untitled

Pursuant to Fed. R. App. P. 26.1 and 29 (c) and 5th Cir. R. 26.1, 28.2.1, and 29.2, the undersigned counsel of record for amicus curiae, Citizens Committee for the Right to Keep and Bear Arms, in United States v. Emerson, No. 99-10331, certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

TABLE OF CONTENTS .................................................................... ii

TABLE OF AUTHORITIES ............................................................... iv

STATEMENT OF IDENTITY, INTEREST OF
AMICUS CURIAE AND CONSENT .............................................. viii

I. INTRODUCTION ........................................................................... 1

CONCLUSION ...................................................................................34

CERTIFICATE OF SERVICE ............................................................ 35

10 U.S.C. § 311 ................................................................................... 21

10 U.S.C. § 311(a) ......................................................................... 23, 29

18 U.S.C. § 922(g)(8) ......................................... 1, 2, 4-9, 12, 13, 28, 33

18 U.S.C. § 922(g)(9) .............................................................. 1, 4, 5, 34

Brady Law of 1993 ......................................................................... 13, 32

Firearms Owner Protection Act of 1986 .............................. 13, 30, 31, 33

Freedmen’s Bureau Act of 1866 [14 Stat. 176 (1866)] ................... 13, 14

Gun Control Act of 1968 ........................................................... 13, 30, 31

Cases v. U.S., 131 F.2d 916 at 922-923 (1st Cir. 1942) ...................... 23

Hickman v. Block, 81 F.3d 98 (9th Cir. 1996) ..................................... 23

U.S. v. Ficke, 58 F.Supp. 2d 1071 (D. Neb. 1999) ....................... 1, 4-6

U.S. v. Gomez, 92 F.3d 770 (9th Cir., 1996). ..................................... 11

U.S. v. Miller, 307 U.S. 174 (1939) ................................. 22-24, 26, 27

U.S. v. Panter, 688 F.2d 268 (5th Cir., 1982) ................................... 11

79 Cong. Rec. 11973 (1935) ............................................................. 18

Cong. Globe, 39th Cong., 1st Sess. 2764 (1866) ............................... 15

Documentary History of the Ratification of the Constitution,
Vol. 2, Pages 508-509 (December 6, 1787) ....................................... 26

Federalist Paper # 29, Alexander Hamilton ....................................... 25

H.R. Rep. No. 1120, 77th Cong., 1st Sess. 2 (1941) .......................... 21

George Mason, Virginia Convention Debates of June 16, 1788
[Reprinted in Jonathan Elliot, ed, Vol. 3, The Debates in the
Several State Conventions, at 425-426 (1941)] .................................. 25

Letters from the Federal Farmer to the Republic,
Richard Henry Lee, Letter XVIII, May, 1788. .................................... 24

National Firearms Act: Hearings on H.R. 9066, Before the House
Committee on Ways and Means, 73d Cong., 2d Sess. 19 (1934) ....... 16

S. Rep. No. 82, 75th Cong., 1st Sess. 1-2 (1937) .............................. 18

Writings of Sam Adams, Vol III, 251 (1906). .................................... 26

“Husband Murders Wife Disarmed by Police,” Women & Guns,
November (1994). ....................................................................... 10-11

Justice Hugo Black, The Bill of Rights, N.Y. University
Law Review, 35 at 873-74 (1960) .................................................... 23

Virginia on Guard: Civilian Defense and the State Militia
in the Second World War, Marvin W. Schlegel, (1949) .................... 21

The Citizens Committee for the Right to Keep and Bear Arms is a national grassroots organization dedicated to preserving the individual right to keep and bear arms as enumerated and codified under the Second Amendment and numerous State Constitutional protections. The Citizens Committee works to educate lawmakers on the federal, state and local levels on the importance of protecting individual gun ownership and our Constitutional heritage and maintains a Washington, D.C. office for contacting all members of Congress. Fifty-eight current Members of Congress sit on the Citizens Committee National Advisory Board. The Citizens Committee represents over 650,000 members and supporters nationwide with members in every state of the union. More information is available at www.ccrkba.org

