UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA
TIMOTHY JOE EMERSON
On Appeal from the United States District Court for the Northern District of Texas, San Angelo Division
BRIEF SUPPORTING APPELLEE OF AMICUS CURIAE ACADEMICS FOR THE SECOND AMENDMENT
Of Counsel: George M. Strickler, Jr. Professor Nelson Lund 48 Allard Boulevard 11419 Lilting Lane New Orleans, LA 70119 Fairfax Station, VA 22039 (504) 865-5908 (703) 250-1218 LA State Bar No. 12536 Counsel for Amicus Curiae
TABLE OF CONTENTS
Statement of Interest and Identity of Amicus Curiae
Academics for the Second Amendment ...........................................iii
List of Additional Signatories of this Brief ........................................iv
Table of Authorities ......................................................................xix
Summary of Argument ....................................................................1
I. The text of the Second Amendment protects the
right of individual citizens to keep and bear arms .............................4
A. The meaning of the word "militia" ...............................................5
B. The Militia Clauses of Article I ...................................................8
C. The debates over ratifying the Constitution
set the stage for the Second Amendment .......................................10
D. The text of the Second Amendment accurately reflects
the contribution that an armed citizenry can make to a
well regulated militia .....................................................................12
II. The legislative history of the Second Amendment
confirms that it protects the right of individuals to
keep and bear arms ......................................................................15
III. The "states' right" interpretation of the
Second Amendment leads to absurd consequences ......................19
IV. The Yassky Brief misconstrues the language of the
Second Amendment and distorts the relevant legislative history ....21
V. The fundamental importance of the individual right to
keep and bear arms has not been nullified by
subsequent historical events ......................................................24
VI. The arbitrary disarmament of American citizens
violates the Second Amendment ...............................................28
Certificate of Service ...............................................................30
Certificate of Compliance ........................................................31
STATEMENT OF INTEREST AND IDENTITY OF AMICUS CURIAE ACADEMICS FOR THE SECOND AMENDMENT
ACADEMICS FOR THE SECOND AMENDMENT is an IRC sec. 501(c)(3) nonprofit corporation headquartered in St. Paul, Minnesota. The organization fosters open, rigorous discussion of the constitutional right to keep and bear arms. Many but not all of the signatories of this brief--who include scholars in the fields of law, humanities, and the social sciences--are members of Academics for the Second Amendment.
List of Additional Signatories of this Brief
(Organizations are listed for identification purposes only)
Donald L. Alexander
Western Michigan University
History and American Studies
University of Washington, Tacoma
Larry P. Arnn
Brigham Young University
Randy E. Barnett
University of Maryland
Bruce L. Benson
Florida State University
David T. Beito
University of Alabama
David J. Bordua
University of Illinois at Urbana-Champaign
John W. Bowman
Police Training Institute
University of Illinois
David M. Brasington
Kingsley R. Browne
Wayne State University
Stanley C. Brubaker
Robert A. Carter
Rutgers-Newark Law School
C. David Channell
Business and Economics
William Carey College
J. Bradford Churchill
University of Colorado at Boulder
John P. Cochran
Metropolitan State College of Denver
Lloyd R. Cohen
George Mason University
James M. Collins
Director, School of Management
University of Alaska Fairbanks
Robert J. Cottrol
Law and History
George Washington University
Preston K. Covey
Center for the Advancement of Applied Ethics
Carnegie Mellon University
John W. Danford
Loyola University Chicago
Raymond T. Diamond
Jan E. Dizard
Steven J. Eagle
George Mason University
John C. Eastman
Director of the Claremont Institute Center
for Constitutional Jurisprudence
Edward J. Erler
California State University, San Bernardino
Economics and Finance
California State University, Bakersfield
F. Smith Fussner
Janice J. Gabbert
Wright State University
Todd F. Gaziano
Stephen G. Gilles
Quinnipiac College School of Law
University of Alaska
University of North Carolina at Pembroke
J. Daniel Hammond
Wake Forest University
Francis F. Hawley
Western Carolina University
David R. Henderson
David M. Henneberry
Assistant Dean For International Programs
Oklahoma State University
University of Southern California
Ronald A. Howard
and Operations Research
Eastern Illinois University
Lester H. Hunt
University of Wisconsin, Madison
Scott C. Idleman
Central Washington University
D. Bruce Johnsen
George Mason University
David L. Kaserman
Don B. Kates
Raymond G. Kessler
Sul Ross State University
Bruce H. Kobayashi
George Mason University
Alan Charles Kors
University of Pennsylvania
Michael I. Krauss
George Mason University
David N. Laband
Edward F. Leddy
Sociology and Criminology
Saint Leo University
Robert A. Levy
Charles H. Logan
University of Connecticut
Roderick T. Long
Tibor R. Machan
Gregory E. Maggs
George Washington University
Joyce Lee Malcolm
Security Studies Program
Massachusetts Institute of Technology
Law and History
James Ross McCown
Florida Atlantic University
Edwin Meese III
75th Attorney General of the United States
J. Mitchell Miller
University of South Carolina
Gary B. Mills
University of Alabama
Carlisle E. Moody
College of William and Mary
James E. Moore, II
Public Policy & Management
University of Southern California
Constitutional Law and Government
University of Georgia
David B. Mustard
Economics and Business
University of Georgia
University of Montana
Joseph P. Olson
James R. Otteson
University of Alabama
Carol K. Oyster
University of Wisconsin at La Crosse
Daniel C. Palm
Azusa Pacific University
Jeffrey S. Parker
George Mason University
Mark J. Perry
University of Michigan-Flint
Ronald J. Pestritto
University of Dallas
University of Alaska
Daniel D. Polsby
George Mason University
University of Colorado
Lucas A. Powe, Jr.
