STATEMENT REGARDING ORAL ARGUMENT

While this case is neither complicated factually, nor confusing legally, the United States urges the Court to grant oral argument because the District Court broke with stare decisis in becoming the first federal court to recognize an individual right to bear arms under the Second Amendment. The impact of the District Court's decision and this Court's review of the same is potentially far reaching.

[Page i]

TABLE OF CONTENTS

			PAGE
STATEMENT REGARDING ORAL ARGUMENT			i
TABLE OF CONTENTS			ii
TABLE OF AUTHORITIES			iii
STATEMENT OF JURISDICTION			1
STATEMENT OF THE ISSUES			2
STATEMENT OF THE CASE			2
STATEMENT OF FACTS			3
SUMMARY OF THE ARGUMENT			8
ARGUMENT AND AUTHORITIES			11
	I.	THE DISTRICT COURT ERRED BY GRANTING
		EMERSON'S MOTION TO DISMISS ON
		SECOND AMENDMENT GROUNDS	11
	II.	THE DISTRICT COURT ERRED BY GRANTING
		EMERSON'S MOTION TO DISMISS ON FIFTH
		AMENDMENT DUE PROCESS GROUNDS	37
CONCLUSION			47
CERTIFICATE OF SERVICE			48
CERTIFICATE OF COMPLIANCE			49
APPENDIX

[Page ii]

TABLE OF AUTHORITIES

		Page(s)
	CASES
Barrett v. United States,
	423 U.S. 212 (1976)	32
Bryan v. United States,
	118 S. Ct. 1939 (1998)	39, 41
Cases v. United States,
	131 F.2d 916 (1st Cir. 1942)	17
Cheek v. United States,
	498 U.S. 192 (1991)	39,41
Cox v. New Hampshire,
	312 U.S. 569 (1941)	30
Dickerson v. New Banner Institute, Inc.,
	460 U.S. 103 (1983)	32
Gillespie v. City of Indianapolis,
	___ F.3d ___ 1999 WL 463577 (7th Cir. 1999)	23, 31
Hickman v. Block,
	81 F.3d 98 (9th Cir.), cert. denied, 519 U.S. 912 (1996)	26-27
Huddleston v. United States,
	415 U.S. 814 (1974)	32, 44
Lambert v. California,
	355 U.S 225 (1957)	38, 45

[Page iii]

[Page iv]

[Page vi]

NO. 99-10331

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
SAN ANGELO DIVISION

STATEMENT OF JURISDICTION

This is an appeal from the District Court's March 1, 1999 order granting Defendant Timothy Joe Emerson's ("Emerson") motions to dismiss the Indictment and the District Court's memorandum opinions and judgment reflecting the same. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 3731. [Page 1]

STATEMENT OF THE ISSUES

1. Whether the District Court erred in granting Emerson's motion to dismiss by striking down 18 U.S.C. § 922(g)(8), the statute making it illegal to possess a firearm while subject to a domestic violence restraining order, as unconstitutional under the Second Amendment.

2. Whether the District Court erred in granting Emerson's motion to dismiss by striking down 18 U.S.C. § 922(g)(8) as unconstitutional on the ground it violated the Due Process Clause of the Fifth Amendment.

STATEMENT OF THE CASE

On December 8, 1998, a federal grand jury indicted Emerson on five counts of illegally possessing numerous firearms while subject to a divorce court's order restraining him from threatening his wife and daughter, in violation of 18 U.S.C. § 922(g)(8). (R. 1: 4-14). Emerson was indicted for illegally possessing not only two 9mm pistols, but a military issue, semi automatic M1 carbine, a semi automatic SKS assault rifle with bayonet, and a semi automatic M-14 assault rifle. Id.

Prior to trial, the Government moved to dismiss Counts 2 through 5, and the District Court granted the motion. (R. 1: 215).

Emerson filed three motions to dismiss the Indictment, alleging 18 U.S.C. § 922(g)(8) was unconstitutional under the Commerce Clause and the Second, Fifth [Page 2] and Tenth Amendments. (R. 1: 51-114). After a hearing, the District Court granted all motions pursuant to a brief March 1, 1999 order, noting it intended to follow up its order with a Memorandum Opinion. (R. 1: 258).

The Government filed its Notice of Appeal on March 29, 1999. (R. 1: 259-61). The next day, the District Court filed a lengthy Memorandum Opinion and Judgment. (R. 1: 262-95). The District Court retreated from its earlier ruling granting all three motions to dismiss. Instead, it based its dismissal on only the Second and Fifth Amendment arguments and held 18 U.S.C. § 922(g)(8) was constitutional under the Commerce Clause and Tenth Amendment. (R. 1: 3, 31-33)

On April 6, 1999, Emerson filed his Notice of Cross Appeal as to the denial of his Commerce Clause and Tenth Amendment challenges. (R. 1, 297-98). On June 10, 1999, the Government filed its Motion to Dismiss Cross-Appeal which was granted by this Court on July 28, 1999

STATEMENT OF FACTS

1. Emerson Receives Actual Notice of Section 922(g)(8)

On October 10, 1997, Emerson purchased a Beretta pistol from the Timely Finance Company in San Angelo, Texas. (Govt. Ex. 7; (R. 2: 10). This Beretta pistol was the gun the grand jury charged Emerson with illegally possessing in Count 1. He filled out the required ATF Form 4472 "Firearms Transaction Record" [Page 3] at the time of purchase. Id. This form asked Emerson whether he fell within any of the prohibited categories of persons not entitled to purchase or possess a firearm.

Id. Question 8j specifically asked Emerson:

j. Are you subject to a court order restraining you from harassing, stalking, Or threatening an intimate partner or child of such partner? (See Important Notice 4 and Definition 4)[1]

Id. Emerson correctly responded "no" to the question because he had not yet been made subject to the restraining order giving rise to the Indictment. Id. He signed the Form 4473 directly under boldface, large cap language which stated:

I CERTIFY THAT THE ABOVE ANSWERS ARE TRUE AND CORRECT. I UNDERSTAND THAT A PERSON WHO ANSWERS "YES" TO ANY OF THE QUESTIONS 8B THROUGH 8K IS PROHIBITED FROM PURCHASING OR POSSESSING A FIREARM.

Id. Whether or not Emerson carefully read the boldface language, Question 8j or the Notice 4, the Form 4473 placed him on notice it was illegal to possess the very [Page 4] gun he was charged with illegally possessing. A copy of the ATF Form 4473 is attached to this brief as Appendix 1.

2. The Restraining Order And Emerson's Threatening Conduct

Less than a year after purchasing the Beretta pistol, on September 4, 1998, Emerson appeared before a state district court in his divorce case. (R. 2: 4-9; R. 1: 85-110). The first witness called at the hearing was Emerson's wife, Sacha. After the requisite background questions, Sacha Emerson's attorney asked her:

Q: You are here today asking the Court for temporary orders regarding yourself and your daughter, is that correct?

