United States v. Emerson

any purported governmen- deciding, pensation” in the role of usurp appropriate, they may that have programs taking property tal what social to be substan- “has not been understood the enforcement of the experienced from government’s limit on the tive or absolute deprivation of program. Texas IOLTA No as a operates act. The Clause power to just compensation possibility means no limitation, permitting gov- conditional in I would all constitutional violation. As long what it wants so ernment to do judgment the dis- respects affirm charge.”40 pays court, respectfully trict I dissent.43 that we to remember important It pro- about due

cannot substitute concerns legitimacy pur- addressing the cess— its operation of Texas’s IOLTA

pose plain- I

program, perceive which in case—for con- complaint

tiffs’ real taking, which turns on

cern about a just compensation.41 America, Our availability of STATES of UNITED strictly ensuring role is limited Plaintiff-Appellant, pro- the Texas IOLTA initiatives such as v. providing a mechanism for gram provide Timothy EMERSON, Joe “just proper- taken compensation” Defendant-Appellee. just program Texas has ty.42 The IOLTA mechanism, for refund- provision such a No. 99-10331. have been interest that could ing any Appeals, Court of United States wrong- by a whose funds are earned client Fifth Circuit. And, the accounts. ly placed in IOLTA for such routinely grants requests state Oct. 2001. refunds. have had their this case plaintiffs court, proved

day in and have themselves “just com- not been denied have understood, provided only limited govern- protection was for the originally divided were category unfairness was of decisions in which affecting property into two mental actions likely.”). most government physically groups. When the Any compensation. property, it owed took Enters., 524 U.S. at Eastern See action, governmental matter how no other J., (Kennedy, concurring S.Ct. 2131 property, did severely it affected the value of dissenting part). judgment requirement. compensation give rise to a not takings requirement applied physical This id. 41. See majoritari- believed that because framers give decisionmaking processes would not an County, 473 U.S. at 42. See Williamson interest to the individual’s fair consideration Fifth (explaining that 105 S.Ct. 3108 property physically having seized her government "pro- requires government.” by the obtaining adequate process for an vide[ ] remedy sought failures in "The clause compensation”). underlying political process. But idea majoritarian majority decisions should not address that all did was not 43. Because violation, process plaintiff's whether the claimed First Amendment be reviewed to determine not, merely passing note any particular was fair or I do either. I decision behind weight. Rather, argument its own will fall of heightened constitutional unfair. Bryan Mateja (argued),

William Lub- bock, TX, John F. DePue (argued), U.S. Justice, Dept, Appellate Criminal Div. Section, DC, Washington, for Plaintiff-Ap- pellant. Fleury,

Peter Michael Asst. Federal Defender, Guinn, Jr., Public David Michael Waller, Wedlock, Jr., Federal Eldon D. Timothy (argued), Crooks Weber Lei- William Office, Worth, TX, Wexler, White, Defender’s Fort Public la Sadat Welsh S. Steve Defendant-Appellee. for Zucherman, Winter and Michael Amici Cu- riae, pro se. Brock, Lubbock, TX, Ami- Ralph H. Curiae, pro cus se. OH, Brudzynski, Dayton, Richard Wilmer, Mogilnicki, Eric Cutler & Jon Institute, Potomac Amicus Curiae. DC, Ann

Pickering, Washington, Laura Dulles, Online, Inc., Hurt, Heymann, Laguarda, America Fernando R. E. Valerie VA, Mintz, Handgun Levin, Cohn, Ferris, for Center to Prevent Vio- Glovsky & Po- lence, Federal Law Enforcement Officers DC, peo, Washington, for National Net- Ass’n, of Po- International Ass’n of Chiefs Fund, work to End Domestic Violence lice, International Brotherhood of Police Violence, Texas Council on Family Arizona Organizations, Legal Community Against Violence, Against Coalition Domestic Colo- Violence, Chiefs, Major Gun Cities Nation- Violence, Against rado Coalition Domestic Organizations, al Ass’n of Police National USA, Place, YMCA of the NY Sister’s Ass’n, Black Police National Ass’n of Black Against National Coalition Domestic Vio- Executives, Law Enforcement Ex- Police lence, One American Coalition Voice/The Forum, ecutive Police Founda- Research Awareness, for Abuse Florida Coalition Hispanic tion and American Police Com- Violence, Against Domestic Hawaii State Ass’n, mand Officers Amici Curiae. Violence, Against Coalition Domestic Land, Porter, Jay Arnold & Stuart Against Indiana Coalition Domestic Vio- DC, Silverman, Marc Washington, Andrew lence, Iowa Against Coalition Domestic Vi- Porter, City, Arnold & York for Edu- New olence, Ass’n, Kentucky Domestic Violence Violence, Handgun cational Fund to End Violence, Maine Coalition to End Domestic Amicus Curiae. Michigan Against Coalition Domestic & Violence, Sexual Missouri Coalition School, Yassky,