University of Texas
Paul A. Rahe
University of Tulsa
Douglas B. Rasmussen
St. John's University
Loyola University (New Orleans)
Arnold W. Reitze, Jr.
George Washington University
Glenn Harlan Reynolds
University of Tennessee
Larry E. Ribstein
George Mason University School of Law
Charles K. Rowley
George Mason University
General Director of the Locke Institute
Social and Policy Sciences
University of Texas at San Antonio
William A. Schroeder
Southern Illinois University
University of Dayton
Gerald W. Scully
Economics, School of Management
University of Texas at Dallas
William F. Shughart II
School of Business Administration
University of Mississippi
Robert Barr Smith
University of Oklahoma
Larry D. Soderquist
Harvard University (visiting)
Andrew C. Spiropoulos
Oklahoma City University
Allan C. Stam
Mary Zeiss Stange
Philosophy & Religion
Loyola University Chicago
Timothy D. Terrell
William Van Alstyne
David E. Vandercoy
University of California at Los Angeles
Bradley C. S. Watson
Fellow in Politics and Policy
Center for Economic and Policy Education
Saint Vincent College
Vice President and Dean of the College
John T. Wenders
University of Idaho
Thomas G. West
University of Dallas
Samuel C. Wheeler III
University of Connecticut
James B. Whisker
West Virginia University
Keith E. Whittington
Richard G. Wilkins
Brigham Young University
Arthur E. Wilmarth, Jr.
George Washington University
Laurin A. Wollan, Jr.
Criminology and Criminal Justice
Florida State University
Todd J. Zywicki
George Mason University
TABLE OF AUTHORITIES
Constitutional and Statutory Provisions
10 U.S.C. § 311 ..............................................................7
18 U.S.C. § 922(g)(8) ................................................1, 28
Act of May 8, 1792, 1 Stat. 271 ("First Militia Act") .........7
Articles of Confederation art. VI, 4 .................................6
Pa. Const. of 1776 ........................................................22
U.S. Const. art. I, § 8, cl. 12 .......................................6, 8
U.S. Const. art. I, § 8, cl. 14 ...........................................6
U.S. Const. art. I, § 8, cl. 15 ..................................6, 8, 25
U.S. Const. art. I, § 8, cl. 16 ..................................6, 8, 20
U.S. Const. art. I, § 10, cl. 3 ......................................6, 20
U.S. Const. amend. II ............................................passim
DeShaney v. Winnebago County Dep't of Social Servs.,
489 U.S. 189 (1989) ..................................................................27
Perpich v. Department of Defense,
496 U.S. 334 (1990) ..................................................................20
Address and Reasons of Dissent of the Minority of the
Convention of the State of Pennsylvania
to their Constituents (Dec. 18, 1787) ....................................................22
Akhil R. Amar,The Bill of Rights as a Constitution,
100 Yale L.J. 1131 (1991) ....................................................................15
Randy E. Barnett & Don B. Kates, Under Fire: The New
Consensus on the Second Amendment, 45 Emory L.J. 1139 (1996) ....2, 3
William Blackstone, Commentaries .....................................................24
The Complete Anti-Federalist (Herbert J. Storing, ed. 1981) ................11
The Complete Bill of Rights: The Drafts, Debates,
Sources, and Origins (N. Cogan, ed., 1997) ......................16, 17, 18, 19
Robert J. Cottrol & Raymond T. Diamond,
The Second Amendment: Toward an Afro-Americanist
Reconsideration, 80 Geo. L.J. 309 (1991) ..........................................26
The Documentary History of the Ratification of the
Constitution (M. Jensen ed., 1976) ....................................................22
Max Farrand, Records of the Federal Convention (1911) ...............9, 11
The Federalist No. 46 (C. Rossiter ed., 1961) ...................................12
Stephen P. Halbrook, That Every Man Be Armed:
The Evolution of a Constitutional Right (1984) .................................18
Stephen P. Halbrook, Target Switzerland: Swiss Armed
Neutrality in World War II (1998) ....................................................26
David T. Hardy, The Second Amendment and the
Historiography of the Bill of Rights, 4 J.L. & Pol. 1 (1987) ..............23
Don B. Kates, Jr., Handgun Prohibition and the Original
Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983) ....24
Don B. Kates, Jr., The Second Amendment and the Ideology of
Self-Protection, 9 Const. Commentary 87 (1992) ..............................25
Gary Kleck, Targeting Guns: Firearms and their Control (1997) .....27
Gary Kleck & Marc Gertz, Armed Resistance to Crime:
The Prevalence and Nature of Self-Defense with a Gun,
86 J. Crim. L. & Criminology 150 (1995) .........................................27
David B. Kopel, The Second Amendment in the
Nineteenth Century, 1998 B.Y.U. L. Rev. 1359 ...........................3, 18
Sanford Levinson, The Embarrassing Second Amendment,
99 Yale Law Journal 637 (1989) .......................................................26
Leonard W. Levy, Origins of the Bill of Rights (1999) .......................3
John R. Lott, Jr. & David B. Mustard, Crime, Deterrence, and the
Right-to-Carry Concealed Weapons, 26 J. Leg. Studies 1 (1997) ......27
Nelson Lund, The Past and Future of the
Individual's Right to Arms, 31 Ga. L. Rev. 1 (1996) .........................13
Nelson Lund, The Ends of Second Amendment Jurisprudence:
Firearms Disabilities and Domestic Violence Restraining Orders,
4 Tex. Rev. L. & Politics 157 (1999) ...............................................28
Joyce Lee Malcolm, To Keep and Bear Arms:
The Origins of an Anglo-American Right (1994) ..............................7
Luther Martin, The Genuine Information, delivered to the
Legislature of the State of Maryland, relative to the
Proceedings of the General Convention, held at
Philadelphia, in 1787 (Nov. 29, 1787) ...........................................11
Papers of James Madison (Charles F. Hobson et al., eds. 1979) ......16
Papers of Thomas Jefferson (J.P. Boyd, ed. 1950) ............................22
Daniel D. Polsby, The False Promise of Gun Control,
Atlantic Monthly, at 57, March 1994 .................................................27
L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation,
38 Wm. & Mary L. Rev. 1311 (1997) ...............................................12