A: Yes.

Q: You have asked in these restraining orders regarding Mr. Emerson in that he not communicate with you in an obscene, vulgar, profane, indecent manner, in a coarse or offensive manner?

A: Yes.

Q: He has previous to today threatened to kill you; is that correct?

A: He hasn't threatened to kill me. He's threatened to kill a friend of mine.

Q: Okay. And he has threatened he has made some phone calls to you about that?

A: Yes.

(R. 1: 88-89).

[Page 5]

During his own testimony, Emerson acknowledged he recently closed his medical office due to "anxiety related matters." (R. 1: 101). Emerson explained: "If I don't feel like I am mentally in a good state of mind, I don't feel like I am mentally capable of taking care of patients at the present time." Id. Importantly, Emerson presented no evidence to refute his wife's contention that he posed a potential threat and had earlier threatened to kill her friend. (R. 1: 101-06). Thereafter, the state judge executed a restraining order entitled "Temporary Orders" which not only granted Sacha Emerson's request for an order restraining Emerson from communicating with her in vulgar, profane, obscene or indecent language, but also restraining him from:

2. Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person.

* * * * *

4. Intentionally, knowingly, or recklessly causing bodily injury to Petitioner or to a child of either party.

5. Threatening Petitioner or a child of either party with imminent bodily injury.

(Govt. Ex. 1; R. 2: 9).

[Page 6]

3. Emerson Pulls The Pistol On His Wife And Daughter

Two months later, on November 16, 1998, Sacha Emerson and the Emersons' 4-year old daughter went to Emerson's medical office to retrieve an insurance payment. (R. 1: 192; R. 2: 9-10). While at the office, the Emersons got into an argument. (R. 1: 192-95). As Emerson's temper flared, he pulled the Beretta pistol from his desk drawer. Id. He told his wife she needed to leave. (R. 1: 189). After Mrs. Emerson indicated she was leaving and needed to get their daughter's shoes from a back room, Emerson told her she could not go back there. (R. 1: 189). When she questioned whether Emerson was hiding something in the back room, he cocked the gun. (R. 1: 189, 193, 194). Though a witness to the incident did not see Emerson point the gun, Sacha Emerson told police he pointed the gun not only at her, but their daughter. (R. 1: 189, 193, 194). The witness, an office employee, did tell police he had gone to lunch with Emerson earlier in the day and that:

Dr. Emerson said he just needed to get rid of Sacha and get rid of a lot of peoples [sic] problems. He said he had an AK-47 at the office and he just had to get bullets. After we had sat down and were talking Dr. Emerson said he was going to make the trip to Sterling City. This is where Sacha and her boy friend [sic] work. I took it that he mean [sic] he was going to go there to kill Sacha because he said he was going to go to Timely Finance and get ammo before he left.

(R. 1: 195). [Page 7]

4. Emerson Continues To Threaten

On November 30, 1998, San Angelo police responded to a complaint by Emerson that three of Sacha Emerson's friends were wrongfully towing three cars from his medical office. (R. 1: 204, 197-98; R. 2: 9-10). After contacting the state judge in Emerson's divorce and learning not only that Sacha Emerson's friends had permission, but that the cars were to be released to Sacha Emerson, all pursuant to judicial order, police spoke to Emerson. He told them he had an AK-47 assault rifle and a 9mm handgun somewhere in his office. (R. 1: 204, 197-98, 201-02). Emerson said something about shooting his wife and her new boyfriend. (R. 1: 202, 204). He stated that if any of his wife's friends set foot on his property, they would "be found dead on the parking lot ...." Id.

5. The Grand Jury Indicts Emerson Under Section 922(g)(8)

Eight days later, on December 8, 1999, a federal grand jury indicted Emerson for unlawfully possessing the Beretta pistol he pulled on his wife and daughter on November 16th. (R. 1: 4-14).

SUMMARY OF THE ARGUMENT

In striking down Section 922(g)(8) as unconstitutional under the Second Amendment, the District Court broke with the long-standing rule of stare decisis. Every modern-day federal court charged with reviewing the constitutionality of a [Page 8] statute against a direct Second Amendment challenge, including the Supreme Court, the Fifth Circuit and nearly every federal court of appeals, has determined that possession of the firearm in question must be "reasonably related" to the preservation or efficiency of the militia before one may invoke the protections of the Second Amendment. Not only did Emerson fail to prove his possession of the Beretta pistol was reasonably related to service in the militia the District Court wholly failed to apply this "reasonable relationship," test, thus disregarding established precedent. Accordingly, Emerson was not entitled to invoke the Second Amendment as a bar to prosecution under § 922(g)(8).

In the event this Court determines Emerson satisfied the "reasonable relationship" test or otherwise enjoys limited protection under the Second Amendment, there is no doubt the Second Amendment does not constitute an absolute bar to Congress' regulation of firearms where a regulation is a "reasonable regulation for the maintenance of public order" or has a rational basis for its being. As noted in its legislative history, Congress enacted § 922(g)(8) because "in all too many painful cases the only difference between a battered woman and a dead woman is a gun." Though domestic violence is the most under reported crime in America, it is still the leading cause of injury to women between the ages of 15 and 44. Statistics such as these, along with Congress' express recognition of the [Page 9] problem posed by domestic violence, form a rational basis for § 922(g)(8). Further, the facts of this case demonstrate the reasonableness of the statute given the fact Emerson's wife established, at the restraining order hearing, that Emerson represented a credible threat to her. He had already threatened to kill a friend of Mrs. Emerson and had made calls to her concerning such threats. That Emerson was prohibited from possessing a firearm while under a restraining order was certainly reasonable in the context of maintaining the public order.

Finally, Section 922(g)(8) does not violate the due process clause of the Fifth Amendment. The District Court mistakenly determined the statute contained no intent element. Because the statute punishes only "knowing" violations, this case differs from the Supreme Court case relied upon the District Court. The District Court also mistakenly determined that due process prevented Emerson's conviction because he purportedly was unaware of the law. The traditional rule that ignorance of the law is no defense to criminal prosecution applies as well to this case. Further, § 922(g)(8) is not a highly technical statute, unlike tax and currency structuring laws in which the Supreme Court has required specific knowledge of the law allegedly violated. In any event, Emerson had actual knowledge of § 922(g)(8) because he was informed of the prohibition at the time he purchased the gun for which he was indicted. [Page 10]

ARGUMENT AND AUTHORITIES

I.

