No. 99-10331
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,Plaintiff - Appellant,
v.
TIMOTHY JOE EMERSON,
Defendant - Appellee.
AMENDED BRIEF OF SECOND AMENDMENT FOUNDATION
AS AMICUS CURIAE IN SUPPORT OF DEFENDANT - APPELLEE
AND FOR AFFIRMANCEAARON R. CLEMENTS
Tex. SBN 00795861
HURLEY, SOWDER & REYES
1703 Ave. K
Lubbock, TX. 79401ATTORNEYS FOR AMICUS CURIAE
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................i
TABLE OF AUTHORITIES ...........................................iii
IDENTITY AND STATEMENT OF
INTEREST OF AMICUS CURIAE AND CONSENT ......1I. FACTS OF THE CASE ...............................................2
II. MADISON'S "NATURAL"
"PRIVATE RIGHTS" AMENDMENT ............................3A. Placement and selection of private rights .....................3
B. Commentary from the period supports private rights ....7
C. The Pennsylvania Minority ........................................12
D. Samuel Adam's proposal at the
Massachusetts Convention ............................................15III. THE TEXT OF THE SECOND AMENDMENT .....16
IV. SUPREME COURT INTERPRETATIONS ...........20
A. Dred Scott ...............................................................21
B. Cruikshank .............................................................22
C. Presser ...................................................................24
V. CONCLUSION ......................................................27
Certificate of Service ...................................................28
Certificate of Compliance ............................................29
TABLE OF AUTHORITIES
Cases:
Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820) ..............................9
Presser v. Illinois, 116 U.S. 252 (1886) .....................................24-6
Scott v. Sandford, 60 U.S. 393 (1857) .....................................21-22
State v. Newsom, 27 N.C. (5 Ired.) 203 (1844) .............................22
United States v. Cruikshank, 92 U.S. 542 (1875) ....................22-24
United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999) ....3
United States v. Miller, 307 U.S. 174 (1939) ................................21
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) .............7
Constitutions and Statutes:
U.S. Const. amend. II ...............................................................passim
U.S. Const. art. I, Sec. 8 ....................................................................6
U.S. Const. art. I, Sec. 9 ....................................................................6
U.S. Const. art. III, Sec. 2 ..................................................................5
Penn. Const. (1776) reprinted in The Federal and State
Constitutions, Colonial Charters, and Other Organic Laws of the
States, Territories, and Colonies, Now or Heretofore Forming the
United States of America 3082-3091 (Francis N. Thorpe, ed. 1909) ....14Tex. Const. Art. I, § 23 .....................................................................20
Wis. Const. Art. I, Sec. 25 ................................................................21
18 U.S.C. § 922(g)(8) ......................................................................2-3
A Bill for Preservation of Deer (Va., 1785) reprinted in 2 The
Papers of Thomas Jefferson 443 (J. Boyd ed. 1950-1982) ..................18Enforcement Act of 1870, 16 Stat. 141 (1870) ....................................23
7 The Statutes at Large, Being a Collection of all the
Laws of Virginia, from the First Session of the Legislature, in the
Year 1619 at 95 (W.W. Henning ed. 1823) .........................................22Law Reviews and Journals:
Don Kates, Handgun Prohibition and the Original
Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983) ......19David B. Kopel, Clayton E. Cramer, and Scott G. Hattrup,
A Tale of Three Cities: The Right to Bear Arms in State
Supreme Courts, 68 Temple L. Rev. 1177(1995) ................................20David B. Kopel, The Second Amendment in the Nineteenth
Century, 1998 BYU L. Rev. 1359, 1436-1441 (1998) ..................passimJ. Neil Schulman, The Text of the Second Amendment,
4 J. Firearms & Pub. Pol. 159 (1992) ................................................17Scott Bursor, Note, Toward a Functional Framework for
Interpreting the Second Amendment, 74 Tex. L. Rev. 1125 (1996) ....20Stefan B. Tahmassebi, Gun Control and Racism,
Geo. Mason U. Civ. Rts. L. J. 61 (1991) ...........................................22Stephen Halbrook, What the Framers Intended:
A Linguistic Analysis of the Right to "Bear Arms",
49 Law & Contemp. Probs. 151 (1986) ............................................18
Historical Documents: Debates, Letters, Resolutions and Newspaper Articles:The Address and Reasons of Dissent of the Minority of the
Convention of the State of Pennsylvania to their Constituents,
Pennsylvania Packet (Philadelphia), December 18, 1787
reprinted in 2 The Documentary History of the Ratification of the
Constitution 618-639 (Merrill Jensen, John P. Kaminski, and
Gaspare J. Saldino et al., eds. 1976) .............................................13-15House of Representatives, Debates, June 8, 1789, reprinted in
2 The Bill of Rights: A Documentary History 1016-1042
(Bernard Schwartz, ed. 1971) .....................................................passimHouse of Representatives, Proceedings on Amendments
(July 28, 1789) reprinted in Freeman's Journal (Philadelphia),
August 5, 1789, at 1 ..............................................................4-5, 12-13House of Representatives, Proceedings August 24, 1789