Glenn Harlan Reynolds & Don B. Kates,
The Second Amendment and States' Rights:
A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995) .........20
Laurence H. Tribe, 1 American Constitutional Law (3d ed. 2000) .....3
Laurence H. Tribe, American Constitutional Law (2d ed. 1988) ........3
Laurence H. Tribe & Michael C. Dorf,
On Reading the Constitution (1991) .................................................3
William Van Alstyne, The Second Amendment and the
Personal Right to Arms, 43 Duke L.J. 1236 (1994) ..........................28
David E. Vandercoy, The History of the
Second Amendment, 28 Val. U. L. Rev. 1007 (1994) ........................6
Eugene Volokh, The Commonplace Second Amendment,
73 N.Y.U. L. Rev. 793 (1998) .........................................................5
James B. Whisker, The Rise and Decline of the
American Militia System (1999) ....................................................22
SUMMARY OF ARGUMENT
Appellee Emerson and Amicus Curiae Attorney General of Alabama persuasively argue that 18 U.S.C. § 922(g)(8)(C)(ii) can be interpreted to require a judicial finding of dangerousness before the statute's automatic firearms disability is triggered. Because the Second Amendment does not permit the arbitrary infringement of an individual's right to keep and bear arms, the Government's interpretation of the statute renders it unconstitutional. Accordingly, the Government's interpretation should be rejected.
This brief will summarize the main arguments and evidence underlying the strong academic consensus in favor of interpreting the Second Amendment to protect the fundamental, individual right to keep and bear arms, with special attention to the contrary claims presented to this Court in the Brief for an Ad Hoc Group of Law Professors and Historians as Amici Curiae in Support of Appellant ("Yassky Brief"). The arguments that we make here have been thoroughly explored in the academic literature over the course of many years, and it is telling that the Yassky Brief avoids confronting those arguments.
Modern scholarship has established beyond any reasonable doubt that the Second Amendment protects an individual right to keep and bear arms, not some sort of "collective" or "state" right to maintain formal military organizations. Indeed, the arguments and evidence that support this conclusion are so overwhelming that commentators who wish to dispute it avoid confronting those arguments and evidence. Instead, they rely on misleading and irrelevant historical data, inapposite judicial opinions, and sometimes on outright sophistries. The inexorable power of the arguments in favor of the individual-right interpretation has persuaded scholars from all points on the political spectrum, including those who embrace a variety of interpretive theories. (1) Even Professor Laurence Tribe, a long-time proponent of the states' right theory, has now unequivocally acknowledged that the Second Amendment protects the right of individual citizens to keep and bear arms:
[The Second Amendment's] central purpose is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action. (2)
Similarly, distinguished legal historian Leonard W. Levy has concluded that there is simply no doubt about the personal nature of the rights protected by the Second Amendment: "Believing that the amendment does not authorize an individual's right to keep and bear arms is wrong.The right to bear arms is an individual right." (3)
The conclusion at which Professors Tribe and Levy have arrived is supported by a very large body of scholarship. (4) The following discussion will briefly summarize the principal arguments that underlie this strong scholarly consensus. These arguments are based on the Constitution's text, and on historical evidence about the texts's meaning.
I. The text of the Second Amendment protects the right of individual citizens to keep and bear arms.
The Second Amendment unambiguously protects "the right of the people" to keep and bear arms. This is exactly the same phrase used in the First and Fourth Amendments, where it indubitably refers to individual rights. All three amendments were framed at the same time, along with the Tenth Amendment, which expressly distinguishes between "the people" and "the states." Thus, the framers of the Amendment clearly chose to protect a right of individuals, not a right belonging to the states.
Were there any basis for the states' right theory, it would have to arise from the Second Amendment's prefatory phrase, "A well regulated Militia, being necessary to the security of a free State . . ." This phrase, however, cannot be read to alter the meaning of the Amendment's operative clause, which provides that "the right of the people to keep and bear Arms, shall not be infringed." First, the grammatical structure of the Amendment clearly indicates that the prefatory phrase serves only an explanatory purpose. It is certainly true that the Constitution implies that it protects the right of the people to keep and bear arms because a well-regulated militia is necessary to the security of a free state. But it is equally true that the Constitution does not say or imply that this right of the people is protected only to the extent that some government agency (such as Congress or the courts) believes that the right fosters a well-regulated militia. If that were its meaning, the Second Amendment should have provided: "A well regulated Militia, being necessary to the security of a free State, the right of the Militia to keep and bear arms shall not be infringed." But the Constitution does not say this. On the contrary, the Second Amendment clearly distinguishes "the people" from the "militia." The framers, moreover, were familiar with dozens of state constitutional provisions that included similar explanatory phrases, none of which had ever been interpreted to limit or qualify the operative language to which they were appended. (5)
To understand why the Second Amendment's prefatory phrase provides a perfectly sensible explanation for the constitutional decision to protect a right of private citizens to keep and bear arms, one has to examine the ordinary and common meaning of the term "militia" in the late eighteenth century, the Militia Clauses in Article I of the Constitution, and the political situation in which the Second Amendment was drafted and ratified.