David Brooklyn Law Violence, York, Ackerman, Against Hamp- Domestic New Brooklyn, New for Bruce Balkin, Against Joyce Appleby, Jack M. Michael shire Coalition Domestic & Sexual Bellesiles, Bernhard, Bloch, Violence, Adele Ruth New State York Coalition Bowman, Bogus, T. Frank Violence, Carl John Against Domestic Oklahoma Co- Brooke, Brown, Darryl Chandos Michael Against alition Domestic Violence Sex- Brown, Burrows, Cay- Edwin G. Andrew Assault, ual North Carolina Coalition ton, Cornell, Chermerinsky, Edwin Saul Violence, Against Domestic Rhode Island Countryman, Dipippa, Edward John Mi- Violence, Against Coalition Domestic Dorf, Dorsen, Dow, chael Norman. David Against South Carolina Coalition Domestic Estrich, Feldman, Li Susan R. Heidi Hen- Assault, Violence Sexual South Dakota Hartog, Hay, drik G. Bruce Don Against Coalition Domestic Violence and Hoffer, Higginbotham, Peter Charles Nan- Assault, Against Sexual Vermont Network Johnson, cy Isenberg, Stanley L. N. Sheri Domestic Violence and Sexual Assault and Katz, Lafrance, Lewis, Arthur Jan Le- Jill Wyoming Against Coalition Domestic Vio- Little, Matsuda, pore, Rory K. Mari J. Assault, lence and Amici Curiae. Sexual Michelman, McClurg, Andrew J. Frank Denning, Brannon P. Illinois Nunziato, Perlin, Southern Dawn Michael Carl Law, Carbondale, IL, Prince, University, School of Rosenberg, Norman L. Malinda L. Shane, Smith, for Ethan Allen Institute and Heartland Seymore, Billy Peter Pe- G. Strauss, Uviller, Institute, ter Amici Spencer J. Richard Curiae. Halbrook, Fairfax, VA, P. for lice Benevolent Ass’n and

Stephen Jews for the Foundation, Amicus Ownership, Texas Justice Curiae. Preservation of Firearm Amici Curiae. Benjamn Kopel, Independence David In-

stitute, Golden, CO, Independence for In- Goldberger, Peter Law of Peter Office stitute, Amicus Curiae. Admore, PA, Goldberger, for National Lawyers, Ass’n of Criminal Defense Ami- Cooper (argued), Cooper, Charles Justin cus Curiae. Rosenthal, DC, Washington, Carwin & for Alabama, State of Amicus Curiae. Gardiner, Fairfax, VA,

Richard E. America,

Law Enforcement Alliance of Inc., Amicus Curiae. GARWOOD, Before DeMOSS and PARKER, Judges. Circuit Jeffries, III, Greensboro, NC,

James H. Foundation,

for Gun Owners Amicus Curi- GARWOOD, Judge: Circuit ae. appeals United States the district Schenck, Mow, David John Robert H. court’s dismissal of the indictment of De- Jr., Luce, Hughes Anthony & Robert fendant-Appellee Dr. Timothy Joe Emer- Montserrat, Dallas, TX, for Texas State (Emerson) son for violating 18 U.S.C. Ass’n, Rifle Amicus Curiae. § 922(g)(8)(C)(ii). The district court held Clements, Ray Hurley, Reyes Aaron & 922(g)(8)(C)(ii) that section was unconstitu- Guinn, Lubbock, TX, for Second Amend- tional on its face under the Second Amend- Foundation, ment Amicus Curiae. ment applied and as to Emerson under the Teufel, III, Hugo Yager Matthew Bis- Due Process Clause of the Fifth Amend- can, Evans, Denver, CO, Hall & Anita ment. We reverse and remand. Blair, Welty Blair, Katherine & Arlington,

VA, Independent Women’s Forum and Proceedings Facts and Below Responsible Doctors for Gun Ownership, 28, 1998, August Emerson, On Sacha Amicus Curiae. wife, Emerson’s petition filed a for divorce Dowlut, Robert J. National Rifle Ass’n in the 119th District Court of Tom Green America, Fairfax, VA, for National Rifle County, petition Texas. The request- also America, Ass’n of Amicus Curiae. ed, alia, inter temporary injunction en- joining Emerson engaging from Bijan Tahmassebi,

Stefan National Rifle twenty-nine enumerated Septem- acts. On America, Fairfax, VA, Ass’n of for Con- 4, 1998, ber Judge Sutton tempo- held a gress Inc., Equality, of Racial Amicus Cu- rary orders evidentiary hearing. Sacha riae. Emerson represented was counsel Striekler, George Jr., Orleans, M. New appeared while Emerson pro se. There is LA, for Academics of the Second Amend- (fi- no evidence that Emerson was unable ment, Amicus Curiae. otherwise) nancially or to retain counsel Newman, Timothy WA, Shawn Olympia, hearing for the or that repre- he desired for Citizen Committee for Right sentation counsel on that occasion. He Arms, Keep and Bear Amicus Curiae. ready announced beginning Strodtman, Thomas D. Bamberger September hearing. & Almost all of Sacha Feibleman, IN, Indianapolis, for Women testimony Emerson’s direct concerned fi- Control, Against matters, Gun Southern States Po- nancial but the following relevant 14, 1998, on exchange place September took direct examination On Judge Sutton attorney: a temporary her issued order that included a Injunction” “Temporary which stated that Q today asking You are here the Court enjoined Emerson “is engaging from” temporary regarding orders any twenty-two acts, enumerated includ- yourself your daughter; is that ing the following: correct? “2. Threatening Petitioner in person,

A Yes. by telephone, or in writing to take un- Q restraining You have asked in these lawful action against any person.” orders regarding Mr. Emerson you that he not communicate with “4. Intentionally, knowingly, or reck- obscene, vulgar, profane, an indecent lessly causing bodily injury to Petitioner manner, in a coarse or offensive or to a child of party.” either manner? Threatening “5. Petitioner or a child of A Yes. party either bodily inju- imminent Q previous He today ry.” has threatened you; to kill is that correct? provides order that it “shall continue

