipped to, or issued for the use of, the United States or any

department or agency thereof or any State or any department, agency, or political

subdivision thereof.")

Even if the Statute were held to apply to active members of the National

Guard, the Naval Militia or the Texas State Guard, it could not be considered to

burden a protected Second Amendment interest. The only conceivable burden

would be that persons prohibited by the Statute from possessing weapons would be

unable to serve in a militia entity. For several reasons, this does not constitute

interference with the militia.

First, people prohibited from possessing weapons can still serve the militia in

other capacities. Second, the Statute disables a very small number of people from

25

possessing weapons; its impact on the available pool of militia members is de

minimus. Third, the disability imposed by the Statute is temporary; it vanishes once

the triggering protective order lapses. In this case, moreover, the protective order

that subjected Appellee to the Statute's prohibitions was issued by a Texas court. If

in fact Appellee would be ineligible for service in the Texas National Guard or the

Texas State Guard during the period he is prohibited by the Act from possessing

weapons, this ineligibility was caused by Texas itself.

Finally, there is no indication in the record that Appellee serves in any militia

entity. The National Guard, the Naval Militia and the Texas State Guard are the

only entities that can possibly be considered to constitute the Texas militia. Texas

law specifically prohibits "private" militias. Tex. Gov't Code Ann. § 431.010;

Vietnamese Fisherman's Association v. Ku Klux Klan, 543 F. Supp. 198, 210 (S.D.

Tex. 1982) (Texas Ku Klux Klan not a protected militia under Second Amendment).

The temporary denial of firearm possession to an individual who is not

affiliated in any way with the National Guard or any other organized state militia

simply cannot count as a Second Amendment harm.

26

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APPENDIX A - LIST OF AMICI
This Brief is submitted on behalf of the following individuals, and

not on behalf of any of the institutions with which these individuals

are affiliated (institutional affiliations [omitted here] are provided for

identification purposes only):

Bruce Ackerman
Joyce Appleby
Jack M. Balkin
Michael Bellesiles
Adele Bernhard
Ruth Bloch
Carl T. Bogus
Frank Bowman
John Brooke
Chandos Michael Brown
Darryl Brown
Edwin G. Burrows
Andrew Cayton
Erwin Chermerinsky
Saul Cornell
Edward Countryman
John DiPippa
Michael Dorf
Norman Dorsen
David Dow
Susan R. Estrich
Heidi Li Feldman
Hendrik G. Hartog
Bruce Hay
Don Higginbotham
Peter Charles Hoffer
Nancy Isenberg
Sheri L. Johnson
Stanley N. Katz
Arthur LaFrance
Jan Lewis Newark
Jill Lepore
Rory K.Little
Mari J. Matsuda
Andrew J. McClurg
Frank Michelman
Dawn Nunziato
Michael Perlin
Carl Prince
Norman L. Rosenberg
Malinda L. Seymore
Peter Shane
Billy G. Smith
Peter J. Strauss
Richard Uviller
Spencer Weber Waller
Eldon D. Wedlock, Jr.
Leila Sadat Wexler
Welsh S. White
Steve Winter
David Yassky
Michael Zuckerman


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