A. The meaning of the word "militia."
Popular discourse has come to identify the militia with our modern National Guard. While there is a kernel of truth in this habit, it significantly distorts the meaning that the word "militia" had for eighteenth century readers. For them, the militia was seen primarily in opposition to formal military organizations. Thus, for example, the Articles of Confederation forbade the states to keep up "any body of forces," while requiring them to keep up a "militia." (6) This sharp distinction between formal military organizations and the militia was maintained in Article I of our Constitution, which consistently refers to "armies," "land forces," and "troops" in contradistinction to the "militia." (7)
The reason for this distinction is clear. At the time of the founding, there was a widespread fear of standing armies, especially in the hands of a powerful central government. The principal sources of this anxiety were the historical memory of abuses committed prior to the English Revolution of 1689, and the actual memory of abuses committed by British troops in the years leading up to our own Revolutionary War. These abuses, it was widely believed, could best be avoided by depriving central governments of standing armies during peacetime, thereby forcing them to rely on ad hoc musters of an armed citizenry to deal with genuine emergencies. (8)
This understanding of the militia--as an armed citizenry subject to occasional military duty--was reflected in the first Militia Act, which required every free, able-bodied white male citizen between the ages of 17 and 45 (with certain limited exceptions) to be notified of his militia duties and to appear when called for training exercises with his own firearm and other equipment. (9) That legal tradition has continued right down to the present day. Even under current law, the militia does not consist only of those who volunteer for the National Guard, but rather of:
all able-bodied males at least 17 years of age and, except [for certain older members of the National Guard], under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (10)
The founding generation also recognized, of course, that the word "militia" was not a talisman that the law could simply invoke to ward off abuses by an oppressive government. Indeed, the British had experienced perversions of the militia system during the reign of Charles II, who had created a "select militia" made up of volunteers chosen for their loyalty to the King (11) The ominous prospect of this kind of "select militia" (analogous to our modern National Guard), created and controlled by the new federal government, became a subject of contention at the Federal Convention and during the subsequent ratification debates. The Second Amendment was a response to these concerns, but the nature of that response cannot be appreciated without understanding what occurred at the Convention.
B. The Militia Clauses of Article I.
Article I of our Constitution confers on Congress the power:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. (12)
The salient feature of these provisions is that they grant the federal government virtually unfettered authority over the militia, thus permitting the creation of exactly the sort of "select militia" that was widely considered a dangerous perversion. What is more, the Constitution also grants the federal government virtually unfettered authority to createstanding armies. (13) These decisions by the Convention represented a sharp and almost complete repudiation of the desire for legal limitations on the federal government's ability to create military organizations that could be used to oppress the people. Far from being inadvertent, this repudiation of a widespread sentiment favoring the citizen militia as an alternative to standing armies was deliberate and well considered.
The Revolutionary War had convinced many of those with influence at the Convention that it was simply imprudent to rely on the traditional militia for national defense, and that Congress must have more discretion to provide for the safety of the country. Hence the decision to authorize standing armies. It might still have been possible to discourage the unnecessary creation of standing armies if the Constitution had also included provisions ensuring that a vigorous and well-trained citizen militia would be maintained. But that, too, was infeasible. If control over the militia were left with the state governments, the militia would always be constrained by an absence of uniformity in its training and equipment. But if control of the militia were placed instead with the federal government, it could simply create a select militia, hardly distinguishable from a standing federal army.
The Federal Convention decided that these risks simply had to be accepted, and the whole notion of trying to use constitutional provisions to keep up the citizen militia as a substitute for standing armies was abandoned. (14) The risks, however, were sufficiently real and worrisome that they provided considerable fodder for Anti-Federalist opposition to the proposed Constitution.
C. The debates over ratifying the Constitution set the stage for the Second Amendment.
Although the ensuing ratification debates included some heated political rhetoric, there was little disagreement about the meaning of the relevant provisions in the proposed Constitution. All sides agreed that Congress would have almost plenary authority as a legal matter over both the military and militia. The real controversy turned on the benefits and costs of this arrangement. Anti-Federalists focused on the threat of tyranny, especially the danger that the states would lose their ability to mount a meaningful resistance to usurpations by the federal government. Federalists argued that these fears were overblown because there were numerous checks on the new federal government, including the fact that the American populace (unlike its European counterparts) consisted of an armed citizenry: whatever the federal government might do or neglect to do with the militia,the people themselves were armed and would therefore be anything but helpless in the face of an oppressive federal government.
The essence of the Anti-Federalist position is captured in Attorney General Luther Martin's famous Genuine Information, which bitterly denounced:
this extraordinary provision, by which the militia, the only defence and protection which the State can have for the security of their rights against arbitrary encroachments of the general government, is taken entirely out of the power of their respective states, and placed under the power of Congress. (15)
Similarly, the Federal Farmer wrote:
Should one fifth, or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless. (16)
The Federalists could not deny that the new Constitution would take control of the militia away from the states as alegal matter, or that the federal government would have the legal authority to create a select militia. But they did deny that there was cause for serious alarm. In the Federalist Papers, for example, Madison wrote at length about the improbability that the federal government would ever become animated by a spirit of oppression. Assuming for the sake of argument that this could happen, however, Madison contended that America's armed citizenry could not be subdued by such a government:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. 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. And it is not certain that with this aid alone they would not be able to shake off their yokes. (17)
Thus the Federalists and Anti-Federalistsshared the assumption that the new federal government should lack the power to disarm the citizenry. Without that assumption, Madison's argument would collapse because the American people would then be as easy to subdue as the Europeans. This was not enough for the Anti-Federalists, who wanted additional safeguards in the form of restrictions on the federal government's military resources. (18) But the Federalists prevailed, and the Constitution was ratified as proposed.