A He hasn’t threatened to kill me. signing force until the final de- He’s threatened to kill a friend cree of divorce or until further order of mine. 14, September this court.” The 1998 order Q Okay. And he has threatened —he any express did not include finding that phone you

has made some calls posed Emerson a future danger Sacha about that? daughter or to his Logan.2 There is noth- ing to indicate that sought Emerson ever A Yes.1 to modify challenge any the provi- opportunity Emerson declined an to cross- September sions of the 1998 order. examine presented Sacha and no evidence tending any quoted 8,1998, to refute of her above grand jury On December testimony explain Texas, his conduct in that Ange- the Northern District of San respect. division, In testimony his he stated in lo returned a five-count indict- connection, another among things, against other ment government Emerson. The that he suffering “anxiety” from and moved 2 through to dismiss counts “mentally good was not in a state of mind.” which motion the district court subse- opinion mitting. August 1. The district court’s observes that 1998 order stated "[djuring [September hearing, that, 1998] examining petition, after the court alleged Mrs. Emerson that her husband [Respondent "finds that ... unless ... is im- telephone threatened over to kill the man mediately restrained from the commission of having with whom Mrs. Emerson had been an prohibited, [Respondent the acts hereinafter Emerson, adulterous affair.’’ United v. States will commit such acts before notice of the (N.D.Tex.1999). F.Supp.2d hearing temporary injunction can be hearing August served had.” This 28, 1998, August day peti- 2. On Sacha’s alleged 1998 order is not the order filed, Judge tion was had Sutton issued an ex- indictment, any and in event it is not within parte temporary restraining prohibiting order 922(g)(8)(A) requires § the terms of which engaging Emerson from of the 29 acts that the order have been "issued after a hear- petition pending enumerated in Sacha's ing person of which such received actual no- hearing request temporary on Sacha's for a person oppor- at which such had an injunction. These acts included all those tice/and tunity participate.” quoted September in the text above which the 14, enjoined 1998 order Emerson from com- quently granted.3 Count re- Emerson defends the district court’s dis- issue, and the count here at maining count missal on grounds urges those and also Emerson on November alleged that any that dismissal was in proper event 1998, unlawfully possessed “in and affect- under the Commerce Clause on statu- firearm, ing interstate commerce” a a Be- tory grounds. subject pistol, retta while to the above order, September mentioned Discussion § 922(g)(8). ap-

violation of 18 It U.S.C. § I. 922(g)(8) Construction 18 U.S.C. pears purchased that Emerson had 10, 1997, pistol Angelo, October San § provides U.S.C. relevant Texas, from a licensed firearms dealer. part: pistol Emerson does not claim that the had “(g) It any per- shall be unlawful for previously traveled in interstate or son— foreign disputed commerce. It is not September 1998 order was effect (8) 16,1998. through subject least November who is a court order that— pretrial Emerson moved to dismiss the (A)

indictment, asserting section was issued after a hearing of him, 922(g)(8), facially applied and as which person such received actual no- violates the Second Amendment tice, and the person and which such had an Due Process Clause of the Fifth Amend- opportunity to participate; ment. He also moved to dismiss on the (B) person restrains such from ha- 922(g)(8) basis that section was an improp- rassing, stalking, threatening or an inti- er exertion of federal under the partner mate person of such or child of that, case, Commerce Clause and such intimate partner person, or or en- unconstitutionally the law usurps powers gaging in other conduct that place reserved to the states the Tenth an partner intimate in reasonable fear of An evidentiary Amendment. hearing was bodily child; injury partner to the or held on Emerson’s motion to dismiss. granted district court Emerson’s (C)(i) finding includes a per- such Subsequently, motions to dismiss. the dis- represents son a credible threat trict court issued an amended memoran- physical safety partner of such intimate dum opinion reported at F.Supp.2d child; or (N.D.Tex.1999). The district court held (ii) by explicitly its terms prohibits that dismissal of the indictment prop- use, use, attempted or threatened er on or Fifth Second Amendment physical use of against force such inti- grounds, rejected but Emerson’s Tenth partner mate or child that would reason- argu- Amendment and Commerce Clause ably expected bodily injury; cause ments. The government appealed. Emerson filed a notice of cross-appeal, which was

dismissed government ship transport this Court. The in interstate or challenges commerce, the district court’s foreign dismissal on or possess in or af- Second Fifth grounds. commerce, fecting any firearm or am- apparently The motion was made granted because of govern- the district court problems with a February witness. On ment’s motion.