I. INTRODUCTION

A. Argument Summary

Section 18 U.S.C. § 922(g)(8)[1] is unconstitutional under the Second and Fifth Amendments. First, there is no due process under this rarely used law or “notice” of substantial penalties awaiting an unsuspecting person. Second, this court should affirm the District Court’s decision which has already been followed by U.S. v. Ficke, 58 F. Supp. 2d 1071, 1073 (D. Neb. 1999) which found 18 U.S.C. § 922(g)(9) unconstitutional. Third, there is no requirement of a judicial finding [of dangerousness], creating an overly broad statute that casts a wide net far beyond Dr. Emerson. Fourth, this law could decrease public safety, as victims are disarmed as part of unstandardized court orders, particularly “mutual restraining orders”. Fifth, Congress has repeatedly held that the Second Amendment is an individual right and it is time for this Court to uphold this individual right.

B. Factual Background

Unlike the previous classes of people prohibited from firearm ownership (people convicted of certain crimes, dishonorably discharged from the military, [Page 2] drug/alcohol addicts, and the adjudicated mentally-incompetent) 922(g)(8) includes prohibitions where no crime has been committed and no mental competency finding nor threat assessment is required. The court is only considering a dissolution of marriage. Dr. Emerson was charged under an “obscure, highly technical statute.”[2] While 922(g)(8) is rarely used, Constitutional questions abound. This brief illustrates why 922(g)(8) is unconstitutional on Fifth and Second Amendment grounds.

II. FIFTH AMENDMENT VIOLATION

A. Emerson - 18 U.S.C. § 922(g)(8)

Section 922(g)(8) violates due process under the Fifth Amendment. The government argues that Dr. Emerson received “notice” that he could not possess firearms if a restraining order was issued against him. The problems with this reasoning are multi-faceted.

1. Dr. Emerson legally purchased the Beretta pistol in 1997 and correctly filled out the Form 4473 by truthfully answering “no” to the question on restraining orders. [Page 3]

2. Form 4473 includes many technical provisions presenting problems for understanding each subsection. While the government contends Dr. Emerson is responsible for every little detail on this four-page, small-type document, it is unreasonable to ask someone to recall all details over a year later for even a simpler form, such a rental car agreement. Moreover, unlike a car rental agreement, Dr. Emerson was not given a copy of Form 4473 for future review.

3. Even if Dr. Emerson read Form 4473 thoroughly and memorized every detail, it NEVER informed him that he must get rid of his existing firearms. The relevant portions read:

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…)

IMPORTANT NOTICES…

4. Under 18 U.S.C. 922, firearms may not be sold to or received by persons subject to a court order…[emphasis added]

[Click here for a more thorough discussion and view a copy of Dr. Emerson's signed 4473]

Dr. Emerson was never informed by either Form 4473 or by the court that he must remove his previously and legally-owned firearms or face substantial federal felony penalties (if and when he became subject to a restraining order). It is a gross distortion of our justice system to claim that any person had “fair notice” [Page 4] of this law under such circumstances. Therefore, 922(g)(8) is an unconstitutional Fifth Amendment violation.

B. Ficke - 18 U.S.C. § 922(g)(9)

In U.S. v. Ficke, the defendant was charged with violating subsection 18 U.S.C. § 922(g)(9) which makes it unlawful for any person “convicted in any court of a misdemeanor crime of domestic violence” to possess a firearm.[3] Ficke argued that 922(g)(9) violated the notice and fair warning requirements of the due process clause of the U.S. Constitution.

In 1994, Ficke entered a pro se plea of no contest to a charge of misdemeanor domestic violence assault and was sentenced to six-months probation and ordered to complete anger-control classes. Over four-years later, he was arrested at his home after his wife reported an alleged domestic assault.[4] At the home, officers found and confiscated various rifles even though nobody claimed the alleged assault involved any guns.[5] Ficke was indicted and pleaded [Page 5] guilty, although the court allowed a motion to dismiss before sentencing in light of the Emerson ruling.[6]

Ficke argued that it is fundamentally unfair to punish him for violating 922(g)(9) when: 1) his conduct in possessing the firearms was “wholly passive,” and 2) he did not know that federal law proscribed his possession of firearms.[7] In granting that motion, the court found that 922(g)(9) created an impermissible strict liability crime that violates fundamental due process principles of notice and fair warning. The court concluded:

Section 922(g)(9) criminalizes behavior that for two years following this defendant’s misdemeanor conviction was entirely innocent under both federal and state law. The defendant therefore received no warning during the underlying misdemeanor proceedings, at which he appeared pro se, that continued possession of his hunting weapons would subject him to a federal felony prosecution. The defendant had no actual notice of the enactment of this obscure, hard-to-find provision, nor would he have had a reasonable opportunity to discover it.[8]

The same rationale should compel this court to find that 922(g)(8) unconstitutionally imposes strict criminal liability when the defendant “simply did [Page 6] not know and did not receive fair warning that his conduct had become unlawful.”[9]

III. SECOND AMENDMENT VIOLATION

The burden of proof in civil proceedings is much lower than in criminal cases, yet the consequences under 922(g)(8) are severe. This law does not even require a judicial finding of fact to deny an individual’s right to keep and bear arms. Therefore, no standards exist for termination of this right guaranteed under the Second Amendment, and of the means to exercise the right of self-defense as recognized in all courts and guaranteed under the Ninth Amendment. These fact-less, baseless grounds of deprivation contrasts sharply with other prohibited categories.

A. No Judicial Finding Required for Loss of Right to Keep and Bear Arms

The Government suggests that Dr. Emerson posed a “credible threat” to his wife’s boyfriend, his wife, and his daughter. While this evidence might be relevant if the statute in question required any type of judicial finding of threat, the fact is [Page 7] that the law was ruled unconstitutional because the law does not require any such evidence or finding. By trying to justify the law with allegations of threatening behavior, the government proves Judge Cumming’s assertion that it is not difficult, or unreasonable, to require such evidence, and that 922(g)(8) is unconstitutional for failing to limit its scope to credible threats.

Assuming, for a moment, all the Government’s allegations against Dr. Emerson are true, then he would fit into any properly narrowed statute barring firearm possession from people subject to a restraining order with a finding that the individual posed a “credible threat.” Judge Cummings held that such a revised statute “would not be so offensive.”[10]

The only other reason for government’s inclusion of such statements about Dr. Emerson is to influence this Court against him. The vast majority of constitutional case law has been built upon individuals with less than ideal personal histories, as the Prosecution has found these persons’ rights easier to violate. Dr. Emerson is entitled to the same respect for his constitutional rights as was accorded to Mr. Miranda, Mr. Escobar, Mr. Lopez, and other imperfect individuals whose rights were violated. While examining Dr. Emerson’s alleged [Page 8] conduct is an interesting aside, it is irrelevant when considering the constitutionality of the statute. The real issue is the broad scope of the act.

B. Potentially Affects Millions Of Citizens Per Year

Section 922(g)(8) was ruled overly-broad, and a Second Amendment violation, based on the immense number of people entrapped into criminal activity -- not because of Dr. Emerson’s particular circumstances. From 1975-1997, the U.S. averaged more than 1 million divorces each year.[11] In 1997 alone, there were over 870,597 divorces, providing over 1,741,194 opportunities for either party to request a restraining order that would automatically bar all firearms from the person(s) subject to such orders. Divorce can include emotional rhetoric and retaliatory actions. Examples include depletion of jointly held bank accounts, incursion of substantial credit card debt, and unfounded allegations of domestic abuse and even child abuse. Allowing an automatic ban on firearms possession without any judicial finding of a fact is a violation of an individual’s Second Amendment rights. [Page 9]

C. Decreasing Public Safety by Disarming Victims

The number of people prohibited from owning guns by civil court orders is likely to escalate as states consider “mutual restraining orders.” In cases of actual domestic violence, mutual restraining orders automatically bar gun possession from both the perpetrator and the victim under 922(g)(8). Disarming victims is a tragic and unforeseen side effect of 922(g)(8) because of its unconstitutionally broad provisions. In answer to the often-repeated comment about saving women’s lives through gun control, the following two brief examples illustrate the danger of 922(g)(8).