D. The text of the Second Amendment accurately reflects the contribution that an armed citizenry can make to a well regulated militia.
In light of the decisions made at the Federal Convention and the discussions during the ratification debates, the relation between the preface and the operative clause of the Second Amendment becomes clear. The right of the people to keep and bear arms can contribute to a well regulated militia because a truly well regulated militia must, among other things,be drawn from an armed citizenry. If the federal government were to disarm the citizenry and set up a "select militia" composed of what the Federal Farmer called "the young and ardent part of the community," this would represent the classic perversion of the militia system, familiar to the founding generation from the history preceding England's Revolution of 1689. Such a select militia might certainly be heavily regulated, but it just as certainly would not be "well regulated." (19)
At the same time, the text of the Second Amendment does not claim that protecting the citizenry from disarmament is sufficient to guarantee the preservation of a well regulated militia. That is why the Amendment's prefatory reference to a well regulated militia had to be phrased as an explanation, rather than as a binding command or prohibition. To guarantee the preservation of a well regulated militia, the Second Amendment would have had to go far beyond a guarantee of the people's right to keep and bear arms. To accomplish that much more ambitious objective, the Second Amendment would have needed, at the very least, to require Congress or the states to ensure that everyone qualified for military service actually received regular military training. As we showed above, the Federal Convention decided for very substantial reasons not to attempt through law to guarantee the continuation of the traditional citizen-militia system, or to forbid the new federal government from creating standing armies and select militias. Nor did the original Constitution purport to prevent the federal government from letting the traditional citizen militia fall into desuetude through lack of training. The Second Amendment leaves untouched the discretion over armies and militias that was granted to Congress by Article I of the Constitution, and protects only the right of the people to keep and bear arms.
Thus, the Second Amendment does not go nearly so far as the Anti-Federalists desired, even as it does pay rhetorical homage to those who believed that the traditional citizen militia was necessary to curb the potentially tyrannical impulses that might animate the new central government. This does not imply, however, that the right protected by the Second Amendment is irrelevant to the preservation of political liberty. On the contrary, precisely because nobody dreamed that the federal government should possess the authority to disarm the people, the text of the Second Amendment simply reaffirms a proposition implicit in the original Constitution and completely accepted by all parties to the ratification debates. (20) The fundamental importance of the right to keep and bear arms is confirmed by the complete absence of any suggestion by any member of the Federal Convention, or by any participant in the ratification debates, that the federal government should be given the power to disarm its citizens.
II. The legislative history of the Second Amendment confirms that it protects the right of individuals to keep and bear arms.
Like most of the Bill of Rights, the Second Amendment provoked little controversy because it simply made explicit what the Federalists had plausibly insisted was already obvious: the federal government had been given no power to infringe the right of the people to keep and bear arms, just as the federal government had been given no power to abridge the freedom of speech or to prohibit the free exercise of religion.
The drafting history of the Second Amendment, and the limited debate about it in the First Congress, confirm that the right to keep and bear arms is a right possessed by individuals. James Madison, who offered the initial proposal for a Bill of Rights, memorialized his understanding that these constitutional amendments would protect "private rights." (21) This understanding was particularly plain with respect to the right to arms because Madison initially proposed that the guarantee be inserted into Article I, section 9, immediately after the Bill of Attainder and Ex Post Facto Clauses, not into Article I, section 8, where the Militia Clauses are located. (22)
While Madison's intent was plain, the language he initially proposed was slightly ambiguous. While Madison's first draft might have been misinterpreted to suggest that the right to keep and bear arms is tied to actual military service, any such suggestion was removed by revisions made during the subsequent congressional process. Madison's first proposal was worded as follows:
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. (23)
The House of Representatives revised Madison's proposal, and adopted the following version:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person. (24)
The Senate made additional revisions, and adopted the wording that became part of the Constitution:
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. (25)
During the congressional process, three major changes were made. Congress decided to omit the conscientious objector clause, along with its hint that the right to arms might be restricted to those performing military service. Congress also deleted the term "well armed militia," thus eliminating any suggestion that the constitutional right to arms might only be a right to an armed militia. And Congress eliminated the description of the militia as "composed of the body of the people," thus avoiding any suggestion that the "people" and the "militia" might be identical. All of these alterations increased the clarity with which the final text protected an individual right, belonging to all citizens, rather than some sort of "right" applicable only to those performing military duties (26)
Perhaps the most telling aspect of the legislative history is the utter absence of any suggestion, by anyone who commented in any way on the Second Amendment, that it could possibly be interpreted to protect a right belonging to the state governments. (27) This theory, which developed only in the twentieth century, is not supported by a single statement anywhere in the historical record. (28) This should not be surprising, for such an interpretation would convert the Second Amendment from a straightforward denial of federal authority to disarm individual citizens into a radical revision of the Federal Convention's well considered and thoroughly debated decision to give Congress plenary control over both the military and the militia. Modern commentators may wish to believe that the Second Amendment gave the Anti-Federalists the victory they were denied when the Constitution was ratified, but the Anti-Federalists themselves were under no such illusion. (29)
Nor can the total silence of the historical record about such a states' right interpretation of the Second Amendment possibly reflect some unspoken agreement to such a theory. One reason for rejecting such an hypothesis is that Madison possessed a draft bill of rights, in Roger Sherman's handwriting, that would have given the Anti-Federalists their victory. Sherman's proposal, instead of protecting the right of the people to keep and bear arms, would have provided that "the Militia shall be under the government of the laws of the respective States, when not in the actual Service of the united States." (30) This proposal, if it was ever seriously entertained at all, was rejected. But its existence confirms the obvious proposition that if the First Congress had decided to accede to Anti-Federalist desires for constitutional constraints on federal authority over the militia, the necessary language was readily available. And that language could not be more different from the text actually adopted in the Second Amendment.