THE DISTRICT COURT ERRED BY GRANTING
EMERSON'S MOTION TO DISMISS ON
SECOND AMENDMENT GROUNDS

In striking down Section 922(g)(8)[2] as unconstitutional under the Second Amendment,[3] the District Court focused on 200 years of Second Amendment development from the 17th and 18th centuries 200 years of development best called "history." In contrast, the District Court completely glossed over the last 100 years of Second Amendment development which represents not only history, but the law. In doing so, the District Court broke with the long-standing rule of stare decisis. Every modern-day federal court charged with reviewing the constitutionality of a firearms statute against a direct Second Amendment challenge, including the Supreme Court in United States v. Miller, the Fifth Circuit, and nearly every federal court of appeals, has determined that possession of the firearm must be "reasonably related" to the preservation or efficiency of the militia before the Second Amendment will shield such possession. The District Court wholly failed to [Page 11] review whether Emerson's possession of the Beretta pistol was reasonably related to service in the militia, thus disregarding established precedent. Accordingly, Emerson was not entitled to invoke the Second Amendment as a bar to prosecution. In the following pages, the Government outlines the seminal Supreme Court cases and the numerous federal court of appeals decisions which laid the groundwork in the establishment of well-settled Second Amendment case law. Though this outline is long, it underscores the fact that the law was well-settled and developed prior to the District Court casting its lone dissent.

A. The Supreme Court In United States v. Miller

In reviewing the Second Amendment, the starting point is the Supreme Court's 1939 decision in United States v. Miller, 307 U.S. 174 (1939). In Miller, two defendants were charged with transporting a sawed-off shotgun in violation of the National Firearms Act. Id. at 175. The defendants successfully moved the trial court to dismiss their indictment on the ground that the National Firearms Act violated their Second Amendment rights. Id. at 176-77.

The Supreme Court lost no time in reversing the lower court and upholding the statute's constitutionality under the Second Amendment. The Court stated that:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a [Page 12] well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Id. at 178 (emphasis added). The Court went on to explain the history of citizen militias and the background for the provision of the Constitution giving Congress the authority to fund the State militias. See U.S. CONST. ART. 1, SEC. 8 ("To Provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions ...." Against this history of citizen militias, the Miller court said:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Id. The Miller court tells us that the necessity of maintaining effective state militias is, by the language itself, the only concern of the Second Amendment, and that the right to keep and bear arms is a right coextensive with membership in the militia, existing only to the extent necessary to meet that concern. In sum, Miller requires that one challenging the constitutionality of a statute under the Second Amendment show his possession of a firearm is "reasonably related" to service in the militia. Contrary to the District Court's suggestion on pp. 21-22 of its opinion, Miller does not stand for the proposition that courts may end their analysis upon [Page 13] determining the firearm in question is the sort of firearm used by militias or the military. Miller expressly states that a court must review whether the "possession or use" of a gun has some reasonable relationship to the preservation or efficiency of a well regulated militia. Id. at 178. Unless the "possession or use" of the gun meets the test, there is no Second Amendment infirmity. If courts reviewed only whether a firearm had a military character, citizens could arm themselves with the most extreme of military style weapons, such as bazookas and rocket launchers. That Miller recognized sawed-off shotguns lack any appreciable military utility does not mean courts need not examine whether the possession or use of a firearm relates to militia service. It means only that evidence of a gun's military character may be relevant to whether its possession or use ultimately bears a reasonable relationship to militia service.

B. The Supreme Court After Miller

In Lewis v. United States, 445 U.S. 55 (1980), the defendant challenged his felon in possession conviction on the basis that the predicate felony was obtained in violation of the Fourth and Sixth Amendments because he was not represented by counsel. Id. at 56-58. After deciding the defendant could not collaterally attack the predicate felony despite the fact the felony might otherwise be subject to a [Page 14] successful constitutional attack, the Court upheld the firearm prohibition against a Fifth Amendment Due Process challenge. In a footnote, the Court stated:

The legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 ... (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia") ....

Lewis, 445 U.S. at 65 n. 8 (emphasis added). The Court's statement makes it clear that the Second Amendment does not protect an individual right to bear arms. Legislative restrictions on the use of firearms such as § 922(g)(8) simply do not infringe on "any constitutionally protected liberties."

C. The Supreme Court Before Miller

There are three other Supreme Court decisions addressing the Second Amendment, all dating back more than a century ago. None of these cases, however, supports the view that the Amendment guarantees an individual right to possess firearms In United States v. Cruikshank, 92 U.S. 542 (1875), the Court reversed the convictions of southern whites charged with conspiring to deprive blacks of an alleged constitutional right to keep and bear arms. Id. at 559. Though the Court did not fully examine the breadth of the Second Amendment, it stated there was no absolute constitutional right to "bear arms for [even] a lawful [Page 15] purpose." Id. at 553. Further, the Second Amendment conferred no such right on individuals, rather, it was meant only to limit the power of the federal government with respect to the maintenance of state militias. Id.

Ten years later, the Court upheld a defendant's conviction for violating a state law prohibiting military assemblies without a permit. Presser v. Illinois, 116 U.S. 252 (1886). The Presser court reaffirmed Cruikshank, noting the Second Amendment established no individual right to bear arms, and did not apply to the states. Id. at 264-65.

In Miller v. Texas, 153 U.S. 535 (1894), a defendant challenged his murder conviction on the ground that the state crime of illegally carrying a gun, for which he initially had been apprehended, was unconstitutional under the Second Amendment. The Supreme Court rejected the defendant's challenge, holding again that the Amendment applied only to the federal government, and not the states. Id. at 538.

D. The Unanimous Federal Courts Of Appeal

Until the District Court broke with stare decisis, every federal court of appeals charged with reviewing the constitutionality of a statute as against a direct Second Amendment challenge, including the Fifth Circuit, had determined that the possession or use of the firearm must be "reasonably related" to the preservation or efficiency of the militia. In the pages that follow, the Government briefly [Page 16] summarizes notable decisions from the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuit Courts of Appeal, all of which would require that Emerson show some "reasonable relationship" between his possession of the Beretta pistol and service in the militia

The First Circuit

In United States v. Friel, 1 F.3d 1231, 1993 WL 309628 (1st Cir. 1993) (unpublished), a per curiam decision involving current Supreme Court justice Stephen Breyer, a defendant challenged his conviction for being a felon in possession of a firearm because it violated "the constitutional right to bear arms." Id. The Friel court rejected this claim on the ground that the Supreme Court "plainly" determined the Second Amendment applies only to firearms having a "reasonable relationship to the preservation or efficiency of a well regulated militia ...." Id. See Cases v. United States, 131 F.2d 916 (1st Cir. 1942). The court also relied on the Supreme Court's decision in Lewis for the proposition that "legislative restrictions on the ability of a felon to possess a firearm do not 'trench upon any constitutionally protected liberties.'" Id.