reprinted in 2 The Bill of Rights: A Documentary History 1138
(Bernard Schwartz, Ed. 1971) ...........................................................13James Madison, Notes for Speech In Congress
Supporting Amendments (June 8, 1789), in 12 The Papers of
James Madison 193-195 (Robert A. Rutland and
Charles F. Hobson, eds. 1979) .......................................................3, 5Letter from Frederick A. Muhlenberg (New York) to
Benjamine Rush dated August 18, 1789 in Creating the
Bill of Rights: The Documentary Record for the First
Federal Congress 280-281 (Helen E. Veit, Kenneth R. Bowling,
Charlene Bangs Bickford, eds.1991) ................................................12Letter from James Madison to Tench Coxe, June 24, 1789 in
12 The Papers of James Madison 258-259 (Robert A. Rutland and
Charles F. Hobson, eds. 1979) ........................................................10Letter from Joseph Jones (Richmond) to James Madison,
June 24, 1789 in 12 The Papers of James Madison 258-259
(Robert A. Rutland and Charles F. Hobson, eds. 1979) ....................11Letter from Thomas Jefferson to Justice William Johnson,
June 12, 1823 in The Complete Jefferson 322 (Saul Padover, ed.) .....19Letter from William Grayson to Patrick Henry, June 12, 1789 in
William Wirt Henry, 3 Patrick Henry: Life, Correspondence and
Speeches, 391-392 (1891) .................................................................8Letter from William L. Smith (New York) to Edward Rutledge,
August 9, 1789 in Creating the Bill of Rights: The Documentary
Record for the First Federal Congress 272-273 (Helen E. Veit,
Kenneth R. Bowling, Charlene Bangs Bickford, eds.1991) ................11Letter to the Editors, Philadelphia Independent Gazetteer,
August 20, 1789 reprinted in David E. Young, The Origin of the
Second Amendment 701-702 (1995) ................................................15Proposed Declaration of Rights and other Amendments,
Virginia Convention June 27, 1788 reprinted in 3 The Debates
in the Several State Conventions, on the Adoption of the
Federal Constitution, as recommended by the General Convention
at Philadelphia in 1787 657-661 (Jonathan Elliot, ed. 1941) ...............8-9Resolutions of New Hampshire, June 21, 1788 reprinted in The
Debates on the Constitution: Part 2 552 (1993) .................................20Tench Coxe, A Pennsylvanian, Federal Gazette (Philadelphia),
reprinted in David E. Young, The Origin of the
Second Amendment: A Documentary History of the
Bill of Rights 1787-1792 at 670-673 (1995) ......................................102 The Bill of Rights: A Documentary History 681
(Bernard Schwartz, ed. 1971) .........................................................16Other Sources:
David E. Young, The Origin of the Second Amendment:
A Documentary History of the Bill of Rights 1787-1792 (1995) ..10, 15Stephen Halbrook, That Every Man Be Armed:
The Evolution of a Constitutional Right (1984) ......................7, 17, 23Webster, An American Dictionary of the
English Language (1828) ................................................................17
IDENTITY AND STATEMENT OF INTEREST
OF AMICUS CURIAE AND CONSENTThe Second Amendment Foundation, hereinafter SAF, is a non-profit educational foundation dedicated to promoting a better understanding about our Constitutional heritage to privately own and possess firearms. SAF was incorporated in August 1974 under the laws of the State of Washington. It is a tax-exempt organization under §501 (c) (3) of the Internal Revenue Code. The Foundation's purpose is to preserve the effectiveness of the Second Amendment to the United States Constitution and provide aid and information to people throughout the United States. To that end, SAF carries on many nationally recognized educational and legal action programs designed to better inform the public about the gun control debate. SAF has a broad base of support with 600,000 members and supporters residing in every state of the union. In addition to numerous books, articles, and national seminars, SAF publishes the Journal of Firearms and Public Policy. A more detailed description of the SAF's work is found at its website (http://www.saf.org).
This case raises the threshold question of whether an individual has a constitutional right to keep and bear arms. SAF believes it can significantly contribute to the court's understanding by examining the historical development of the Second Amendment. Both parties, through counsel, have consented to amicus submission of this brief.
ARGUMENT AND AUTHORITIES
I. FACTS OF THE CASE
Dr. Timothy Joe Emerson is a 42-year-old Texas physician who operated a clinic in a poor area of San Angelo, Texas. His 29-year-old wife, Sasha, worked there as a nurse. In 1997, Dr. Emerson bought a Beretta pistol for self-defense after a drug addict threatened to kill everyone at the clinic.
Approximately one year later, Sasha filed for divorce and made a routine ex parte request for a temporary restraining order. The order, approved without a hearing, maintains the status quo by protecting the financial, property and parental rights of both parties. At a subsequent hearing, Dr. Emerson, representing himself, was called to testify by Mrs. Emerson's attorney regarding financial matters in order to determine temporary child support. The hearing included a brief colloquy between the judge and Mrs. Emerson. She noted that Dr. Emerson had never threatened her, though she said he had threatened her boyfriend. The judge found no evidence of any acts or threats of violence by Dr. Emerson against any member of his family.