III. The "states' right" interpretation of the Second Amendment leads to absurd consequences.
Besides being inconsistent with the language and history of the Second Amendment, the constitutional purpose entailed in the states' right interpretation has absurd implications. That purpose, we are told, was to preserve to the states a military counterweight to federal standing armies (31) But this must imply that the Second Amendment sub silentio repealed or amended two separate provisions of Article I: the clause giving the federal government plenary authority over the militia, and the clause forbidding the states to keep troops without the consent of Congress. (32) These provisions of Article I have allowed the federal government virtually to eliminate the state militias as independent military forces by turning them into adjuncts of the federal army through the National Guard system. (33) Thus, under the states' right theory, the National Guard is unconstitutional. Similarly, the states' right interpretation implies that state gun regulations preempt those of the federal government. If a state decided to regulate its own militia by requiring or authorizing its citizens to arm themselves with fully automatic battle carbines and portable rocket launchers, such legislation would override the current federal restrictions on such weapons. In fact, if one took the purpose attributed to the Second Amendment by the states' right theory seriously, it would seem to follow that all federal gun control regulations are invalid because control over the private possession of arms lies exclusively in the state governments. (34)
The absurdities entailed in the states' right theory further confirm what the text and legislative history abundantly demonstrate: the right of the people to keep and bear arms is a right possessed by private citizens, not by state governments.
IV. The Yassky Brief misconstrues the language of the Second Amendment and distorts the relevant legislative history.
Without attempting to catalog every error in the brief submitted to this Court by the Ad Hoc Group of Law Professors and Historians ("Yassky Brief"), we would call the Court's attention to four especially egregious flaws in its analysis.
First, the Yassky Brief repeatedly refers, in a strange new locution, to the "Bear Arms Clause," apparently with the hope that this will somehow draw attention away from the plain meaning of the Constitution's reference to "the right of the people to keep and bear arms." The purpose of employing this locution is evidently to stress the military connotations frequently associated with the term "bear arms." Apart from the fact that the Constitution protects the right to "keep arms," a term that has no military connotations at all, the term "bear arms" does not invariably have a military meaning.
Three examples from the founding period illustrate the use of the term "bear arms" in non-military contexts. First, the Pennsylvania Constitution of 1776, adopted by a community in which Quaker sentiment had frequently prevented the formation of an official militia, nonetheless provided: "That the people have a right to bear arms for the defence of themselves and the state." (35) Second, the Anti-Federalist minority at the Pennsylvania ratifying convention promulgated a widely circulated statement demanding constitutional recognition that "the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game." (36) Third, a bill proposed by James Madison himself in the Virginia legislature imposed penalties on a violator of the game laws if he subsequently "shall bear a gun out of his inclosed ground, unless whilst performing military duty." (37) The Yassky Brief's attempt to give the phrase "keep and bear arms" an exclusively military meaning is simply a canard. (38)
Second, the Yassky Brief repeatedly relies on statements by Anti-Federalists prior to the ratification of the Constitution, as though such statements could explain the intent of the Second Amendment. As we have shown above, however, the Anti-Federalists failed to get what they wanted (state control over the militia) either in the original Constitution or in the Second Amendment. Interpreting the Second Amendment as a device to satisfy these Anti-Federalist desires is another insupportable canard.
Third, the Yassky Brief asserts, at 15-16, that four of the five proposals for constitutional amendments adopted by state ratifying conventions do not "suggest" a right to possess arms outside of military service. Those proposals refute this contention on their face: each one lists the "right to keep and bear arms" separately from statements about such matters as the militia, standing armies, and conscientious objectors. (39)
Fourth, the Yassky Brief, at 4, takes the purpose of the Second Amendment to be "ensuring that states would have armed militia available as a counterweight to any standing army established by the new government," but then later claims, id. at 25, that the Second Amendment allows the federal government to disarm members of the Texas State Guard. Thus is revealed the true view of the Yassky Brief: the Second Amendment offers no protection of any kind to anyone.
V. The fundamental importance of the individual right to keep and bear arms has not been nullified by subsequent historical events.
The right to keep and bear arms has two distinct purposes, which are rooted in a common source. As Blackstone--the foremost expositor of legal theory for the founding generation--had explained, the right to arms serves "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. (40) Blackstone made no distinction between the "violence of oppression" that would result from tyrannical government and from government's failure to control common criminals. There is a good reason for this: you are equally dead if you are killed by a tyrant or a highwayman, and a government that disarms you leaves you vulnerable to both. Conversely, a citizen who took up arms against a tyrant, or a robber, or a foreign invader was in each case acting in defense of both his community and himself. (41)
Because of the context in which the issue arose--namely the debate between Federalists and Anti-Federalists about the proper locus of control over the militia--public discussions of the right to arms at the time of the founding focused on its usefulness in preventing tyranny. But the purpose of the militia, and of preserving an armed citizenry, went well beyond this specific context. Article I of the Constitution, for example, expressly provides that the militia may be called forth "to execute the Laws of the Union, suppress Insurrections and repel Invasions." (42) Similarly, in a world without organized police forces, individuals were expected to defend themselves against criminal attacks, just as they were expected to act as private prosecutors in enforcing the criminal laws. Our habitual modern dichotomy between private and public actions had much less meaning for those who lived with governments that operated on a much smaller scale than our own. Thus, the right to keep and bear arms was a right whose public and private aspects were deeply intertwined. (43) And they remain intertwined today.