Barbara Thompson had a restraining order on an ex-boyfriend named Leotis Martin, who had previously assaulted and broke her arm and was under a court order to stay away from Barbara and her property after a break-in. Martin broke in again and was killed by his intended victim. Richmond County Sheriff Dale Furr described the events:

…Thompson was … watching television when she heard the back door being broken down. She suspected it was Martin, and she ran immediately to the bedroom door, locked it, and grabbed her revolver … He kicked down the bedroom door, fired a shot at her and missed, and she fired back at him and didn’t miss.[12]

While the court order did not disarm the attacker, it would have likely disarmed the intended victim if mutual orders were granted without any judicial finding of fact. Such events prove disastrous for women. Polly Przybyl was disarmed by the Cheektowaga, New York police after Lee, her estranged husband of 17-years, tracked her to her mother’s home and attempted to gain entrance. The police took Ms. Przybyl’s firearms even though she had called the police; and she had both a pistol permit and a Federal Firearms License. She told the police that her husband had guns without the necessary permits and that she was in grave danger. Two days later, she obtained a restraining order, but the police failed to collect his firearms. On August 22, 1994, Lee returned, walked to the back of the house with Polly, where he stabbed her with a knife and killed her. Lee then retrieved a rifle and shot Polly’s mother. Lee shot himself hours later while police were negotiating his surrender.[13] Polly’s sister, Mindy stated:

I resent that the police disarmed my sister…

Even though I personally don’t believe in guns my sister knew how to protect herself with a gun. I believe she could have saved herself and our mother had she been armed… [Page 11]

If she had a gun at least she and my mother would have had a chance.[14]

The policy of disarming the victim led to the murders of Polly and her mother.

Disarming victims not only violates their right to keep and bear arms under the Second Amendment, but by extension, their means to self-protection as recognized by every court and guaranteed by the Ninth Amendment. So paramount is the right of self-defense/self-preservation, that convicted felons may raise it at trial for unlawful possession of a firearm.[15]

In Gomez, the Second Amendment is discussed by all three Judges. Judge Kozinski in Footnote Seven stated:

The Second Amendment embodies the right to defend oneself and one’s home against physical attack.[16]

While separately concurring, Judge Hall stated “he would not join” Footnote Seven.[17] while Judge Hawkins stated that it, “alludes to an interesting and difficult question I would leave for another day.”[18] [Page 12]

While Mrs. Przybyl’s particular tragedy was caused by a strict and in this case one-sided policy of removing firearms from domestic violence situations, including from victims, and not through a restraining order under 922(g)(8), it illustrates the dangers of eliminating the individual right to keep and bear arms without requiring judicial findings of fact.

The automatic prohibition of all gun ownership through a civil court marriage-dissolution proceeding is not comparable to a person convicted of a crime, dishonorably discharged, or mentally incompetent. No prohibiting conduct must be alleged, only the issuance of a restraining order without any finding of fact.

Like Emerson and Ficke, most people are not likely to object to a restraining order with a potential ex-spouse when no information is provided regarding elimination of Constitutional rights and felony penalties upon the order’s issuance. As written, 922(g)(8) entraps people into becoming federal felons upon leaving the courthouse. Constitutional rights should not be vacated so easily, especially without any knowledge provided.

IV. Congress Interprets the Second Amendment [Page 13]

This court should interpret 922(g)(8) in a manner that protects the individual right to keep and bear arms because Congress has consistently endorsed such an interpretation of the Second Amendment, as well as repeatedly supported individual firearm ownership in general. These endorsements include: the Freedmen’s Bureau Act of 1866, approval of the Fourteenth Amendment, the National Firearms Act of 1934, the Federal Firearms Act of 1938, the 1941 Private Property Acquisition Act, the 1968 Gun Control Act, the Consumer Product Safety Act of 1976, the current Militia Law, The Report of the Subcommittee on the Constitution in 1982, the Firearms Owner Protection Act of 1986, and the Brady Law of 1993.[19]

A. The Freedmen’s Bureau Act of 1866 and the Fourteenth Amend.

After the Civil War, slavery was ended and Southern States enacted slave codes, which made it illegal for freemen to exercise basic civil rights; including the right to purchase, own and carry firearms.[20] Congress responded to this [Page 14] challenge twice through the passage of the Freedmen’s Bureau Act and the Fourteenth Amendment.

The Freedmen’s Act read in part:

the right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery.[21]

Congress enacted this law through a veto override of more than two-thirds. This same two-thirds also adopted the Fourteenth Amendment, which states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law...[22]

Senator Jacob Howard, when introducing the Fourteenth amendment, explained that its purpose was to protect “personal rights,” including “the right to keep and bear arms,” from infringement by the States.[23] Eighty years after the ratification of the Second Amendment, more than two-thirds of Congress believed with certainty that the Second Amendment enumerated an individual right; enough [Page 15] to include it in both an Act and an Amendment designed to protect the civil rights of individuals formerly held as slaves.