213 munition; or to receive firearm or remains after an examination of the stat ammunition which shipped text, has been or ute’s legislative its history and the transported foreign interstate policies advances, lenity the rule of re commerce.” quires this uncertainty be resolved in favor of Emerson. United States v. Pres argues Emerson section tenbach, (5th 780, Cir.2000). 230 F.3d n. 23 922(g)(8)(C)(ii) should be construed to re quire particular predicate court Turning first to Emerson’s sec order explicit finding include an that the statutory ond argument, there is nothing person enjoined posed a credible threat of in the text of the support statute to it. spouse violence to his or child. Emerson Moreover, contrary it is to uniform con argues further that the statute must also struction of section 922(g) and its prede require predicate be read to order cessors under which the courts have con supported by be sufficient evidence before strued this and other similar subsections of entering the court it to sustain such a See, section 922. e.g., Lewis v. United finding, so that the court in the criminal States, 55, 445 915, U.S. 100 S.Ct. prosecution must examine the record (1980); L.Ed.2d 198 United States v. the proceeding the court entering before Chambers, (5th 228, 922 F.2d 232-40 Cir. predicate order acquit and must 1991). Just as Lewis observed that “noth defendant in the criminal case if the evi ing statutory [in the suggests any text] dence before the entering predi court restriction on the scope of the term ‘con cate order was not to sustain sufficient victed,’” 918, id. so also nothing is, course, such a finding. It duty our section 922(g)(8) suggests that validity construe a statute so to avoid any as seri of the particular predicate may court order questions. However, ous constitutional inquired be into the section 922(g)(8) the statute must be susceptible to that Moreover, criminal prosecution. this is construction, our i.e. construction must be long consistent with the standing federal fairly possible; duty to avoid constitu rule that injunction violation of an that is questions tional is not a license to rewrite subsequently may, at invalidated least so States, the statute. v. Jones United long as it cannot be characterized as hav 227, 1215, 1222, U.S. 119 S.Ct. 143 L.Ed.2d ing only a transparent or pre frivolous (1999); Feltner v. Columbia Pictures tense to validity, punished as criminal Television, Inc., 340, 523 U.S. 118 S.Ct. contempt. 239-40; See Na Chambers 1279, 1283, (1998); 140 L.Ed.2d 438 Unit tional Maritime v. ‘N’ Aquaslide Union Albertini, ed States v. 472 U.S. (5th Corp., Dive 737 F.2d 1399-1400 (1985). S.Ct. 86 L.Ed.2d 536 Cir.1984).4 “If statutory language unambiguous, clearly the absence of ‘a expressed legis reject We likewise argument lative contrary, intent to the that language that section 922(g)(8) requires that must ordinarily regarded predicate as conclu express judicial order contain an ” States, sive.’ Russello v. finding United 464 U.S. poses that the defendant a credible 296, 299, (1983) 104 S.Ct. 78 L.Ed.2d 17 physical threat to safety spouse of his Turkette, (quoting United v. States 452 or child. If requirements 2524, 2527, (B) U.S. 922(g)(8)(A) fulfilled, S.Ct. 69 L.Ed.2d then (1981)). addition, In if uncertainty 922(g)’s its terms section firearms disabili- presently portions 4. The Sep- having transparent relevant acterized or friv- 14, 1998, pretense tember here validity. order cannot be char- olous (C)(i) merely “restraining” stalking if clause or clause or harass- ty attaches either (C)(ii) judi- an Although express ment. It is true that both sections em- applies. dangerousness pursu- threats, finding cial of future proscribe brace orders that but way 922(g)(8)(C)(i) ant is one to section degree congruence is insufficient to disability can 922(g)(8)’s firearms section plain meaning overcome the of the text. attach, al- 922(g)(8) to construe section as agree Nor do we that the absence of a judicial ways requiring express finding an judicial requirement express finding of an the word “and” for substitute 922(g)(8)(A) nullity. renders section appears word “or” that at the end of argues Emerson also that the word “re- If 922(g)(8)(C)(i). Congress intended to strain”, 922(g)(8)(B), necessarily as used require express judicial finding, an requires express judicial finding an arranged the elements would have as poses the defendant a credible threat of 922(g)(8)(A)-(D)and used the word “and” spouse argu- violence to his child. join than “or” them. rather simply ment is temporary both and lack Notwithstanding the of textual am- injunctions permanent traditionally re- biguity, Emerson maintains that we should quire, addition to notice hearing, express judicial imply finding either judicial some express finding supporting requirement 922(g)(8) into section or at may the court’s order. gen- While this recognize express judi- least the lack of an true, erally invariably it is not the case finding cial an affirmative defense to injunctions must contain such findings that, 922(g)(8). argues section He without and, importantly, more argument made requirement express judicial of an does not Congress overcome the fact that (C)(ii) finding, 922(g)(8)(B) sections specifically required hearing notice and 922(g)(8)(A) are redundant while section is all 922(g)(8) section affirmatively cases but nullity. rendered a While there is some and specifically required express an find- overlap 922(g)(8)(B) between section (C)(i). ing only in governed by cases clause (C)(ii), has independent each still some crux of the matter is that we cannot scope statutory scheme. Section (C)(ii) imply in express finding clause an 922(g)(8)(B) broadly refers to orders that requirement that is not in it stated while harassing, stalking restrain or threatening. being affirmatively specifically stated It quite possible is that an order could (C)(i). in clause surmount the 922(g)(8)(B) section hurdle Relying legislative history on the of sec- yet only fulfill one of the section 922(g)(8), tion Emerson and amicus the 922(g)(8)(C) Congress criteria. obviously State Alabama contend that all three felt that if the order “restrains” ha- (one House, versions of the bill from the rassing, stalking, threatening, or otherwise Senate) two from the that went causing injury, fear of express judicial an Conference required Committee an ex- finding of a credible threat of violence was press judicial (C)(i). finding. They necessary. contend that 922(g)(8)(B) Section However, purpose if real of section “by 922(g)(8)(C)(ii) the order its explic- terms use, itly prohibits” “loophole” to close a attempted 922(g)(8) section use or physical force, prevented threatened that would have apply- use no such it from ing if express finding necessary. express judicial finding Section was not Thus, itself, 922(g)(8)(C)(ii). instead, Congress affirma- order but for exam- tively ple, drew a distinction in an accompanying between orders memorandum. “explicitly prohibiting” actual, attempt- find argument ultimately We neither per- ed or threatened physical attack Contrary and those suasive. to the assertions of Alabama, Emerson and the State one of had called to its or their attention the the Senate versions of the bill that went to supposed “loophole” in the statutory the Conference Committee did authorize a put scheme forth by now Emerson. firearms disability any express ju- without Because the construction urged by Em- finding. dicial This version from resulted erson is fairly possible, we must de- S.1607, amendment 1179 to submitted cline his invitation to rewrite section Senator Biden Senator Wellstone Likewise, 922(g)(8). because section November 1993. Amendment 1179 922(g)(8) not ambiguous, is the rule of provided, in part: relevant lenity provides no basis for relief. “(8)(A) has been convicted in court any of an offense that— n II. Due Process Clause of the Fifth (i) use, use, involves the attempted or