The Second Circuit

In United States v. Toner, 728 F.2d 115 (2nd Cir. 1984), the defendant challenged his conviction for being an illegal alien in possession of a firearm, Page 17] arguing the statute violated his Fifth Amendment right to equal protection of the law. The court focused on whether the statute rested on a rational basis sufficient to pass equal protection muster. Id. at 128. In so doing, the court cited Miller for the proposition that the right to possess a gun was "not a fundamental right" because the Second Amendment did not guarantee the right to keep and bear a weapon unless the evidence showed the firearm had some "reasonable relationship" to the preservation or efficiency of a well regulated militia. Id.

The Third Circuit

In United States v. Rybar, 103 F.3d 273 (3rd Cir.), cert. denied, 118 S.Ct. 46 (1997), the defendant argued his possession of a machine gun bore a reasonable relationship to the preservation and efficiency of a well regulated militia. Id. at 285-86. He attempted to place himself "within the penumbra of membership in the 'militia"' because 10 U.S.C. § 311(a) states the militia of the United States consists of all able-bodied males at least 17 years of age and under 45 years of age who are U.S. citizens. Id. The court rejected this assertion stating that:

"[The defendant's] invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to 'the preservation or efficiency of a well regulated militia' ... Nor can claimed membership in a hypothetical or 'sedentary' militia suffice. Id. [Page 18]

The court also noted Miller did not state that military character of the weapon alone would be sufficient to secure Second Amendment protection:

In fact, the Miller Court assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its "possession or use" and militia-related activity.

Id. at 286 (emphasis added).

Last, the court resisted the defendant's urging to find Miller was wrongly decided. Id. It stated that:

As one of the inferior federal courts subject to the Supreme Courts precedents, we have neither the license not the inclination to engage in such freewheeling presumptuousness ... Federal attempts at firearms regulation have also consistently withstood challenge under the Second Amendment ... We see no reason why [the law against possession of a machine gun] should be an exception....

Id.

Fourth Circuit

In Love v. Peppersack, 47 F.3d 120 (4th Cir.), cert. denied, 516 U.S. 813 (1995), an applicant for the purchase of a handgun filed a 42 U.S.C. § 1983 action against police officers involved in the denial of her application alleging, among other things, that her right "to keep and bear" a handgun had been violated. Like the District Court below, the applicant cited a number of law review articles in support of her Second Amendment claim. Id. at 123. After noting the Second Amendment [Page 19] did not apply to the states, the court stated the Amendment did not "confer an absolute individual right to bear any type of firearm" Id. at 124. Referring to Miller, the court stated that: "Since then, the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right." Id. Ultimately, the Fourth Circuit disposed of the Second Amendment challenge by recognizing that "courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a 'reasonable relationship to the preservation or efficiency of a well-regulated militia.'" Id.

Fifth Circuit

Why the District Court failed to recognize and comment on the Fifth Circuit's prior interpretation and analysis of the Second Amendment is unclear. Based on its statement that "[w]hether the Second Amendment recognizes an individual right to keep and bear arms is an issue of first impression within the Fifth Circuit," the Government can only speculate the District Court overlooked Fifth Circuit case law. However, this Court has held that the Miller court's "reasonable relationship" test must be applied to any Second Amendment challenge. [Page 20]

In United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971), the defendant challenged on Second Amendment grounds his conviction for failing to register a sawed-off shotgun Id. at 1135-36. In summarily rejecting the defendant's claim, this Court stated:

Appellant's remaining contention, that his constitutional right to bear arms had been infringed by the Act, Misconstrues the Second Amendment The Supreme Court dealt with such a constitutional attack directed against the National Firearms Act of 1934 in United States v. Miller ... holding that "In absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Id. (emphasis added). This Court reaffirmed its position less than a year later in United States v. Williams, 446 F.2d 486 (5th Cir. 1971), wherein it dismissed an identical Second Amendment challenge to the National Firearms Act simply by noting the "identical question was answered" by the Supreme Court in Miller and its decision in Johnson. Id. at 487.

Sixth Circuit

In United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976), the defendant appealed his conviction for failing to register a submachine gun in violation of the National Firearms Act. He contended that Miller paved the way for any "sedentary" member of a militia to possess a weapon having military [Page 21] capability. Id. at 105. The Warin court began by observing that "[i]t is clear that the Second Amendment guarantees a collective rather than an individual right." Id. at 106. Citing one of its earlier decisions, the court stated:

Since the Second Amendment right 'to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

Id. Ultimately, the court denied the Second Amendment claim because the defendant could not establish how his sedentary militia status would have any, much less a reasonable, relationship to the preservation or efficiency of a well regulated militia. Id. at 106-07.

Seventh Circuit

The Seventh Circuit reviewed whether the Second Amendment invalidated a village gun control ordinance in Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir.), cert. denied, 464 U.S. 863 (1983). After resolving the matter based on the principle that the Amendment does not apply to the states, the court felt compelled, for "sake of completeness," to opine on the scope of the Second Amendment:

Construing this language according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia. This is precisely the manner in which the Supreme Court interpreted the second amendment in United States v. Miller ... the only Supreme Court [Page 22] case specifically addressing that amendment's scope. There the Court held that the right to keep and bear arms extends only to those arms which are necessary to maintain a well regulated militia.

Id. at 270. Interestingly, the Seventh Circuit also stated:

Appellants devote a portion of their briefs to the historical analysis of the development of English common law and the debate surrounding the adoption of the second and fourteenth amendments. This analysis has no relevance on the resolution of the controversy before us. Accordingly, we decline to comment on it, other than to note that we do not consider individually owned handguns to be military weapons.

Id. at 270 n.8.

Only last month, the Seventh Circuit had an opportunity to revisit the Second Amendment's scope. In Gillespie v. City of Indianapolis, ___ F.3d ___, 1999 WL 463577 (7th Cir. 1999), a former police officer filed suit against the City of Indianapolis for reinstatement. The City terminated his employment after the Lautenberg Act passed, making it illegal for him to possess a firearm under § 922(g)(9) because of a prior conviction for a misdemeanor crime of domestic violence. In reviewing the officer's Second Amendment argument, the court stated:

The link that the amendment draws between the ability 'to keep and bear Arms' and '[a] well regulated Militia' suggests that the right protected is limited, one that inures not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia [Page 23]

Finally, the court confirmed that the Amendment established no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia.

Eighth Circuit

In one of the more comprehensive Second Amendment opinions, the Eighth Circuit affirmed a defendant's convictions for illegally possessing machine guns and failing to register firearms under the National Firearms Act United States v. Hale, 978 F.2d 1016 (8th Cir.), cert. denied, 507 U.S. 997 (1993). Though the court's analysis is lengthy, the Government commends the same to this Court's review An important aspect of Hale is its rejection of the argument that support can be found for an individual right to bear arms in the Supreme Court's decision in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). Though the Government has not previously referred to Verdugo-Urquidez in this brief, primarily because it has nothing to do with the issues herein, the District Court did partly rely on that case.