When the temporary injunction was entered, Dr. Emerson was not informed that he could be subject to federal prosecution for possessing firearms while subject to this order. He was subsequently indicted for possession of a firearm, in violation of 18 U.S.C. § 922(g)(8). The federal District Court ruled that 18 U.S.C. § 922(g)(8) violated the Second and Fifth Amendments to the United States Constitution.(1)
II. MADISON'S "NATURAL" "PRIVATE RIGHTS" AMENDMENT: From Introduction to Passage by the House of Representatives
Close examination of the development of the Second Amendment, from the day that Madison proposed it, through its passage by the U.S. House of Representatives, shows that the Amendment was universally considered to guarantee a private, personal right to possess firearms.(2)
A. Placement and selection of private rights
When James Madison introduced the right to keep and bear arms amendment, along with other proposed amendments, in Congress, he explained that these amendments protected what he described as "natural rights."(3) Because natural rights, by definition, are inherent human rights, natural rights cannot belong to governments (which do not exist in a state of nature), or to collective organizations (such as militias) which are part of organized society. Rights, such as Madison's Second Amendment right, which are "natural" must necessarily belong only to individuals.
Since Madison grouped his amendment proposals to be inserted within the Constitution next to related material, we can determine whether Madison understood his original draft of the Second Amendment as an "individual right" by examining where he placed it in relation to his other proposed individual rights protections, such as those found in the First, Third, Fourth, Fifth, Sixth, and Eighth Amendments.(4) Madison's Second Amendment related provision was positioned among his other "natural" or "private rights" proposals between the right to petition and that protecting against quartering of soldiers.
This placement of the people's right to keep and bear arms immediately after the people's right of petition and directly before protection against quartering soldiers remained the same in every Congressional listing of proposed amendments to the Constitution, including the Select Committee of Eleven proposals, the Committee of the Whole House proposals, the proposals of the House of Representatives, those of the Senate, those of the Conference Committee, and thus is in that same position today as part of the U.S. Bill of Rights.(5)
This consistent placement of "the right of the people to keep and bear arms" among other fundamental private rights belonging to "the people" is clear proof that Madison considered his proposal guaranteeing the right of the people to keep and bear arms and affirming the importance of the well regulated militia as protecting an individual right - like the right of individuals to speak, write, publish their sentiments, or petition government.
Madison distinguished "natural rights - retained" from "positive rights resulting - as trial by jury."(6) The distinction shows how selective Madison was regarding rights which we understand today as individual civil rights, but which Madison did not include in his collection of "private rights" because they also related to the judicial structure of the government. For example, Madison proposed to insert his amendment relating to the Seventh Amendment, jury trials in civil cases, in Article 3, Section 2, rather than include it in his private rights list. He did the same for the provisions for grand jury indictment and juries of the vicinage, which ultimately ended up as part of the Fifth and Sixth Amendments, respectively.(7) The proposed placement indicates that Madison considered the jury amendments as relating as more to the judicial system than to individual rights; that is why Madison proposed to insert the jury amendments in Constitutional Articles dealing with the judicial branch of government, rather than where his list of natural or private rights would be inserted (in Article I, section 9). In Madison's view, the jury amendments did not relate solely to individual, natural or private rights the way all the other rights included in the "private rights" list did.
Madison did not propose any amendments to reduce the powers given to the Federal Government in Article 1, Section 8 of the Constitution. Section 8 grants Congress power to "provide for organizing, arming, and disciplining, the Militia..."(8). If Madison believed the right to keep and bear arms amendment was principally about restricting federal militia powers, then Madison would have proposed inserting appropriate language in Article 1, Section 8. However, he did not make such a proposal.
By placing the right to arms amendment in Section 9, which already contained private rights, such as habeas corpus, Madison showed that the Second Amendment was primarily about "private rights." The language of the Second Amendment, as adopted, is consistent with Madison's "private rights" understanding. As Stephen Halbrook points out:
If the framers had meant only to guarantee the right of states to have militias and of their organized militiamen to keep and bear arms, they would surely have worded the Second Amendment differently. Language such as "the right of the select militia to keep and bear arms" would have sufficed. It is unlikely that the framers would have intended to commit blatantly the fallacy of equivocation by shifting the meaning of "the people" from amendment to amendment, or that they would have risked the fallacy of ambiguity by defining the phrase "the people" in the Second Amendment in such an unusual manner, that is, as "those people in a select state militia." Such a bizarre interpretation would also commit the fallacies of division and of composition in reverse by holding that the right exists in the whole but not in its parts or that it fails to exist in the parts but does exist in the whole.(9)
The Supreme Court has recognized the obvious import of the consistent use of language by Madison and the other framers. As the Court has pointed out, the phrase "the people," wherever it appears in the Constitution, has the same meaning, whether it be in the Second Amendment or in the Preamble to the Constitution or in the First, Fourth, Fifth, and Ninth Amendments.(10)
B. Commentary from the period supports private rights.
Not only did Madison himself view his Second Amendment proposal as relating only to private rights, but every comment from the period on Madison's proposals indicates that all the persons making the comments understood Madison's Second Amendment proposition the same way that Madison himself did - as involving only natural, personal, private, individual rights.