B. The National Firearms Act of 1934 (NFA)

Almost seventy years later, Congress began to consider what became the NFA.[24] The NFA, through a system of taxation and registration, severely restricted machineguns, short-barreled shotguns and rifles.[25]

Before passage of the NFA, there was detailed discussion between the Attorney General and lawmakers as to how to pass the law without violating the Second Amendment. These discussions illustrate that lawmakers considered the Second Amendment an individual right. During one crucial hearing discussion, Congressman David J. Lewis inquired about reconciling the bill with the Second Amendment’s individual right to keep and bear arms:

MR. LEWIS: Lawyer though I am, I have never quite understood how the laws of the various States have been reconciled with the provision in our Constitution denying the privilege to the legislature to take away the right to carry arms. Concealed-weapon laws, of course, are familiar in the various States; there is a legal theory [Page 16] upon which we prohibit the carrying of weapons--the smaller weapons.

ATTORNEY GENERAL CUMMINGS: Do you have any doubt as to the power of the Government to deal with machine guns as they are transported in interstate commerce?

MR. LEWIS: I hope the courts will find no doubt on a subject like this, General; but I was curious to know how we escaped that provision in the Constitution.

ATTORNEY GENERAL CUMMINGS: Oh, we do not attempt to escape it. We are dealing with another power, namely, the power of taxation, and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say, “We will tax the machine gun,” and when you say that “the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated,” you are easily within the law.

MR. LEWIS: In other words, it does not amount to prohibition, but allows of regulation.

ATTORNEY GENERAL CUMMINGS: That is the idea. We have studied that very carefully.[26] [Page 17]

Throughout the debates, it is clear that there was a careful respect for the Second Amendment and concern about having the NFA written to include any unconstitutional infringement upon the individual right to keep and bear arms.

C. The Federal Firearms Act of 1938 (FFA)

In 1938, Congress again undertook firearms issues by passing the FFA, which regulated interstate commerce in firearms and prohibited possession of firearms by felons where an interstate nexus could be demonstrated.[27] The FFA raised concerns over the infringement of rights guaranteed by the Second Amendment as well as highlighted Congressional support for individual gun ownership. In the early discussions on Second Amendment limitations, Senator William King stated to Senator Copeland, the chief sponsor, that “we have a constitutional provision that right of the people to keep and bear arms shall not be infringed ... [and he] was wondering if this bill was not in contravention of the constitutional provision.”

Denying that the FFA infringed upon the Second Amendment, Copeland argued that: [Page 18]

[t]he part relating to militia is important ... [as the] first part of the constitutional provision.

Senator McKellar responded,

while [the Second Amendment] refers to the militia, the provision is all-inclusive and provides that the right of the people to keep and bear arms shall remain inviolate.[28]

Since the FFA related to regulation of Interstate Commerce, not individual gun ownership, little more mention to the individual right to keep and bear arms under Second Amendment protection was discussed. In support of individual gun ownership, the Senate Committee explained that the FFA was designed to impact criminals, not law-abiding citizens:

The bill under consideration...is designed to regulate the manufacture of and the shipment through interstate commerce of all firearms. ...It is believed that the bill above referred to will go far in the direction we are seeking and will eliminate the gun from the crooks’ hands, while interfering as little as possible with the law-abiding citizen from whom protests have been received against any attempt to take from him his means of protection from the outlaws who have rendered living conditions unbearable in the past decade.[29]

D. The Property Requisition Act of 1941 (PRA) [Page 19]

Congress asserted the Second Amendment as an individual right by exempting privately-owned firearms from the PRA. Less than two months before Pearl Harbor, Congress passed legislation authorizing Presidential requisition of many properties with military uses from the private sector upon payment of fair compensation.[30]

Protections for Second Amendment rights were included in the PRA:

That whenever the President, during the national emergency declared by the President on May 27, 1941, but not later than June 30, 1943, determines that (1) the use of any military or naval equipment, supplies, or munitions, or component parts thereof, or machinery, tools, or materials necessary for the manufacture, servicing, or operation of such equipment, supplies, or munitions is needed for the defense of the United States; (2) such need is immediate and impending and such as will not admit of delay or resort to any other source of supply; and (3) all other means of obtaining the use of such property for the defense of the United States upon fair and reasonable terms have been exhausted, he is authorized to requisition such property for the defense of the United States upon the payment of fair and just compensation for such property to be determined as hereinafter provided, and to dispose of such property in such manner as he may determine is necessary for the defense of the United States....