The Hale court stated:

Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265 ... Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias. This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia ... Whether the "right to bear arms" for militia purposes is [Page 24] "individual" or "collective" in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia. Id. at 1020.

Interestingly, the majority opinion took aim at the concurrence which disagreed that the First, Sixth, Eighth and Tenth Circuits properly interpreted Miller insofar as these courts said Congress had the power to regulate firearm possession, even when kept for lawful purposes. The majority stated:

The concurrence flies in the face of stare decisis in arguing that this court did not properly interpret the Second Amendment or Miller ... The concurrence would also flout uniform precedent from other circuits ....

Id. at 1019 n. 3. Finally, the Hale court dismissed the defendant's Second Amendment challenge noting:

Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test Membership in a hypothetical or "sedentary" militia is likewise insufficient ....

* * * * *

Applying these principles to the present case, we conclude that Hale's possession of the weapons in question was not reasonably related to the preservation of a well regulated militia. The allegation by Hale that these weapons are susceptible to military use is insufficient to establish such a relationship. Hale introduced no evidence and made no claim of even the [Page 25] most tenuous relationship between his possession of the weapons and the preservation of a well regulated militia.

Id. at 1020 (emphasis added).

Ninth Circuit

In Hickman v. Block, 81 F.3d 98 (9th Cir.), cert. denied, 519 U.S. 912 (1996), the plaintiff sued the County of Los Angeles and various cities and city officials under 42 U.S.C. § 1983 following the denial of his applications for concealed gun permits. The court noted the case turned on whether the plaintiff could show injury to an interest protected by the Second Amendment. Id. at 101. In rejecting his proffered Second Amendment injury, the court said:

We note at the outset that no individual has ever succeeded in demonstrating such injury in federal court The seminal authority in this area continues to be United States v. Miller .... Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia ... The Court's understanding follows a plain reading of the Amendment's text. The Amendment's second clause declares that the goal is to preserve the security of "a free state;" its first clause establishes the premise that a "well-regulated militia" is necessary to this end. Thus it is only in furtherance of state security that "the right of the people to keep and bear arms" is finally proclaimed.

Following Miller, "[i]t is clear that the Second Amendment guarantees a collective rather than an individual right...." [Page 26]

Id. at 101-02. The Hickman court also footnoted the Supreme Court's decision in Lewis for the proposition that federal firearm prohibitions do not "trench upon any constitutionally protected liberties." Id. at 101 n. 5.

Tenth Circuit

As in this case, the defendant in United States v. Oakes, 564 F.2d 384 (10th Cir.), cert. denied, 435 U.S. 926 (1978), presented a long historical analysis of the Amendment's background and purpose from which he concluded every citizen has the absolute right to keep arms. Id. at 387. The Tenth Circuit ignored this analysis observing that, since Miller, "[t]his broad conclusion has long been rejected."

Eleventh Circuit

In United States v. Wright, 117 F.3d 1265 (11th Cir.), cert. denied, 118 S.Ct. 584 (1997), the court upheld a defendant's conviction for illegally possessing machine guns and unregistered destructive devices. On appeal, the defendant argued that as a member of Georgia's unorganized militia, he had a Second Amendment right to possess machine guns and pipe bombs because they were used by contemporary militia fighting forces. Id. at 1271. Like the Eighth Circuit in Hale, supra, the Eleventh Circuit went through an in-depth analysis of the Second Amendment. Having cited Miller for its "reasonable relationship" test, the Wright court rejected defendant's contention that Miller's failure to examine the actual [Page 27] possession and use of the sawed-off shotguns and reliance instead on the guns' lack of military character in ultimately deciding the outcome of the case suggested that possession of a military-type weapon was indeed protected by the Constitution, regardless of whether the possession and use of the weapon was reasonably related to a "well regulated militia." Id. at 1272. The Wright court stated:

Without any evidence that the firearm at issue could have been used as a weapon by a well regulated militia group to provide for the common defense, there was no need for the Court to determine if the actual possession or use of the weapons bore a reasonable relationship to a well regulated militia. As the Eighth Circuit concluded in United States v. Hale, "[i]t is not sufficient to prove that the weapon in questions was susceptible to military use .... Rather, the claimant must prove that his or her possession of the weapon was reasonably related to a well regulated militia.

Id. (emphasis added).

E. Applying Miller And Its Progeny To This Case

Simply put, Emerson's Second Amendment claim must fail because he failed to establish a reasonable relationship between his possession of the Beretta pistol and service in a well regulated militia As Miller mandated, as this Court mandated in Johnson and Williams, supra, and as nearly every other federal court of appeals has mandated, a "reasonable relationship" between the possession or use of a firearm and the preservation or efficiency of a well regulated militia must be demonstrated before a person can invoke any Second Amendment protections. Not only did [Page 28] Emerson not satisfy this test, the District Court wholly failed to apply the test. By failing to apply the test, the District Court broke with the rule of stare decisis. Accordingly, this Court should reverse.

F. The Second Amendment Does Not Bar Reasonable Firearm Prohibitions

Even the District Court recognized the Second Amendment does not constitute an absolute barrier to the congressional regulation of firearms. It noted the felon in possession statute, 18 U.S.C. § 922(g)(1), was an example of a reasonable, constitutional firearm regulation. In the event this Court determines Emerson's possession of the Beretta pistol meets the Miller court's "reasonable relationship" test or enjoys a limited individual right to bear arms not coextensive with militia service, Emerson's Second Amendment argument nonetheless fails because § 922(g)(8) -- like its sister statute, the felon in possession statute -- is a reasonable and rationally-based regulation of firearms which may impinge on Second Amendment liberties.

In United States v. Warin, 530 F.2d 103, 107 (6th Cir. 1976), the court held that: "Even where the Second Amendment is applicable, it does not constitute an absolute barrier to the congressional regulation of firearms." Id. "Weapon bearing was never treated as anything like an absolute right by the common law." Id. (citing United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942) ("It was regulated by statute [Page 29] as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since.").

The Warin court felt compelled to address whether upholding defendant's conviction for failing to register his submachine gun, thereby placing its imprimatur on the taxation of firearms, was to impermissibly sanction a tax on a constitutionally protected activity under the Second Amendment. Id. In rejecting such contention, the Warin court analogized to First Amendment time, place and manner restrictions the Supreme Court had previously upheld. Id. "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses." Id. (quoting Cox v. New Hampshire, 312 U.S. 569, 574 (1941)). The court further stated:

As the legislative history of the [National Firearms Act] clearly shows, Congress was dealing with problems which threaten the maintenance of public order. There can be no question that an organized society which fails to regulate the importation, manufacture and transfer of the highly sophisticated lethal weapons in existence today does so at its peril. The requirement that no one may possess a submachine gun which is not registered to him in the National Firearms Registration and Transfer Record is a reasonable regulation for the maintenance of public order.