For example, on June 12, 1789, U.S. Senator William Grayson of Virginia wrote to Patrick Henry (who had introduced Virginia's proposed Bill of Rights and twenty other structural amendments to the Constitution into that state's Ratifying Convention) stating:
Some gentlemen here from motives of policy have it in contemplation to effect amendments which shall effect personal liberty alone and further ..... Last Monday a string of amendments were presented to the lower House; these altogether respected personal liberty. (11)
Senator Grayson referred to James Madison and to Madison's proposed amendments, and he clearly understood Madison's Bill of Rights proposals as relating to individual rights only The reason for the emphasis on personal liberty alone in Grayson's letter is that the Virginia Anti-federalists, besides wanting guarantees of private rights (such as the right to keep and bear arms), also wanted a large number of other amendments to reduce the powers which the main body of the constitution had granted to the federal government (such as federal militia powers). But these hoped-for other amendments were not among the complete set of amendments offered by Federalist Madison.(12)
Madison acceded to the Virginia Ratifying Convention's demand for protection of the right of the people to keep and bear arms, and he also offered language recognizing the importance of a well regulated militia. But what Madison clearly chose not to do was include the proposition protecting state power to provide for organizing, arming, and disciplining the militia, or any other change in the powers previously belonging only to the states and now given to the new Federal Government, among any of his amendment propositions. The state authority to provide for organizing, arming, and disciplining the militia provision would have been directly contrary to every action the Federalists had taken to create the Constitution, which contained a list of powers for the new Federal Government all of which were taken from, and were stated to be paramount to the powers of, the state governments. Consequently, Article I, section 8, of the Constitution grants to Congress, rather than to the states, the power to "provide for organizing, arming, and disciplining, the Militia.(13)
On June 18, 1789, an article by the widely-read Federalist writer Tench Coxe appeared in a Philadelphia newspaper and was soon reprinted elsewhere, including New York. Coxe's two-part article described and explained each of Madison's proposed amendments to the Constitution. Coxe's description of the Second Amendment proposition was:
As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.(14)
Coxe sent a copy of the newspaper containing this article to James Madison and indicated that he was the author. Madison replied to Coxe indicating that Madison's amendments project "is therefore already indebted to the co-operation of your pen."(15)
Presumably, Madison would have corrected Coxe if Coxe had completely misinterpreted the Second Amendment, which would certainly have been the case if the exclusively collective right interpretation had any validity. However, Madison did not.
Likewise, On June 24, 1789, Joseph Jones, a member of the Virginia Council of State, wrote a letter to James Madison in which he stated:
I thank you for a copy of the amendments proposed to the constitution which you lately inclosed to me - they are calculated to secure the personal rights of the people so far as declarations on paper can effect the purpose.(16)
Jones was clearly of the impression that Madison's list of "private rights" proposals related to "personal" or individual rights.
As the amendments worked their way through the House of Representatives, comments regarding them appeared in letters of members of Congress and in some newspaper articles. All of these, without exception, indicate that the Second Amendment and related amendments were universally understood to relate to private rights and personal liberty. For example, on August 9, 1789, U.S. Representative William L. Smith (South Carolina) wrote to Edward Rutledge:
The Committee on amendmts. have reported some, which are thought inoffensive to the federalists . . . There appears to be a disposition in our house to agree to some, which will more effectually secure private rights, without affecting the structure of Govt.(17)
The Federalists, the creators of the Constitution, were in control of Congress, and were not going to surrender any of the politically hard-won expansions of the federal government's powers, which had been achieved by the ratification of the Constitution. The Bill of Rights contained assurances about matters that the Federalists thought were beyond federal power even under the new Constitution; the Bill of Rights did not retract any of the federal powers which the Federalists had won just a few months before.
C. The Pennsylvania Minority
Speaker of the House, Frederick Augustus Muhlenberg, a leading Federalist from Pennsylvania, wrote on August 18th to Benjamin Rush in Philadelphia:
But this Day has at length terminated the Subject of Amendments in the Committee of the whole House, & tomorrow we shall take up the Report & probably agree to the Amendments proposed, & which are nearly the same as the special Committee of eleven had reported them . . . I hope it will be satisfactory to our State, and as it takes in the principle Amendments which our Minority had so much at Heart.(18)
Three major points regarding the Speaker of the House's comments above are worthy of note:First, the final amendments were considered to be practically the same as the Committee of Eleven's proposals.(19)
Second, the Minority referred to by Speaker Muhlenberg was the Minority of the Pennsylvania Ratifying Convention. The Pennsylvania Minority had proposed amendments to the Constitution for protection of individual rights found today in the First, Second, Fourth, Fifth, Sixth, Seventh, and Eighth Amendments to the U.S. Constitution.(20) Pennsylvania's was the first state ratifying convention to meet after writing of the Constitution. The Pennsylvania Minority's arms rights provision was thus a provision which Speaker Muhlenberg understood as relating to the U.S. House of Representatives proposed amendments. The Pennsylvania Minority had demanded a federal constitutional guarantee:
7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.(21)
This is an obvious early predecessor of the Second Amendment. The Pennsylvania Minority was doubtless inspired partly by the 1776 Pennsylvania State Declaration of Rights, which declared "That the people have a right to bear arms for the defence of themselves and the state."(22)
The third item worthy of note is what is entirely missing from the U.S. House of Representatives' amendments: a response to the Pennsylvania Minority's separate proposal for an amendment "that the power of organizing, arming, and disciplining the militia . . . remain with the individual states."(23)
Like the majority at the Virginia Ratifying Convention, the Minority at the Pennsylvania Ratifying Convention had put the hoped-for protection of state militia powers in a separate proposal from the hoped-for protection of the people's right to keep and bear arms. The Pennsylvanians and Virginians who advocated for constitutional amendments knew how to say in plain English that state governments should have more power over the militia. In all thirteen states, the people were not so incompetent at the English language that the phrase "the right of the people to keep and bear arms" would be used when what was actually meant was "the power of state governments to organize, arm, and discipline the militia."