threatened use of physical against force person a spouse, who is a spouse, former The district court prosecution held that child, partner, domestic or former child for violating section 922(g)(8) would de- person; prive Emerson of his Fifth Amendment (ii) nature, by its involves a substantial 1) right to Due Process because: Dr. Em- risk that physical against force a person erson did not possession know that of a spouse, who is a spouse, former domes- firearm being subject while Septem- partner, child, tic or former child of the 2) crime; ber 1998 order was a section person may used in the course of 922(g)(8) is an “obscure criminal provision” offense; committing the that would be difficult for Emerson to (B) required, is pursuant to an order 3) discover; there is nothing inherently by any issued court in a involving case firearm; 4) evil possessing about person (A), described in subparagraph Emerson had no suspect reason to that any refrain from contact with or to being subject September 14, 1998 maintain a minimum distance from that order would criminalize otherwise lawful person, abuse, or to refrain from harass- Emerson, behavior. United States v. 46 ment, or stalking person.” of that F.Supp.2d 611-13. district court S15638-03, 139 Cong. upon Rec. relied Lambert California, *S15650. v. This 240, 243, language was U.S. sent S.Ct. 2 L.Ed.2d Conference Com 24, 1993, (1957), mittee on in which clearly Supreme November Court struck contemplates a disability firearms down a Angeles Los law requiring without resident either felons,to a conviction or express judicial register an city. with the The Su- finding of dangerousness. 1) future preme Court observed that: the defen- Cong. S17095-03, Rec. *S17174.5 Emer dant had prosecuted been for passive ac- 2) son’s contention 922(g)(8)(C)(ii)’spres tivity; the defendant was unaware of ence in the 3) statute cannot explained by register; the need to circumstances that anything sent to the Conference prompted inquiry Commit have an into the tee Similarly, is unfounded. there noth necessity registration lacking; were ing legislative history an suggesting average community member of the Congress, of its or would punished committees not consider the conduct members, addressed, ever or blameworthy. considered Id. proposed The reference spouse, in this spouse, partner, amendment's former domestic subparagraph (B) child, person to "a language subpara- described in or former child” (A)” subparagraph plainly (A). graph is to the is a "who outset, quire knowledge gun posses- “[t]he

At the we note that that machine sweep of the Lambert case limit has been unlawful, only knowledge sion was but by subsequent Supreme decisions ed weapon possessed gun. was machine Court, general rule that lest swallow (under Bryan, Staples 118 S.Ct. at 1946 the law is no excuse.” United ignorance of not, however, necessary prove “[i]t was Giles, (5th v. States 640 F.2d posses- that the defendant knew that his Cir.1981). 924(a)(2) § provides 18 U.S.C. unlawful”). Here, sion was there is no mens rea for conviction question that Emerson was aware that on required that the (“Who 922(g) knowledge is under section 16, 1998, actively possessed November he knowingly (g) ... ever violates subsection a firearm of the kind covered the stat- ”). ... “Knowingly” ... of section —in subject 14, ute September while some contrast to least uses of “wilful misapprehended 1998 order or that he ly”' require that the not defendant —does actual contents of that order.6 unlawful, actions are know that his but engaging he know he is Moreover, Emerson out and filled legislature activity proscribed. that the has when, signed BATF Form 4473 on October States, 184, Bryan v. United 524 U.S. 10, 1997, purchased he the Beretta semi 1939, 1945-47, 141 5.Ct. L.Ed.2d 197 pistol automatic referred to in Count (1998). Bryan Staples v. explained that This afforded notice to Emerson that so States, United 511 U.S. 114 S.Ct. long as he was under a court order such as (1994), exemplifies 128 L.Ed.2d 14, 1998, September federal law Staples, In Supreme distinction. prohibited possession his continued of that Court held conviction for unlawful Giles, possession Lam- gun weapon.7 of a machine did not In distinguished re- we reflects, 6. So as record far this case does 7. The front of the form contains a section 8 present (re- a separate situation where the defendant's questions which of 11 consists possession merely "i") firearm is incident spectively through labeled “a” each of (and/or simply passive pending is initiation adjoining which has an blank box in which of) completion good a faith effort to rid purchaser “yes” must fill in the answer or himself, Question as soon as after issuance of the dis "8j” “no.” asks: qualifying reasonably practica court order as "j. you subject Are to a court order re- circumstances, ble under the of the continued straining you harassing, stalking, from or possession previously possessed of a firearm. threatening partner an intimate or child of possession Whether such is outside the in (See partner? important such Notice 4 and scope 922(g)(8), § tended or whether such 4.)” Definition circumstances constitute a defense akin to Emerson, correctly, filled in the answer "no” like, necessity, justification that of or the or questions through to each of 8b 8k. constitutionally whether some such result is form, just Just below section 8 of the (under required Eighth the Second or Fifth or form, signed above where Emerson is a Amendments, otherwise), or is thus not now certificate, capi- five line all in bold faced and See, generally, e.g., before us. United States v. letters, tal which includes the statement: "I Newcomb, (6th 6 F.3d 1133-38 Cir. person ‘yes’ understand that a who answers 1993) others). (preventing harm to United Cf. questions through 8b 8k Gomez, is (9th States v. 81 F.3d 850-54 prohibited purchasing possessing from 1996) (self-defense); Cir. United States v. Pan ter, firearm.” (5th 688 F.2d 269-72 Cir. (same). "important Notice 4 and Definition 4” We also charged observe that the question 8j purchaser to which possession refers the is days here was more than 60 after September set out on the back of the as 1998 order. There is form follows: no § “4. may assertion that Emerson did Under 18 U.S.C. not know of the firearms order day by persons when it was entered or not be sold to within or received sub- (A) two ject thereafter. to a court order that: was issued (as others), noting bert on this basis well as Amendment Due Process rights on that course, situation, “Giles’ is far different basis. Lambert,