Id.

[Page 30]

In United States v. Tot, 131 F.2d 261, 266 (3rd Cir. 1942), rev'd on other grounds, 319 U.S. 463 (1943), the Third Circuit reached the same conclusion as the Warin court. In fact, rather than base its decision on Miller's "reasonable relationship" test, the Tot court expressly based its decision on the "broader ground" that the firearm regulation was "entirely reasonable" and did not "infringe upon the preservation of the well regulated militia protected by the Second Amendment." Id; see Lewis v. United States, 445 U.S. 55, 65 (1980) (Firearm regulations are permissible if there is "'some 'rational basis' for the statutory distinctions made ... or ... they 'have some relevance to the purpose for which the classification is made.''"); see also United States v. Giles, 640 F.2d 621, 624-27 (5th Cir. Unit A, 1981)("Therefore, 18 U.S.C. § 922(h)(1) must be upheld if the classification scheme has any rational basis to support it."); Gillespie v. City of Indianapolis, ___ F.3d ___, 1999 WL 463577 (7th Cir. 1999) (holding that a rational basis existed for Congress' enactment of § 922(g)(9) which imposed a firearms disability on those convicted of domestic violence misdemeanors).

By way of background, Section 922(g)(8) is part of the same regulatory scheme prohibiting the possession of firearms by felons. See Appendix 2. Congress' intent in enacting the overall regulatory scheme embodied in 18 U.S.C. § 922 was "to keep guns out of the hands of those who have demonstrated that they may not be [Page 31] trusted to possess a firearm without becoming a threat to society." Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112 (1983) (quoting Lewis v. United States, 445 U.S. at 63). By enacting the firearms ban, Congress "sought to rule broadly." Dickerson, 460 U.S. at 112. "Congress was reaching far and was doing so intentionally." Id. at 116. Congress was concerned with general availability of firearms "to those whose possession thereof was contrary to the public interest." Huddleston v. United States, 415 U.S. 814, 824 (1974). Congress considered the mere risk or potential for violence or irresponsible use sufficient reason to prohibit certain categories of persons from possessing firearms. See Dickerson, 460 U.S at 112 n. 6 ("Congress' intent in enacting § 922(g) ... was to keep firearms out of the hands of presumptively risky people."); Barrett v. United States, 423 U.S. 212, 220 (1976) (legislative history reflects a concern with "keeping firearms out of the hands of categories of potentially irresponsible persons"). It was against this backdrop that Congress enacted § 922(g)(8) in 1994.

[Page 32]

In 1994, Congress passed the Violence Against Women Act, which was incorporated within the larger Violent Crime Control and Law Enforcement Act of 1994.[4] Early in the legislative process, the Domestic Violence Firearm Protection Amendment was added to VAWA, which amendment constitutes the genesis of Section 922(g)(8). Introducing the amendment to the Senate, Senator Wellstone of Minnesota remarked:

The bill would make it clear -- and in this particular case we will be talking about an amendment -- that if you are not responsible enough to keep from doing harm to your spouse or your children, then society does not deem you responsible enough to own a gun.

* * * * *

Currently under Federal law, there is a list of circumstances, including conviction of felony and mental incompetence, that prevent individuals from legally owning a gun. This amendment would add to that list those who have been convicted of violently abusing their spouse or child. Anyone who has been convicted of that kind of crime or who has a restraining order issued against them because of threatened abuse would be prohibited from obtaining a gun.

[Page 33]

* * * * *

.... I think the best way I can summarize the importance of this amendment as a part of a crime bill to fight, to intervene, to prevent crime and violence in our country is to make it crystal clear that in all too many cases the only difference between a battered woman and dead woman is a gun. Let me repeat that one more time. In all too many painful cases the only difference between a battered woman and a dead woman is a gun. Over 4,000 women are killed each year at the hands of their spouse or a relative or a friend, and each year an estimated 150,000 incidents of domestic violence involve use of a weapon.

* * * * *

We must stop the violence in the streets and, Mr. President, even though I do not like to say this, we must also stop the violence in the homes.

139 CONG. REC. S14011-07 (1993) (emphasis added). Nearly eight months later, Senator Wellstone told representatives at the crime bill conference that:

It would prohibit anyone who has a restraining order issued against them from owning or possessing a gun ... Mr. President, I have said it once. I have said it twice. I have said it 10 times. All too often the only difference between a battered woman and a dead woman is the presence of a gun ... Statistics, Mr. President: every 12 seconds in the United States of America -- FBI statistics -- a woman is battered; every 12 seconds. Over 4,000 women are killed each year at the hands of their abusers. Please remember, Mr. President, this is the most under reported crime in America. An estimated 150,000 incidents of domestic violence involve a weapon. The New England Journal of Medicine in a recent article pointed out that with the history of battering, if there is a gun in the house or in the home, that woman is five times more likely to be murdered.

140 CONG REC. S7884-01 (1994).

[Page 34]

In the crime bill's conference report, Congress stated that:

The Conferees also note that Congress finds with respect to this provision that domestic violence is the leading cause of injury to women in the United States between the ages of 15 and 44; firearms are used by the abuser in 7 percent of domestic violence incidents ....

140 CONG. REC. H8772-03 (1994). Similar language accompanied the House crime bill ultimately approved by Congress and signed by the President.

Accordingly, should this Court determine Emerson's possession of the Beretta pistol satisfies Miller or that he enjoys a limited right to bear arms not coextensive with militia service, his Second Amendment argument nonetheless fails because § 922(g)(8) is a reasonable firearm prohibition. As noted in its legislative history, Congress enacted § 922(g)(8) because "in all too many painful cases the only difference between a battered woman and a dead woman is a gun." Though domestic violence is the most under reported crime in America, the statistics mentioned above are eye-opening. These statistics along with Congress' express recognition of the problem posed by domestic violence, form the rational basis for § 922(g)(8), especially where firearm possession is prohibited only in cases in which a restraining order has been issued, as opposed to all divorce cases or all court actions involving domestic disputes, regardless of whether a restraining order has been issued.

[Page 35]

Examining the facts of this case, one can also see how Section 922(g)(8) is a reasonable regulation for the maintenance of public order and how a rational basis exists for its being. At the restraining order hearing, Emerson's wife not only asked for a restraining order against Emerson, but established that he represented a credible threat of violence. (R. 1: 88-89). He already threatened to kill a friend of Mrs. Emerson and had made calls to her concerning such threats. Id. At the time, he was not working as a physician because he was not "mentally in a good state of mind. Id. at 101. Further, Emerson presented no evidence at the hearing to refute the contention that he represented a threat. Id. at 101-06. When the state judge issued his restraining order, it was only after the uncontroverted evidence established Emerson did represent a threat to his wife. That Emerson was prohibited from possessing a firearm while under such restraining order was reasonable in the context maintaining of the public order. The reasonableness of such prohibition is further demonstrated given the fact Emerson later pulled a gun on his wife and daughter, told an office worker he was going to kill his wife with his AK-47 and told police that, if his wife's friends set foot on his property, they would "be found dead on the parking lot." (R. 1: 189-94; R. 1: 202). Accordingly, Section 922(g)(8) is a reasonable and acceptable impingement on the Second Amendment.