Changing social conditions have naturally produced a shift in the relative frequency with which we discuss the different aspects of the Second Amendment right. Two centuries of relative political stability, along with dramatic increases in the military power necessarily reposed in the federal government, make it tempting to dismiss as quaint the impassioned eighteenth century discussions about the value of a citizen militia. Today, few people worry that the United States Army might become a Praetorian Guard at the command of a despotic President, and even fewer believe that bands of armed citizens could defeat such an organization in battle.
While our modern assumptions are obviously plausible, the implications should not be overstated. An armed populace always creates a deterrent to government oppression by raising the potential costs of employing military force, even in circumstances where a military dictatorship could certainly prevail with a sufficient investment of resources. (44) Just as Madison expected an armed citizenry to deter would-be tyrants, the Nazis in fact refrained from invading Switzerland. (45) The continuing relevance of deterrence against domestic oppression is also suggested by the historical experience of black Americans. Gun control laws were frequently used to help secure the political subordination of the black population, which might well have been considerably more difficult if blacks had enjoyed the same right to firearms that the white population reserved for itself. (46)
Even if the anti-tyranny function of the Second Amendment had become completely outmoded, the right to keep and bear arms would continue to serve an important constitutional purpose by providing American citizens with the means of exercising their fundamental natural right of self-defense against criminals. The government has neither the obligation nor the ability to protect its citizens from murder, rape, and robbery. (47) The police almost always arrive on the scene well after the crime has been committed, and no one would want to have police officers stationed everywhere that crime might occur. These fundamental aspects of American society have not changed since the eighteenth century, and an armed citizenry continues to have great value both to those who choose to be armed and to their fellow citizens. Contrary to widespread misconceptions, armed resistance to criminal violence is very common, and much more successful in preventing injuries to the victim than passive acquiescence. (48) An armed citizenry is also an extremely powerful deterrent to violent crime, and the huge number of crimes that are prevented by this deterrent constitute an important private and public benefit. (49)
VI. The arbitrary disarmament of American citizens violates the Second Amendment.
The Second Amendment protects the fundamental constitutional right to keep and bear arms. That guarantee is not absolute, of course, any more than the other fundamental protections in the Bill of Rights are absolute (50) The government is certainly entitled to serve the compelling public interest in preventing violent crime and securing the public safety through measures that are narrowly tailored to achieve that goal. Thus, for example, statutes imposing firearms disabilities on persons convicted of violent crimes are constitutionally permissible, as are laws disarming children and the mentally ill. Indeed, the statute at issue in this case would be constitutionally defensible if it imposed a temporary firearms disability on persons subject to domestic-violence restraining orders issued after a judge had made findings of past or future dangerousness.
As applied in this case, however, 18 U.S.C. § 922(g)(8) deprives an American citizen of his fundamental Second Amendment rights on the basis of a routine, prophylactic court order that was not based on any finding of past or future dangerousness. (51) If that application of the statute is permissible, then the federal government can take away the Second Amendment rights of any citizen who it believes might misuse those rights. That means every citizen could be disarmed, which would render the Second Amendment a nullity. Accordingly, we suggest that the judgment below must be AFFIRMED.
George M. Strickler, Jr.
48 Allard Boulevard
New Orleans, LA 70119
LA State Bar No. 12536
Counsel for Amicus Curiae
CERTIFICATE OF SERVICE
I, George M. Strickler, Jr., hereby certify that on December 20, 1999, the original and six (6) copies of the foregoing brief, and one diskette, were delivered by hand to the United States Court of Appeals for the Fifth Circuit; that one (1) copy of the foregoing brief, and one diskette, were mailed to William B. Mateja, Assistant United States Attorney, 1205 Texas Avenue, 7th Floor, Lubbock, TX 79401; and that one (1) copy of the foregoing brief, and one diskette, were mailed to Timothy Crooks, Assistant Federal Public Defender, 600 Texas St., Suite 100, Fort Worth, TX 76102.
George M. Strickler, Jr.
CERTIFICATE OF COMPLIANCE
Pursuant to Fifth Cir. R. 32.2 and .3, the undersigned counsel certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).
The undersigned understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Fed. R. App. P. 32(a)(7), may result in the court's striking the brief and imposing sanctions against the person signing the brief.
George M. Strickler, Jr.
1. See, e.g., R. Barnett & D. Kates, Under Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139, 1146, 1210 (1996).
2. Laurence H. Tribe, 1 American Constitutional Law 902 n.221 (3d ed. 2000) (emphasis added). For Professor Tribe's earlier views, see Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution 11 (1991); Laurence H. Tribe, American Constitutional Law 299 n.6 (2d ed. 1988).
3. Leonard W. Levy, Origins of the Bill of Rights 134 (1999) (emphasis added).
4. See, e.g., D. Kopel, The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev. 1359, 1362 & n.1 (citing dozens of articles endorsing the individual right interpretation); Barnett & Kates, supra note 1, at 1143-45 & nn. 12-17 (discussing the literature on both sides of issue).