from that of Ms. for he was directly confronted with written accurate III. Commerce Clause proscribed by notice of the conduct rejected district court Emer 922(h)(1) § statute [then ] when he filled that, son’s contention in enacting section out signed Form 4473 part 922(g)(8), Congress exceeded its un Giles, purchase.” each firearm 640 F.2d der the Commerce Clause. As the district Finally, at 628. agree we with the district noted, court that, this Court has held be court ownership that firearms is not inher- cause 922(g)(8) only section criminalizes ently suspect evil or and that a cer- thus the possession of firearms or ammunition tain rea required. Staples, mens “in or affecting recep commerce” and the However, Bryan S.Ct. at 1799-1801. tion of firearms that “shipped have been Staples make clear that necessary transported or foreign in interstate com mens rea in require this context does not merce”, Congress did not exceed its Arti knowledge of merely the law but I, cle powers 8 Section it. enacting legally rejects relevant facts. appli- Giles Pierson, 501, United v. 139 F.3d where, States 503 here, cation Lambert at least as (5th Cir.), denied, 896, cert. 525 there U.S. provided by notice Form 220, (1998). reasons, S.Ct. For 142 L.Ed.2d 181 4473. these we Ac hold that court, cordingly, case does not merit the district Emerson’s relief under as bound Lambert, are, precedent that the district as court erred we did not err granted when it Emerson’s denying motion to dis- Emerson’s motion to dismiss the miss the violating indictment as his Fifth indictment on Commerce grounds.8 Clause hearing person after which the re- foreign as in interstate or commerce at some opportunity 10, 1997, ceived actual notice and had an prior purchase time his October (B) to participate; person restrains such government of it in The Texas. so likewise harassing, stalking threatening or from an party alleged, assumed. Neither record partner reflect, intimate or child of intimate such does not and the district court made partner person, or or engaging to, in other finding no as when such travel in inter- place part- conduct an intimate foreign state or commerce occurred. bodily injury ner reasonable fear of to the below, Emerson not did contend and does child; (C)(i) partner or includes find- pistol appeal, not contend on that the had ing person represents that such a credible foreign not traveled interstate or com physical safety threat of such inti- merce the 1994 enactment of the cur after child, (ii) partner mate or its terms § 922(g)(8). rent We also note version use, use, explicitly prohibits attempted purchase pistol Emerson’s physical against threatened use of force apparently federally from a licensed fire partner such intimate or child that would dealer, although any possible arms relevance reasonably expected bodily inju- to cause congressional of that to the issue of Com ry-” merce Clause has not been raised (8) paragraph 922(g) § We note also party either See here below. United States 1994, September law in became P.L. 103- (5th Lopez, 2 v. F.3d 1348 & n. 9 110401(c), Sec. Stat. 2014- 1993), Cir. affirmed, 514 U.S. 115 S.Ct 2015, 2151, approximately prior years three (1995). L.Ed.2d Emerson's acquisition to Emerson's of the firearm in challenge presented Commerce Clause as be question approximately prior years four appeal, government's low and the September 1998 order. thereto, response and the court's district does assumed, matters, purposes pre- Emerson of his not address either of those we trial to dismiss motion on Commerce Clause do not address either of them. has Emerson grounds, pistol that the had traveled into Tex- not error in the district demonstrated court’s merely disarmed that a citizen be requires Amendment Tenth