[Page 36]

II.

THE DISTRICT COURT ERRED BY GRANTING
EMERSON'S MOTION TO DISMISS ON
FIFTH AMENDMENT DUE PROCESS GROUNDS

The District Court also found Section 922(g)(8) invalid under the Fifth Amendment. The court described the statute as "an obscure and highly technical statute with no mens rea requirement," concluding that it violated the Due Process Clause because it permitted conviction without a showing the defendant knew he was prohibited from possessing guns under the restraining order. (R. 1: 328). The District Court was mistaken both in finding that the statute contained no intent element and in concluding that due process required proof of knowledge of the law.

First, contrary to the District Court's understanding, Section 922(g)(8) clearly has an intent requirement, the defendant must have acted knowingly." The intent element is found in Section 924, which specifies the various penalties for violations of the different subsections of Section 922 and links the penalties to the level of intent. Section 924(a)(2) states that "[w]hoever knowingly violates subsection ... (g) ... of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both."

[Page 37]

Thus, the statute punishes only "knowing" violations of subsection (g)(8). United States v. Wilson, 159 F.3d 280, 289 (7th Cir.), cert. denied, 119 S. Ct. 2371 (1999). In addition, the statute conditions a violation on the existence of a court order "issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate." 18 U.S.C. § 922(g)(8)(A). The statute is only violated when the person knows he is subject to a protective order and "knowingly" violates the provision forbidding possession of a firearm.

The requirement of a knowing violation of the statute distinguishes this statute from the one the Supreme Court invalidated in Lambert v. California, 355 U.S. 225 (1957). In that case, a Los Angeles ordinance imposed criminal penalties on convicted felons remaining in the city for more than five days without registering with the city. Because the statute contained no intent element at all, the Court held that due process would be violated by applying the ordinance to one who had no notice of it. Id. at 229-230. The District Court believed § 922(g)(8) suffered from the same complete lack of mens rea as the ordinance in Lambert; but in overlooking § 922(g)(8)'s requirement of a knowing violation, the court was plainly mistaken in its conclusion.

[Page 38]

Second, the District Court was also mistaken in ruling that due process prevents Emerson's conviction because he purportedly was unaware of the law. That Emerson may not have known of the statute does not mean he could not commit a knowing" violation of it. A traditional rule in American jurisprudence is that ignorance of the law is no defense to criminal prosecution. Cheek v. United States, 498 U.S. 192, 199 (1991).

As the Supreme Court pointed out in Bryan v. United States, 118 S. Ct. 1939, 1945 (1998), a case that dealt with the intent requirement of another subsection of Section 922, "the term 'knowingly' does not necessarily have any reference to a culpable state of mind or to knowledge of the law." The Court explained that a "knowing" violation of a statute "merely requires proof of knowledge of the facts that constitute the offense," as distinguished from knowledge of the law. Id. at 1946. Other cases illustrate the same principle. In United States v. Bailey, 444 U.S. 394, 408 (1980), the Court held that a knowing violation of the escape statute, 18 U.S.C. 751 (a), was proved if the escapee "knew his actions would result in his leaving physical confinement without permission."

And in Staples v. United States, 511 U.S. 600, 619 (1994), the Court held that to prove the charge of unlawful possession of an unregistered machine gun, the Government must show the defendant was aware the firearm possessed the [Page 39] characteristics of a machine gun, as defined in the statute. The Court did not require the Government prove the defendant knew his possession was unlawful. Finding that Congress could not have intended to omit completely an intent element for this offense, the Court decided "the usual presumption that a defendant must know the facts that make his conduct illegal should apply." Similarly, the Government must prove that a defendant charged with shipping child pornography knew both the nature of the material and the fact that the individual depicted was a minor, but not that he knew it was illegal to ship such material. United States v. X-Citement Video, 513 U.S. 64, 72, 77 (1994); see also Rogers v. United States, 118 U.S. 673, 675 (1998).

Here, it is enough if the defendant knows the facts that constitute the offense, (i.e., that he is subject to a protective order and in possession of a firearm); he need not have known of the existence of the statute criminalizing possession of a firearm by someone subject to a restraining order. There is no dispute Emerson knew he possessed the gun in question and was subject to a restraining order. No further knowledge was required. The law is clear that Emerson was not entitled to specific notice that his conduct was illegal. See also United States v. Branch, 91 F.3d 699, 737 (5th Cir. 1996); United States v. Baytank (Houston), Inc., 934 F.2d 599, 612-613 (5th Cir. 1991).

[Page 40]

Three other courts of appeals have considered the same due process argument directed against Section 922(g)(8), and all three have rejected it. United States v. Meade, 175 F.3d 215, 225-226 (1st Cir. 1999); United States v. Bostic, 168 F.3d 718, 722-723 (4th Cir.), cert. denied, 119 S. Ct. 2383 (1999); United States v. Wilson, supra, 159 F.3d at 288-289. Those courts have correctly relied on the well-established principles outlined above, and this Court should hold likewise.

The District Court also thought Section 922(g)(8) was a highly technical statute that risked ensnaring innocent people, referring to the Supreme Court's treatment of a very few statutes, like tax and currency structuring laws, in which the Court has required specific knowledge of the law allegedly violated. This heightened level of intent, which is an exception to the traditional rule that ignorance of the law is no excuse, is rarely required, however. And in both contexts referred to, the Supreme Court's conclusion has arisen from its interpretation of the term "willfully," already a higher level of intent than a "knowing" violation of a statute. See Ratzlaf v. United States, 510 U.S. 135 (1994); Cheek v. United States, 498 U.S. at 200-202; see also Bryan, 118 S. Ct. at 1946. It may be reasonable in those contexts to conclude that Congress used the term "willfully" to mean not merely acting with knowledge that one's conduct was unlawful but with awareness of the specific provision of law violated. It is quite another matter to find such a congressional [Page 41] intent from use of the word "knowing," a clearly lower level of intent and one that, as shown above, has always been interpreted to mean simple knowledge of the essential facts.