D. Samuel Adams' Proposal at the Massachusetts Convention
On August 20, 1789 the Philadelphia Independent Gazetteer published an article relating to the amendments in Congress which included the statement:
every one of the intended alterations, but one, have been already reported by the committee of the House of Representatives in Congress(24)
The "intended alterations" referred to were the failed proposal for a short bill of rights by Samuel Adams in the Massachusetts Ratifying Convention. Here is what Samuel Adams had proposed on February 6, 1788:And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.(25)
All of Adams' "intended alterations, but one" had been passed by the U.S. House of Representatives. The "but one" is obviously Adams' call for limits on Congressional power to raise standing armies-since the U.S. House never passed such a proposed alteration. Therefore, because all "but one" of Adams' proposals had been adopted by the U.S. House, the U.S. House must have adopted Adams proposal that Congressional powers never be construed "to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."James Madison proposed that the U.S. House of Representatives adopt an amendment to protect the "private rights" of the people to keep and bear arms, and the House did so. The newspaper record and records of the Founders' correspondence show that the American people understood the Second Amendment to protect a personal right to arms-and not a restriction on federal militia powers.
III. THE TEXT OF THE SECOND AMENDMENT
Part II of this brief showed that the Second Amendment was intended and understood to guarantee a "private right." Part III of this brief shows how the Amendment's text carries out that intent.
The Second Amendment states that:
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.
The words "A well-regulated militia, being necessary to the security of a free state" constitutes a present participle. "Being necessary to the security of a free State" is an adjectival phrase, modifying "militia," which is followed by the main clause of the sentence (subject "right," verb "shall").Grammatically speaking, "being necessary to the security of a free state", does not restrict the right to keep and bear arms, nor is the language "the right of the people to keep and bear arms" conditioned by a "well-regulated militia."(26) The main (independent) clause of the Second Amendment makes a positive statement with respect an unconditional, inherent individual right.(27)
According to Webster's, to "bear" "arms" simply means "carrying" or "wearing" weapons on the person or inside one's clothing.(28) Webster's definition of "arms," does not imply an exclusively military usage: "Weapons of offense, or armor for defense and protection of the body." (29)
Furthermore,
That to "bear" arms means simply to carry them was clear in a game bill drafted by Thomas Jefferson and proposed by James Madison, draftsman of the second amendment, in the Virginia legislature. The bill would have fined those who hunted deer out of season, and if within a year "[the hunter] shall bear a gun out of his inclosed ground, unless whilst performing military duty," he shall be in violation of his recognizance. The game violator would have to go back to court for "every such bearing of a gun" to be again bound to his good behavior. Thus, in the minds of Thomas Jefferson and James Madison, to "bear" a gun meant to carry it about in one's hands or on one's person, as for instance a deer hunter would do. "Bearing arms" is not associated with militia duty only, for the language above addresses the "bearing of a gun" by any person when not "performing military duty."(30)
The claim that the term "the people" in the Second Amendment refers only to state governments rather than individuals is inconsistent with other provisions of the Bill of Rights and its history as discussed above. As constitutional scholar Don Kates points out:The second amendment's literal language creates another, even more embarrassing problem for the exclusively state's right interpretation. To accept such an interpretation requires the anomalous assumption that the Framers ill-advisedly used the phrase "right of the people" to describe what was being guaranteed when what they actually meant was "right of the states." In turn, that assumption leads to a host of further anomalies. The phrase "the people" appears in four other provisions of the Bill of Rights, always denoting rights pertaining to individuals. Thus, to justify an exclusively state's right view, the following set of propositions must be accepted: (1) when the first Congress drafted the Bill of Rights it used "right of the people" in the first amendment to denote a right of individuals (assembly); (2) then, some sixteen words later, it used the same phrase in the second amendment to denote a right belonging exclusively to the states; (3) but then, forty-six words later, the fourth amendment's "right of the people" had reverted to its normal individual right meaning; (4) "right of the people" was again used in the natural sense in the ninth amendment; and (5) finally, in the tenth amendment the first Congress specifically distinguished "the states" from "the people," although it had failed to do so in the second amendment. Any one of these textual incongruities demanded by an exclusively state's right position dooms it. Cumulatively they present a truly grotesque reading of the Bill of Rights.(31)
This textual analysis is supported by the ratifications and resolutions of the seven state conventions held in 1788.(32) This is especially relevant here because:Madison drafted the Bill of Rights with the aid of innumerable suggestions from his countrymen, most commonly in the form of the state bills of rights and the hundreds of amendments suggested by the state conventions that ratified the Constitution. Indeed, Madison began his work by purchasing a pamphlet that listed over two hundred demands of the state conventions, eliminating some, and rewording and consolidating as many as possible to develop the Bill of Rights. Drafted with an eye toward earning the approval of the statehouses, the Bill of Rights was thus infused from the bottom up with the dominant ideology of the day.(33)
The common theme running through these state conventions which took place in the spring and summer of 1788 was the clear and unequivocal understanding that the right to keep and bear arms belonged to "the people" independent of "the state". For example, in the New Hampshire convention held on June 21, 1788, the delegates adopted the following language:Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.(34)
These provisions recollect the spirit at the time when the Constitution was adopted which was the simple recognition that "the people" have liberty to keep and bear arms to fulfill various individual needs, including self-defense.(35)IV. SUPREME COURT INTERPRETATIONS FROM THE 19th CENTURY SHOW THAT THE COURT UNDERSTOOD THE SECOND AMENDMENT TO BE A PRIVATE RIGHT
The Supreme Court has rarely directly-addressed the Second Amendment. The last occasion was over fifty years ago in 1939(36) While the Miller case has already been addressed by the parties and other amicus curiae, SAF will examine some of the Supreme Court's earlier rulings to show that the Court has understood and specifically recognized the Second Amendment as a private, individual right belonging to all citizens of the United States.