Nothing contained in this Act shall be construed-

(1) to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law), [Page 20]

(2) to impair or infringe in any manner the right of any individual to keep and bear arms, or

(3) to authorize the requisitioning of any machinery or equipment which is in actual use in connection with any operating factory or business and which is necessary to the operation of such factory or business.[31]

Originally, the bill did not include language protecting the individual right to keep and bear arms, but the House Military Affairs Committee added these provisions, noting:

It is not contemplated or even inferred that the President, or any executive board, agency, or officer, would trespass upon the right of the people in this respect. There appears to be no occasion for the requisition of firearms owned and maintained by the people for sport and recreation, nor is there any desire or intention on the part of the Congress or the President to impair or infringe the right of the people under section 2 of the Constitution of the United States, which reads, in part, as follows: “the right of the people to keep and bear arms shall not be infringed.” However, in view of the fact that certain totalitarian and dictatorial nations are now engaged in the willful and wholesale destruction of personal rights and liberties, your committee deem[s] it appropriate for the Congress to expressly state that the proposed legislation shall not be construed to impair or infringe the constitutional right of the people to bear arms. In so doing, it will be manifest that, although the Congress deems it expedient to grant certain extraordinary powers to the Executive in [Page 21] furtherance of the common defense during critical times, there is no disposition on the part of this Government to depart from the concepts and principles of personal rights and liberties expressed in our Constitution.[32]

This provision was essential for the preservation of the individual right to keep and bear arms because if private guns were registered, the government could confiscate them. Compare the retention of private guns with the plight of the organized portion of the militia. The War Department began taking back all the rifles it had previous issued to them.[33] If, as the Government contends, the entire militia is only the “select” militia (the National Guard), then the Second Amendment is the first guarantee of the Bill of Rights to cease to exist. Under the PRA, the organized portion of the militia was disarmed and could be again.

E. The Current Militia Law of 1956

Congress currently defines the militia under Title 10, Chapter 13 of the U.S. Code.

Sec. 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except [Page 22] as provided in section 313 of title 32, 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.

(b) The classes of the militia are –

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. [emphasis added]

Dr. Emerson is between the ages of 17 through 45 and is therefore part of the militia as defined under current law by Congress. This definition is also supported by the Supreme Court in U.S. v. Miller,[34] which reads:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.[35] [Page 23]

Applying this very narrow definition under Section 311(a) (which may be gender biased and [age] discriminatory by today’s standards), Dr. Emerson qualifies as part of the militia. Although he is currently not called into active service, according to Miller, he can “keep” his Beretta 92 pistol, which is identical to the one issued in the Armed Forces, until called to bear arms to provide for the common defense.

Congress and the Supreme Court in Miller concur on the definition of the militia. The Court never questioned whether Mr. Miller was part of the militia, a very troubling fact for the “collective” rights theorists. If Miller was not part of the militia to begin with, then there would be no need to examine whether the firearm was a militia-type. It would have been a simple “no standing” case, similar to Hickman v. Block, 81 F.3d 98, 96 (9th Cir., 1996). Nobody from the “collective rights” theory has ever explained this discrepancy.[36]

Congress, along with the Miller Court, upheld the beliefs of the Framers of our Constitution, who were avid supporters of individual gun ownership and its protection under the Second Amendment. Many of them also detailed the value of [Page 24] individual firearm ownership toward “the preservation or efficiency of a well regulated militia”[37] as required under the Miller court and detailed under the current Militia Law. These same Framers feared the destruction of the “general militia” as defined by Congress and Miller and opposed the “select militia” as the Government brief supports. Some of the Framers’ statements include:

I enclose you a list of the killed, wounded, and captives of the enemy from the commencement of hostilities at Lexington in April, 1775, until November, 1777, since which there has been no event of any consequence... I think that upon the whole it has been about one half the number lost by them, in some instances more, but in others less. This difference is ascribed to our superiority in taking aim when we fire; every soldier in our army having been intimate with his gun from his infancy. [emphasis added]

Thomas Jefferson letter to Giovanni Fabbroni, June 8, 1778.