Furthermore, the unusually stringent willfulness requirement imposed in Cheek and Ratzlaf stems from the daunting complexity of the tax laws and the fear such laws and the similarly arcane requirements of the financial structuring statutes would result in criminal punishment for innocent citizens attempting in good faith to comply with their tax obligations. The firearm regulatory scheme at issue in this case is not even remotely comparable to the tax code in complexity. It is certainly well-known that, while firearm possession is generally lawful, there are numerous restrictions and regulations surrounding the dangerous commodity of firearms. And the list of those disabled from gun possession in Section 922 is plainly stated and unambiguous. United States v. Wilson, 159 F.3d at 288. It is true that gun ownership is generally an entirely innocent act. "But possession of firearms by persons laboring under the yoke of anti-harassment or anti-stalking restraining orders is a horse of a different hue." United States v. Meade, 175 F.3d at 226. Once Emerson became subject to the restraining order, he should no longer have been "sanguine about the legal consequences of possessing a firearm." Id. In short, the restraining order itself should have put Emerson on notice that certain legal [Page 42] restrictions could be applicable to him. If "knowingly" in this statute were interpreted to mean knowledge of the existence of the particular provision, then many other criminal statutes not commonly used or well-known to the general public would be largely unenforceable, and the traditional principle that "ignorance of the law is no excuse" would be gutted.

In any event, the record demonstrates Emerson had actual notice of the statute he was charged with violating. When Emerson bought the Beretta pistol in question, less than a year before his appearance in court and the entry of a restraining order, he filled out an ATF Form 4472 "Firearms Transaction Record" that asked a number of questions designed to prevent those disabled from gun ownership from purchasing a gun. (Govt. Ex. 7). One of the questions was whether Emerson was subject to a court order restraining him from harassing, stalking, or threatening an intimate partner or child; and a further notice explained in detail the terms of § 922(g)(8). Id. Whether or not Emerson carefully read the entire form he filled out is irrelevant. Whether or not he remembered the form's admonition that he could not possess a gun is irrelevant. He cannot now claim he had no way of knowing of the existence of this statute, or that the Government unfairly refrained from giving notice of this allegedly obscure statute. In fact, Emerson cannot claim [Page 43] that he had no notice of the statute. The existence and substance of this firearm prohibition was clearly before him.

The situation in this case is not unlike the one presented the Supreme Court in Huddleston v. United States, 415 U.S. 814 (1974). In Huddleston, the defendant challenged his conviction for knowingly making a false statement on a Form 4473. He argued the false statement statute, Section 922(a)(6), was so ambiguous it should be construed leniently in his favor. Id. at 818. While addressing this contention, the Court reviewed the notice he received in executing the Form 4473. The Court stated:

We perceive no grievous ambiguity or uncertainty in the language and structure of the Act. The statute in question clearly proscribes petitioner's conduct and accorded him fair warning of the sanctions the law placed on that conduct. [Defendant] was not short of notice that his actions were unlawful. The question he answered untruthfully was preceded by a warning in boldface type that "an untruthful answer may subject you to criminal prosecution." The question itself was forthright and direct, ... Finally, petitioner was required to certify by his signature that his answers were true and correct and that he understood that the making of any false oral or written statement ... with respect to this transaction is a crime punishable as a felony. This warning also was in boldface type. Clearly, petitioner had adequate notice and warning of the consequences of his action.

Id. at 830 (emphasis added). Likewise, Emerson was "not short of notice that his actions were unlawful" -- clearly, Emerson had adequate notice and warning of the consequences of his action.

[Page 44]

Further, in United States v. Giles, 640 F.2d 621 (5th Cir. Unit A, 1981), the defendant challenged his conviction for being a felon in receipt of a firearm, in violation of § 922(h)(1). Both of the firearms he was convicted of illegally receiving were purchased from a sporting goods store which required he execute a Form 4473. Id. at 622. The Form 4473 required he answer whether he had been "convicted in any court of a crime punishable by imprisonment for a term exceeding one year? Id. On appeal, the defendant argued § 922(h)(1) violated the due process clause of the Fifth Amendment because it failed to provide adequate notice of the conduct it proscribed. Id. at 624.

Like the Government did earlier in this brief, the Giles court focused on whether Lambert mandated the statute be struck down because due process did not condone one who is "wholly passive and unaware of any wrongdoing [being] brought to the bar of justice for condemnation in a criminal case."' Id. at 628. Though the court recognized Lambert was limited by subsequent decisions of the Supreme Court, "lest it swallow the general rule that ignorance of the law is no excuse," it stated:

And [defendant's] situation, or course, is far different from that of Ms. Lambert, for he was directly confronted with accurate written notice of the conduct proscribed by the statute when he filled out and signed a Form 4473 as part of each firearm purchase.

[Page 45]

Id. at 628. The court also noted the statute did give "fair notice, understandable by a person of ordinary intelligence, of the conduct it proscribes." Id. at 628-29. The court concluded:

While we might sympathize with his protestations that he did not know his conduct was illegal, our sympathy is tempered by the fact that each Form 4473 plainly warned him that he could not legally buy a gun ... That he failed to heed it is his own fault.

Id. at 629.

Because Emerson received actual notice that he could not possess a firearm while under a restraining order, "that he failed to heed it is his own fault. Accordingly, Emerson's due process argument must fail.

[Page 46]

CONCLUSION

For the reasons discussed above, the District Court erred in granting Emerson's motions to dismiss under the Second and Fifth Amendments. This Court should reverse such dismissal, reinstate the Indictment and remand the case for trial.

[Page 47]

CERTIFICATE OF SERVICE

I certify two copies of the foregoing Appellant's Brief were served on Mr. Timothy Crooks, 600 Texas Street, Suite 100, Ft. Worth, Texas, 76102-4612, by first class mail on the 27th day of August, 1999.

	William B. Mateja

[Page 48]

FOOTNOTES:

[1.] Notice 4 on the ATF Form 4473 stated as follows:

Under 18 U.S.C. 922 firearms may not be sold to or received by persons subject to a court order that: (A) was issued after a hearing of which the person received actual notice and had an opportunity to participate; (b) restrains such person from harassing, stalking or threatening an intimate partner or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner of child; and & by it terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

[2] A copy of Section 922(g)(8), as well as the entirety of Section 922(g), is attached to this brief as Appendix 2.

[3] The Second Amendment states: "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."

[4] The Violence Against Women Act, H.R. 1133, was introduced on February 24, 1993. On November 17, 1993, the House Committee on the Judiciary ordered it reported to the House. On November 20, 1993, the Committee Report, H. Rept. 103-395, was filed in the House and H.R. 1133 passed the House under suspension of the rules. Similar language was included in Title IV of H.R. 3355, the Violent Crime Control and Law Enforcement Act that was signed the President on September 13, 1994. On the Senate side, the Violence Against Women Act was introduced to the Senate Judiciary Committee as S. 11. The committee filed its report, S. Rept. 103-138, on September 10, 1993. The bill was approved by the committee and ordered favorably reported on May 27, 1993. The VAWA passed the full Senate as part of the Violent Crime Control and Law Enforcement Act of 1993, S. 1607 which was ultimately signed into law by the President.