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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

Recent additions: NRA's amicus and Wash. Legal Foundation's amicus in Perpich v. DOD (1990); G. Washington's "Sentiments on a Peace Establishment;" Henry Knox, "A Plan for the General Arrangement of the Militia of the United States;" Houston v. Moore (1820), early militia case with opinion by Joseph Story; Texas v. White (1869), Supreme Court rules secession illegal.

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

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).

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

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.

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.

I The plain text and legislative history of the Second Amendment
demonstrate that the Amendment protects only the right to "bear Arms"
for the purpose of service in the "Militia," and does not prohibit
Congress from restricting firearm ownership unrelated to militia
service.

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).

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.

A. The framers of the Second Amendment understood the phrase
"bear Arms" to mean possess weapons for military use.

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 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

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.

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:

"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.").

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).

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

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 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).

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

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

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.

B. The "well regulated Militia" clause of the Second Amendment
shows that the Amendment establishes a "right to keep and bear
Arms" for use in the militia.

___________________________

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.

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.

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."

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.

C. James Madison's original draft of the Second Amendment and the
First Congress' revisions to that draft confirm that the
Amendment's framers intended to protect only possession of arms
related to militia service.

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

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

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.

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.

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

D. The debates surrounding proposal of the Second Amendment show
that the framers of the Amendment intended to prohibit the
federal government from disarming the states' militia and
manifested no intention to protect individual firearm ownership
unrelated to the militia.

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.")

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).

[TOP]
[HOMEPAGE].
[ARCHIVE]. Potowmack Institute Files
[RESOURCES]. Newspaper, magazine, journal articles, books, links

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

Recent additions: NRA's amicus and Wash. Legal Foundation's amicus in Perpich v. DOD (1990), G. Washington's "Sentiments on a Peace Establishment," Houston v. Moore (1820), early militia case with opinion by Joseph Story.

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

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