A militia, when properly formed, are in fact the people themselves … the constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always by kept well organized, armed, and disciplined, and include, according to the past and general usuage of the states, all men capable of bearing arms…

Richard Henry Lee writing in Letters from the Federal Farmer to the Republic, Letter XVIII, May, 1788. [Page 25]

I ask, Who are the militia? They consist now of the whole people, except a few public officers.

George Mason, 3 Elliot, Debates at 425-426, June 16, 1788[38]

...their governor, constitutionally, the commander of the militia of the State, that is to say, of every man in it able to bear arms...

Thomas Jefferson, letter to Destutt de Tracy, January 26, 1811.

The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution…Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped;…

Alexander Hamilton, The Federalist Papers # 29.

A militia law, requiring all men, or with very few exceptions besides cases of conscience, to be provided with arms and ammunition... is always a wise institution, and, in the present circumstances of our country, indispensable.

John Adams, Thoughts on Government, 1776.

I object to the power of Congress over the militia and to keep a standing army ... The last resource of a free people is taken away; for Congress are to have the command of the Militia ... Congress may give us a select militia which will, in fact, be a standing army--or Congress, afraid of a general militia, may say there shall [Page 26] be no militia at all. When a select militia is formed; the people in general may be disarmed.

John Smilie in the Pennsylvania convention. The Documentary History of the Ratification of the Constitution, Vol. 2, Pages 508-509 (December 6, 1787).

The Militia is composed of free Citizens. There is therefore no Danger of their making use of their Power to the destruction of their own Rights, or suffering others to invade them.

Samuel Adams. III S. Adams Writings 251 (1906).

The Framers’ intent was to have an armed populace capable of defending themselves from all forms of tyranny. Their words still ring true in both the current Militia law and the Miller decision. Additional history of Congress’s Militia Acts is detailed in Perpich v. Dept. of Defense,[39] which holds that the militia under the 1903 Dick Act is:

… divided the class of able-bodied male citizens between 18 and 45 years of age into an “organized militia” to be known as the National Guard of the several States, and the remainder of which was then described as the “reserve militia,” and which later statutes have termed the “unorganized militia.”[40] [Page 27]

Congress, Miller, the Framers and Perpich all hold that the militia is more than the State or National guard. This court should follow this long-standing interpretation.

F. Consumer Product Safety Improvement Act of 1976 (CPSIA)

When Congress authorized broad, sweeping powers to the Consumer Product Safety Commission, there was a concern that over-regulation would impact the individual gun ownership. An exemption from the law was created for the manufacture and sale of firearms or firearms ammunition. Pub. L. 94-284, Sec. 3(e), May 11, 1976, 90 Stat. 504, provided that:

The Consumer Product Safety Commission shall make no ruling or order that restricts the manufacture or sale of firearms, firearms ammunition, or components of firearms ammunition, including black powder or gunpowder for firearms.

It is clear that this amendment was adopted specifically to protect individual gun owners from intrusive and overbearing government bureaucracy and the restrictions that could occur. Although the Consumer Product Safety Act does not specifically invoke the Second Amendment, the CPSIA does reflect Congress’s [Page 28] strong desire to protect individual gun ownership. This Court should read 922(g)(8) in a manner that would uphold this Congressional desire.

G. Subcommittee on the Constitution, 1982

Congress clarified the meaning of the Second Amendment in the February 1982 Report of the Subcommittee on the Constitution of the Committee on the Judiciary in the 97th Congress, The Right to Keep and Bear Arms. This is a good summary of the meaning of the Second Amendment. (Though many additional individual rights scholarly materials were recovered since the report was issued.) It was a unanimous, bipartisan and strongly-worded Report supporting the individual right to keep and bear arms.

In his opening remarks, Senator Orrin Hatch wrote:

What the Subcommittee on the Constitution uncovered was clear--and long-lost--proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.[41] [Page 29]

Sen. Dennis Deconcini echoed respect for the Second Amendment, quoting Thomas Jefferson and Samuel Adams and noted:

The right to bear arms is a tradition with deep roots in American society… I have personally been disappointed that so important an issue should have generally been so thinly researched and so minimally debated both in Congress and the courts.[42]

The report then quoted Framers of our Constitution, Legal Commentators of the time, and various court cases. The concluding paragraphs destroy the notion that the "militia" is the National Guard of today and reaffirm the Second Amendment as an individual right:

That the National Guard is not the “Militia” referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to “raise and support armies” and not its power to “Provide for organizing, arming and disciplining the Militia”[43] This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only “to execute the laws of the Union, suppress insurrections and repel invasions.” The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec 311(a).