A. Dred Scott
While the holding in Dred Scott, that free blacks were not citizens and had no standing to sue in federal court, has been invalidated by ratification of the Fourteenth Amendment in 1868, the case still sheds light on what the Second Amendment meant to the Supreme Court. The Court's majority opinion warned that if blacks were recognized as "citizens" they would have the Constitutional right to freely travel, speak freely, hold public meetings, "and to keep and carry arms wherever they went."(37)
Recognizing that many Southern states did not consider even free blacks to be citizens of the states themselves, Justice Taney's conclusion that they were not citizens of the United States as a nation was not surprising in antebellum America. For example, one of the earliest laws in Virginia simply stated: "all such free Mulattoes, Negroes and Indians ... shall appear without arms".(38) Similarly, the North Carolina Supreme Court upheld a state law requiring a license for free blacks to keep or carry arms finding that, although this individual right extended to all citizens, free blacks were not citizens.(39)
As a consequence of the Dred Scott decision, antislavery activists argued that the institution of slavery, which prevented a certain class of people from bearing arms, was repugnant to the Second Amendment, which guaranteed the right to bear arms to all persons.(40)
B. Cruikshank
Mr. Cruikshank and others were tried for lynching two blacks. A sixteen count indictment was handed down against over one hundred individuals under section 6 of the Enforcement Act of 1870.(41) The indictment alleged that the defendants conspired to "hinder and prevent" two black citizens from exercising certain "rights and privileges."(42) Among them were the "lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceable and lawful purpose" and the right of "bearing arms for a lawful purpose."(43)
The Court held that the guarantees in the Bill of Rights operate to restrain governments, and not on individuals. Since there was no "state action" involved in the case,
The federal courts ... could not offer relief against defendants accused of conspiracy to deprive complainants of their freedom of action and their firearms, for these violations were common-law crimes actionable only at the local level.(44)
Neither the First Amendment nor the Second Amendment were among the "privileges and immunities" of United States citizenship, the court explained, because neither right was created by virtue of United States citizenship. In contrast to rights (such as the right to interstate travel) which were created by the Constitution, the right to assembly and the right to arms were inherent individual rights that predated the Constitution:
The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It "derives its source," to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, "from those laws whose authority is acknowledged by civilized man throughout the world." It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection.(45)
The Court then explained that the Second Amendment was, in this regard, the same as the First:The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.(46)
Consequently, like the people's right of assembly, the right to keep and bear arms is not dependent on the Constitution because it preexisted the Constitution as one of the universal attributes of civilized society.(47)
C. Presser
Presser was the Supreme Court's first case involving a direct challenge to a statute alleged to violate the Second Amendment.(48) Presser was charged with violating an Illinois statute that made it a crime for "any body of men" other than "the regular organized volunteer militia of [Illinois], and the troops of the United States, to associate themselves together as a military company, or organization, or to drill or parade with arms" in the cities or towns of Illinois without a license of the Governor, who had unlimited authority to revoke that license.(49) In September of 1879, Presser and 400 fellow members of a labor society calling itself Lehr und Wehr Verein, marched without gubernatorial license in the streets of Chicago.(50) Presser was convicted and fined ten dollars.(51) Presser complained that this law of Illinois had the effect of depriving him of his Second Amendment right to keep and bear arms.(52)
The Supreme Court answered that the right to gather as a military group and hold armed parades was not included in the individual right to keep and bear arms.(53) The Court further expounded that "the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States."(54)
Thus, Presser recognized the Second Amendment as a limitation on the power of the Federal Government. According to the court, Presser had two problems: he was raising a claim against a government (the State of Illinois) which was not bound by the Second Amendment; and the law in question (a restriction on mass armed parades) did not infringe upon the Second Amendment.(55) However, the Court never suggested that Mr. Presser himself had no personal Second Amendment rights. The point of the Presser case is that the Second Amendment right is a private right that belongs to the individual, although all rights are not unlimited.