5. E. Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).
6. Articles of Confederation art. VI, ¶ 4.
7. U.S. Const. art. I, § 8, cls. 12, 14, 15, 16; § 10, cl. 3.
8. E.g., D. Vandercoy, The History of the Second Amendment, 28 Val. U. L. Rev. 1007, 1022 (1994).
9. Act of May 8, 1792, 1 Stat. 271.
10. 10 U.S.C. § 311. The Yassky Brief, at 24, misleadingly ignores the current legal definition of the militia, quoting instead the statutory provision that defines a subset of the militia as the "organized militia."
11. Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 35-38 (1994).
12. U.S. Const. art. I, § 8, cls. 15-16.
13. U.S. Const. art. I, § 8, cl. 12.
14. See 2 Farrand, Records of the Federal Convention 616-17 (1911).
15. Luther Martin, The Genuine Information, delivered to the Legislature of the State of Maryland, relative to the Proceedings of the General Convention, held at Philadelphia, in 1787 (Nov. 29, 1787), reprinted in 3 Farrand, supra note 14, at 208 (emphasis in original omitted).
16. 2 The Complete Anti-Federalist 242 (H. Storing, ed. 1981).
17. The Federalist No. 46, at 299 (C. Rossiter ed., 1961)
18. See, e.g., L.A. Powe, Guns, Words, and Constitutional Interpretation, 38 Wm. & Mary L. Rev. 1311, 1352 (1997) (discussing Anti-Federalist fears).
19. See N. Lund, The Past and Future of the Individual's Right to Arms, 31 Ga. L. Rev. 1, 24-26 (1996) (explaining why the term "well regulated" does not imply that the militia must be heavily regulated).
20. A. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1167 (1991) ("the notion that congressional power in clause 16 to 'organiz[e]' and 'disciplin[e]' the general militia logically implied congressional power to disarm the militia entirely is the very heresy the Second Amendment was designed to deny").
21. 12 Papers of James Madison 193-94 (C. Hobson et al., eds. 1979) (notes for speech proposing bill of rights); id., vol. 11, at 307 (letter to Edmund Pendleton).
22. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 169 (N. Cogan, ed., 1997) (reprinting contemporaneous accounts).
23. Id. at 169 (reprinting 1 Congressional Register 427 (June 8, 1789)).
24. Id. at 172 (reprinting Journal of the House of Representatives 107 (Aug. 21, 1789)); see also id. at 173 (reprinting Senate journal entries memorializing the text received from the House).
25. Id. at 176 (reprinting Senate Pamphlet).
26. Although we lack records of the debates in the Senate, we do know that the Senate rejected a proposal that would have qualified the right to keep and bear arms by adding the phrase "for the common defence." Id. at 174-75 (reprinting Senate documents). This is yet further proof that Congress was scrupulous to avoid language suggesting that the right to arms might be confined to military contexts.
27. Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 83 (1984).
28. Nineteenth century courts and legal commentators also agreed that the Second Amendment protects an individual right. Kopel, supra note 4.
29. E.g., Complete Bill of Rights, supra note 22, at 186 (statement of Rep. Elbridge Gerry, Aug. 17, 1789).
30. Id. at 169.
31. E.g., Yassky Brief at 4.
32. U.S. Const. art. I, § 8, cl. 16; § 10, cl. 3.
33. Perpich v. Department of Defense, 496 U.S. 334 (1990).
34. For further detail, see G. Reynolds & D. Kates, The Second Amendment and States' Rights: A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995).
35. Pa. Const. of 1776, art. XIII (emphasis added); James B. Whisker, The Rise and Decline of the American Militia System 212-24 (1999).
36. Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents (Dec. 18, 1787), reprinted in 2 Documentary History of the Ratification of the Constitution 623-24 (M. Jensen ed., 1976) (emphasis added).
37. 2 Papers of Thomas Jefferson 443 (J.P. Boyd, ed. 1950) (reproducing bill introduced by Madison on Oct. 31, 1785) (emphasis added).
38. Even more strangely, the Yassky Brief, at 12 n.4, suggests that the use of commas in the Second Amendment somehow links "A well regulated Militia" to "shall not be infringed," as though the Constitution should be read to say: "A well regulated Militia shall not be infringed." This desperate gambit ignores the Constitution's frequent use of commas that would be considered extraneous in modern usage (e.g., in the First and Third Amendments).
39. For a detailed analysis of these and many other proposals for constitutional amendments, all of which were reviewed by Madison when he drafted his proposed bill of rights, see D. Hardy, The Second Amendment and the Historiography of the Bill of Rights, 4 J.L. & Pol. 1, 43-53 (1987).
40. 1 Blackstone, Commentaries *144.
41. E.g., D. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 225-35 (1983).
42. U.S. Const. art. I, § 8, cl. 15.
43. For further detail, see D. Kates, The Second Amendment and the Ideology of Self-Protection, 9 Const. Commentary 87 (1992).
44. See, e.g., S. Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 657 n.96 (1989).
45. Stephen P. Halbrook, Target Switzerland: Swiss Armed Neutrality in World War II (1998).
46. R. Cottrol & R. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Georgetown L.J. 309 (1991).
47. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189 (1989).
48. G. Kleck & M. Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 151-52, 174-75 (1995); Gary Kleck, Targeting Guns: Firearms and their Control 167-77 (1997).
49. See, e.g., J. Lott & D. Mustard, Crime, Deterrence, and the Right-to-Carry Concealed Weapons, 26 J. Leg. Studies 1 (1997); Daniel D. Polsby, The False Promise of Gun Control, Atlantic Monthly, Mar. 1994, at 57.
50. See, e.g., W. Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236, 1250 (1994).
51. For further detail, see N. Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Politics 157 (1999).