IV. “boilerplate subject to a being because con held that court The district injunctive] order with relations [domestic 922(g)(8) of section enactment gressional Emerson, 46 findings.” particularized no Amendment Tenth violate did not opines government at 611. F.Supp.2d Finding no reference Constitution. to reverse requires us that stare decisis Court, to this brief Emerson’s this issue the individ- embrace court’s the district Amendment his Tenth must we consider govern- Amici model. ual claim abandoned. binding precedent if argue that even ment reversal, the flaws require does not Amendment Second V. analy- Amendment district court’s Second provides: Amendment The Second sis do. Militia, neces- being regulated “A well State, the free security of a decades, com- sary to In the last few courts and bear may fairly offered what mentators have arms, infringed.” not be shall basic in- three different characterized Amendment. Second terpretations of Sec- and Overview A. Introduction Amendment first is that Second Models ond individuals; rather, apply does of a state to recognizes merely that the court held Second The district rights” or This “states’ arm its militia.9 right of indi- recognizes the Amendment interpretation rights” fire- “collective possess own and to vidual citizens by has embraced Amendment been 922(g)(8) Second arms, that declared section and gov- The of sister circuits.10 face it several our because unconstitutional its was Perspective, 76 Chi.-Kent in Historical to under ment pretrial dismiss of his motion denial (2000); Heyman, J. Natural Steven L.Rev. 195 Clause. the Commerce Amendment, do, Rights Second assuming, we that the instant the as 76 Even Chi.- (2000); H. Uviller & 237 Richard after in interstate commerce firearm traveled Kent L.Rev. Merkel, The Amendment 922(g)(8), § William G. Second September 1994 enactment the Predicate, Vanishing Case by prior prece- Context: The our though we are bound (2000). 403 dent, appears to us that the 76 Chi.-Kent it nevertheless L.Rev. regarded generation would have founding every proponent con- of this model Not clearly illegitimate construction way. exactly For ceives of it in same pro- federal which allowed Commerce Clause argue Heyman that the example, and Uviller non-commercial, passive, hibition mere simply guarantees that Second Amendment acquired in personal of a possession firearm anything do government will not the federal state) (as law federal well as accordance destroy to militia. always within the which thereafter remained acquired. (4th was state in which 47 Pepersack, 122 10. In Love v. F.3d Cir.1995), brought suit under 42 a citizen Bellesiles, A. The Second 9. See Michael against violat- § state U.S.C. 1983 officials Action, Amendment L.Rev. 61 76 Chi.-Kent alia, rights ing, her Second Amendment inter (2000); Bogus, History The and Poli T. Carl purchase a by denying application to her Scholarship: Amendment A tics Second stating Second handgun. “[t]he After Primer, (2000); 3 Carl T. 76 L.Rev. Chi Kent states,” apply to the id. does not Amendment History the Second Bogus, Hidden The goes on to observe that “the the court Amendment, (1998); 31 U.C. Davis 309 L.Rev. collective, preserves a Second Amendment Henigan, A. Keith & A. Ehrman Dennis individual, right.” Id. than rather Century: Second Twentieth Amendment Warm, F.2d 106 Lately?, United v. 15 U. In States Your Militia Have Seen You Cir.1976), Finkelman, (6th in note in- (1989); also discussed “A Paul Dayton L.Rev. " the Sec- fra, stated: 'Since Circuit Amend- Sixth Regulated Militia”: Second Well eminent commended the governments states’ and state fail provide view of the Second Amendment necessary firearms for such militia service. court, district urging that the Second present, At virtually only such orga- Amendment apply does not to individual actively nized and functioning militia is the citizens. Guard, National and this has been the case many years. Currently, the federal