IV. CONCLUSION
In arguing for his private Bill of Rights, Madison said:
If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally let to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.(56)
The history of Madison's "private rights" amendment, the text of the Second Amendment and the few direct Supreme Court pronouncements(57) clearly support the District Court's conclusion that the right to keep and bear arms is an individual right. The decision of the District Court should be AFFIRMED.
Respectfully submitted,
SECOND AMENDMENT FOUNDATION,
AMICUS CURIAEAARON R. CLEMENTS
Tex. SBN 00795861
Hurley, Sowder & Reyes
1703 Avenue K
Lubbock, Texas 79401
CERTIFICATE OF SERVICE
I hereby certify that, in accordance with FRAP 25(a), on this the 30th day of December, 1999, I mailed to the clerk by Express Mail the original and six (6) copies and 1 electronic copy on diskette of the foregoing amicus brief to the United States Court of Appeals for the Fifth Circuit, 600 Camp Street, New Orleans, LA 70130, and that two (2) copies and one diskette were mailed by regular mail to Mr. Timothy Crooks, 600 Texas Street, Suite 100, Ft. Worth, Texas 76102 and that two (2) copies and one diskette were hand-delivered to William B. Mateja, Assistant U.S. Attorney, 1205 Texas Ave., Seventh Floor, Lubbock, TX 79401.
AARON R. CLEMENTSCERTIFICATE OF COMPLIANCE
Pursuant to Fifth Cir. R. 32.2 and 32.3, the undersigned certifies this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).
1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN Fifth Cir. R. 32.2, THE BRIEF CONTAINS 6,964 words
2. THE BRIEF HAS BEEN PREPARED in proportionally spaced typeface using Word 97 / Word 2000 in Times New Roman 14 pt. Footnotes are in Times New Roman 12 pt.
3. THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN Fed. R. App. P. 32 (a)(7), MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.
AARON R. CLEMENTS
FOOTNOTES1. United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999).
2. While the amicus brief of Academics for the Second Amendment provides an excellent description of the Second Amendment's ratification, the Second Amendment Foundation brief looks more closely at a particular period in the ratification process.
3. Madison's notes for his speech read, in part: "natural rights, retained - as Speech". James Madison, Notes for Speech In Congress Supporting Amendments (June 8, 1789), in 12 The Papers of James Madison 193-195 (Robert A. Rutland and Charles F. Hobson, eds. 1979) (hereinafter Rutland).
4. House of Representatives, Debates (June 8, 1789) reprinted in 2 The Bill of Rights: A Documentary History 1016-1042 (Bernard Schwartz, ed. 1971) (source hereinafter Schwartz).
5. House of Representatives, Proceedings on Amendments (July 28, 1789) reprinted in Freeman's Journal (Philadelphia), August 5, 1789, at 1.
6. Rutland, supra note 3.
7. Schwartz, supra note 4.
8. U.S. Const. art. 1, Sec. 8.
9. Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 85 (1984).
10. United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
11. Letter from William Grayson to Patrick Henry, June 12, 1789 in William Wirt Henry, 3 Patrick Henry: Life, Correspondence and Speeches, 391-392 (1891).
12. Proposed Declaration of Rights and other Amendments, Virginia Convention June 27, 1788 reprinted in 3 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as recommended by the General Convention at Philadelphia in 1787 657-661 (Jonathan Elliot, ed. 1941).
13. Years later, during Madison's Presidency, the Supreme Court heard a case involving the boundaries between federal militia powers, and the states' authority over the militia. If the Second Amendment were in accord with the meaning given it by the Yassky brief, the Center to Prevent Handgun Violence, and the other gun prohibition amici, then the Second Amendment would have been the center of the Court's decision and of the parties' arguments. But in fact, neither party even mentioned the Second Amendment in argument, and the Court's decision was based on completely different grounds. Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820). For more detail on the Houston case, see David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1381-87 (1998). Authors of nineteenth century constitutional treatises (such as Justice Story, William Rawle, and many others) who analyzed the boundaries of federal/state militia powers never suggested that the Second Amendment was even relevant to the issue. Id.
14. Tench Coxe, A Pennsylvanian, Federal Gazette (Philadelphia), reprinted in David E. Young, The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787-1792 at 670-673 (1995) (hereinafter Origin of the Second Amendment). Because Madison originally proposed more amendments than were eventually ratified, today's "Second Amendment" was not the second item on Madison's list. For convenience and consistency, this brief always uses "Second Amendment"-even though the Amendment was not second at all times.
15. Letter from James Madison to Tench Coxe, June 24, 1789, Rutland at 258-259.
16. Letter from Joseph Jones (Richmond) to James Madison (June 24, 1789), Rutland Vol. XII at 258-259.
17. Letter from William L. Smith (New York) to Edward Rutledge, August 9, 1789 in Creating the Bill of Rights: The Documentary Record for the First Federal Congress 272-273 (Helen E. Veit, Kenneth R. Bowling, Charlene Bangs Bickford, eds.1991) (hereinafter Veit).