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the [Page 30] Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.[44]

Congress again supported the individual right to keep and bear arms in passing the FOPA, by finding that:

(1) the rights of citizens—

(A) to keep and bear arms under the second amendment to the United States Constitution;

(B) to security against illegal and unreasonable searches and seizures under the fourth amendment;

(C) Against uncompensated taking of property, double jeopardy, and assurance of due process of law under the Fifth Amendment; and

(D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies; and

(2) additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act of 1968, that “it is not the purpose of this [Page 31] title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trap shooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.”[45]

The FOPA enforces the Second Amendment protection through prevention of registration of most firearms by providing:

…No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.[46]

The FOPA continued the no-registration policy of the PRA. This protection even carried over to appropriation budgets of the Bureau of Alcohol, Tobacco and Firearms (BATF). Congress has included the following provision in every BATF appropriation act since 1978:

Provided, That no funds appropriated herein shall be available for administrative expenses in connection with consolidating or centralizing within the Department of [Page 32] the Treasury the records of receipts and disposition of firearms maintained by Federal firearms licensees or for issuing or carrying out any provisions of the proposed rules of the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, on Firearms Regulations, as published in the Federal Register, volume 43, number 55, of March 21, 1978....[47]

I. The Brady Handgun Control Law

The Congressional prohibition on firearm/firearm-owner registration is reaffirmed again in the Brady Law. Section 103 dealing with the National Instant Criminal Background check system reads in part:

(i) Prohibition Relating To Establishment of Registration Systems With Respect to Firearms. - No department, agency, officer, or employee of the United States may --

(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or

(2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code, or State law, from receiving a firearm.[48] [Page 33]

This portion of Brady continues the policy from the PRA and FOPA, both of which specifically protected the individual right to keep and bear arms under the Second Amendment.

J. Congressional History as a Whole

The continuous effort of Congress to avoid infringing on the individual right to keep and bear arms goes virtually unnoticed in lower court cases presuming that the Second Amendment is simply a “collective” right. It is time for the Judicial Branch to consider the long-standing opinion of the Legislative Branch in ruling on the intent behind the Second Amendment. It was first drafted, debated and ratified by Congress and has been defended rigorously as an individual right throughout our nation’s history.

Particularly with an ambiguous statute like 922(g)(8), courts must consider the interpretation preferred by Congress as the crafters of the legislation. Because Congress has repeatedly acted to protect individual firearms ownership in general, and the Second Amendment in particular, the statutory interpretation that best effectuates these often-expressed preferences should be upheld. [Page 34]

This court should interpret the statute at bar to require a finding of dangerous not only because such a reading is consistent with the Second Amendment, but because it matches the expressions of Congressional intent regarding the Second Amendment and individual gun ownership. If such a reading is not possible, then the statute must be struck-down as an unconstitutional Second Amendment violation.

V. CONCLUSION

Section 922(g)(8), if not given a saving construction by this Court, is--like 922(g)(9)--a clear violation of both the Fifth and Second Amendments. The Judgment of the District Court should be affirmed.

Dated: __________________

[20] Norman Chachkin, History of Constitutional Litigation for Human Rights Issues--Especially Race Issues 5-7 (Practicing Law Institute, 1994).

[26] NFA: Hearings on H.R. 9066, House Ways and Means Committee, 73d Cong., 2d Sess. 19 (1934)

[33] See, e.g., Marvin W. Schlegel, Virginia on Guard: Civilian Defense and the State Militia in the Second World War at 129 (1949).

[36] Contrast Government’s Miller reading with the individual right’s interpretation supported by Justice Hugo Black, The Bill of Rights, N.Y. University Law Review, 35 at 873 (1960) and recognized and feared in Cases v. U.S., 131 F.2d 916 at 922-923 (1st Cir. 1942).

[38] Reprinted in Jonathan Elliot, ed, Vol. 3, The Debates in the Several State Conventions, at 425-426 (1941)