18. Letter from Frederick A. Muhlenberg (New York) to Benjamine Rush dated August 18, 1789, Veit at 280-281.
19. An examination of the proposals from the Committee of Eleven (the Congressional committee that drafted the Bill of Rights) confirms that the Pennsylvania Speaker was plainly correct. House of Representatives, Proceedings on Amendments (July 28, 1789) reprinted in Freeman's Journal (Philadelphia), August 5, 1789, at 1 (hereinafter House Proceedings).
Furthermore, the proposals of the House were practically the same as Madison's original propositions. House of Representatives, Debates (June 8, 1789), Schwartz at 1016-42.
Here are the House proposals relating to the Second Amendment in chronological order:
June 8, 1789. Madison's proposal:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
Id.
July 28, 1789. Committee of Eleven's proposal:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.
House Proceedings, supra.
August 24, 1789. House of Representatives' proposal:
Art. 5. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
House of Representatives Proceedings August 24, 1789, Schwartz at 1138.
20. The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents, Pennsylvania Packet (Philadelphia), December 18, 1787 reprinted in 2 The Documentary History of the Ratification of the Constitution 618-639 (Merrill Jensen, John P. Kaminski, and Gaspare J. Saldino et al., eds. 1976) (hereinafter Pennsylvania Minority)
21. Id.
22. Penn. Const. (1776) reprinted in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies, Now or Heretofore Forming the United States of America 3082-3091 (Francis N. Thorpe, ed. 1909)
23. Pennsylvania Minority, supra note 21.
24. Letter to the Editors, Philadelphia Independent Gazetteer, August 20, 1789 reprinted in The Origin of the Second Amendment at 701-702. For the convenience of the Court and the parties, the Second Amendment Foundation has donated a copy of The Origin of the Second Amendment to each party, several copies to the Fifth Circuit Library as well as a relevant letter from David Young. The Origin is the only comprehensive collection of original documents regarding the Second Amendment from 1787 to 1792. See http://www.saf.org/Young.html
25. 2 The Bill of Rights: A Documentary History 681 (Bernard Schwartz, ed. 1971).
26. See J. Neil Schulman, The Text of the Second Amendment, 4 J. Firearms & Pub. Pol. 159 (1992) http://www.saf.org/journal/4_Schulman.html
27. See, Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 84 (1984).
28. Webster, An American Dictionary of the English Language (1828).
29. For a word-by-word analysis of Webster's Dictionary applied to the Second Amendment, see David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1404-09 (1998).
30. Stephen Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms", 49 Law & Contemp. Probs. 151 at 153-156 (1986), citing A Bill for Preservation of Deer (Virginia, 1785) reprinted in 2 The Papers of Thomas Jefferson 443 (J. Boyd ed. 1950-1982).
31. Don Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 219 (1983).
32. As Thomas Jefferson advised:
On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.
Letter from Thomas Jefferson to Justice William Johnson, June 12, 1823 in The Complete Jefferson 322 (Saul Padover, ed.).
33. Scott Bursor, Note, Toward a Functional Framework for Interpreting the Second Amendment, 74 Tex. L. Rev. 1125, 1130 (1996).
34. Resolutions of New Hampshire, June 21, 1788, reprinted in The Debates on the Constitution: Part 2 552 (1993)
35. The inherent right to keep and bear arms for various individual needs is now recognized in one form or another by the constitutions of 44 states. See, David B. Kopel, Clayton E. Cramer, and Scott G. Hattrup, A Tale of Three Cities: The Right to Bear Arms in State Supreme Courts, 68 Temple L. Rev. 1177, 1180 (1995) (n.13).
For example, Tex. Const. Art. I, § 23 states:
Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.
The Wisconsin provision, added by the voters in 1998, states:
The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.
Wis. Const. Art. I, § 25.
36. United States v. Miller, 307 U.S. 174 (1939).
37. Dred Scott v. Sandford, 60 U.S. 393, 417 (1857). A more detailed discussion of Dred Scott may be found at David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1433-1435 (1998).
38. See, Stefan B. Tahmassebi, Gun Control and Racism, Geo. Mason U. Civ. Rts. L.J. 61 (1991), citing 7 The Statutes at Large, Being a Collection of all the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 at 95 (W.W. Henning ed. 1823).
39. State v. Newsom, 27 N.C. (5 Ired.) 203 (1844).
40. David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1436-1441 (1998).
41. Enforcement Act of 1870, 16 Stat. 141 (1870)
42. United States v. Cruikshank, 92 U.S. 542, 548 (1875).
43. Id., at 551-553.
44. Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 159 (1984).
45. Cruikshank at 551.
46. Id. at 591-592.
47. As discussed in Part II A., supra, Madison himself went further, and said that both rights exist in a state of nature.
48. Presser v. Illinois, 116 U.S. 252 (1886).
49. Id. at 253
50. Id. at 254-55.
51. Id. at 254.
52. Id. at 264.
53. Id. at 264.
54. Id. at 265.
55. Id. at 264-265.
56. House of Representatives Debates, June 8, 1789, Schwartz at 1016-1042.
57. There is also a great deal of dicta supporting an individual right to keep and bear arms. SAF posted 49 Supreme Court cases on our website involving the Second Amendment/Right to Keep and Bear Arms at http://www.saf.org/2ndAmendSupremeCourtTable.html as part of our legal issues website featuring numerous court cases, law review articles, and important quotes at http://www.saf.org/legal-issues.html