Proponents of the next model admit that government provides the necessary imple- the Second recognizes Amendment some warfare, ments of firearms, including limited species right. of individual Howev- Guard, the National er, likewise this has supposedly this “individual” right long Thus, been the case. under this only bear arms can mod- by be exercised mem- el, the Second poses bers of a Amendment functioning, organized no obsta- state mili- cle tia who bear the the wholesale part arms while and as a disarmament of the actively American A participating people. the organized number of our sister militia’s activities. The circuits have right accepted model, “individual” some- keep arms only applies to members times referred to commentators as the militia, such a then if the sophisticated federal collective rights model.11 On right ond against "to bear zen ap- state officials who denied his applies only right Arms” plication of the State to weapons for a permit. concealed maintain a militia and not to the individual's The Ninth Circuit decided to "follow our sis- arms, right to bear there can be no serious holding ter circuits in the Second any express claim to constitutional states, an Amendment is a held " possess (quot individual to a firearm.' Id. protect possession does weapon of a States, ing Stevensv. United F.2d Thus, private citizen.” Id. at 101. (6th 1971)). Cir. plaintiff's standing dispositive, lack of Gillespie City Indianapolis, In v. 185 F.3d though court did note Second (7th 1999), police Cir. officer convicted incorporated against Amendment "is not of a misdemeanor crime of domestic violence states.” Id. at 103 n. 10. because, was fired under 18 U.S.C. 922(g)(9), § longer possess he could no a fire States, In Cases v. United 131 F.2d was, result, arm perform as a unable to (1st 1942), 923 Cir. also in note discussed brought his against city duties. He suit the infra, the First Circuit concluded that the challenged constitutionality officials and the infringed Second Amendment was not be on, alia, 922(g)(9) §of inter Second Amend cause there was no evidence that the defen grounds. rejected ment The Seventh Circuit dant or had been a “was ever member of challenge, noting the that the Second Amend military organization that his use of the introductory "suggests” ment's clause that it weapon preparation military ... was in for a "inures not to the individual but to the career” and the evidence he showed was "on collectively, extending its reach so as is far any thought a frolic of his own and without necessary protect their common interest contributing efficiency intention of protection by Despite a militia.” Id. at 710. regulated the well militia.” Id. While the the collective nature of the Second Amend adopt First Circuit did not explicitly the so ment, plaintiff the court found had stand model, phisticated rights analysis collective its ing to mount his Second Amendment chal many respects is in consonant with it. lenge. Id. at 711. The court also said that Rybar, In States v. United 103 F.3d the Second Amendment was not violated be (3d 1996), Ry- Cir. the Third held that Circuit "plausible cause under no set of facts” would membership general, unorganized bar’s viability efficacy "the of state militias ... 311(a) § militia by prohibiting undermined established 10 U.S.C. did those convicted perpetrating possession pos gun domestic not cause his of a violence machine from sessing weapons affecting activity in or be so with interstate connected militia that the applied. Rybar commerce.” Id. Second Amendment While Block, (9th v. Hickman 81 F.3d adopting Cir. was not clear about whether was 1996), § rights involved another 1983 suit a citi- sophisticated view or states' None of our the district court. adopted by has abandoned government appeal model, to this and now advocates has subscribed sister circuits rights model states’ rights model. collective as the individual sophisticated by commentators known model. The model or the standard rights that the Sec- simply model The third enjoyed consid- rights view has individual recognizes Amendment ond endorsement, especially academic erable This is and bear arms. individuals to the last two decades.12 Emerson the view advanced ages view, males between as all able-bodied consis- fined rights it seems more collective organized or retired 45 not in the 17 and with the latter. tent Hale, (8th guard-or F.2d 1016 the reserve v. United States national In militia-or Cir.1992), Eighth list) it unnec- Circuit found possession of machine did not render his rights or essary preser- to either the states' to commit guns pipe related to the bombs so rights model sophisticated collective regulated militia that it of a well vation pro- court The Second Amendment. necessary to determine whether the Second history, we "[cjonsidering this claimed "creates” collective individ- Amendment that the Second cannot conclude The right. & n. 18. court ual Id. 1273-74 military possession protects the individual "[tjhe possibility re- also stated that Yet, went the court weapons.” Id. at 1019. sponding crisis state authorities future defendant's actual on to consider whether unorga- might aid of seek the members "reasonably guns was possession of machine speak to the militia's nized militia does not regulated of a preservation well related to the ap- regulation.” Again, this current state of Circuit Like the Third Id. at 1020. militia.” sophisticated proach is consistent with Eighth held mem- Rybar, Circuit rights model. states’ unorganized did not bership militia in an sophisticated further discussion For relationship satisfy test. the reasonable model, rights see Robert J. Cottrol collective relation- the reasonable court felt that unless Diamond, Auxiliary Raymond & T. The Fifth satisfied, ship it was "irrelevant” test was (1995) Right, L.J. 1003-1004 104 Yale collec- Amendment was whether the Second Lund, Amend- TheEnds Second and Nelson However, the Id. in nature. tive or individual Jurisprudence: Disabilities and ment Firearms the defen- inquiry the nature of court’s into Orders, Restraining 4 Tex. Violence Domestic guns is more possession the machine dant's (1999). Rev. L. & Pol. 184-86 sophisticated collective compatible rights model. Bursor, a Functional 12. See Scott Toward Oakes, (10th 564 F.2d 384 United States v. Interpreting the Second Amend- Framework for Cir.1977), Rybar. In Oakes the is similar ment, (1996); Robert J. 74 Texas L.Rev. the individual Tenth Circuit rebuffed first Diamond, Raymond & T. Cottrol Fifth Amendment, then view of Second (1995); Auxiliary Right, Yale L.J. 995 that, argument because rejected defendant's Dowlut, Right to Arms: Does The the Robert of Kansas "technically” a the he was militia, member Judges or the Predilection Constitution its militia as law defined Kansas (1983); Stephen P. Reign?, 36 Okla. 65 L.Rev. citizens between include all able-bodied male Halbrook, Right People the Power The the or possession of machine ages 21 and his Militias, Arms, Arming Bearing State: the gun preserved of the militia effectiveness Amendment, 26 Val. and the Second U.L.Rev. applied. that Amendment such the Second Halbrook, (1991); Stephen P. What the 131 specify Second court did whether the The Linguistic Analysis A Intended: Framers right of ex- an individual Amendment tremely Arms", Right 49 Law & to "Bear Contemp. protected scope whether it limited Jr., Kates, (1986); Don B. The Probs. 151 however, individuals; only states rather than Ideology and the Second Amendment defen- of Self- willingness to address the court's Protection, (1992); Don 87 B. 9 ac- argument Const. dant’s state more Comm. militia Kates, Jr., Handgun Origi- and the Prohibition rights sophisticated collective cord with the Amendment, Meaning 82 nal Second model. Levinson, (1983); Sanford (11th L.Rev. 204 Wright, F.3d United States 117 1265 v. Mich. Amendment, to, Embarrassing 99 Cir.1997), The Second upon, and relied Hale. is similar Lund, (1989); The 637 Nelson Ends Yale L.J. member- The court held defendant’s militia”(de- Jurisprudence: Fire- Amendment ship Georgia’s "unorganized Second 221 turn to question We now of whether the indictment charged the defendants the district court erred in adopting an with transporting in commerce, interstate rights individual or standard model as the from Arkansas, Oklahoma to an unregis- basis of its construction of the Second tered “Stevens shotgun having a barrel Amendment. less than 18 in length” inches without hav- ing required stamped order, written

B. Stare and United Decisis States v. contrary to the National Firearms Act.14 Miller The defendants filed a demurrer challeng- The government steadfastly maintains ing the facial validity of the indictment on Court’s decision Unit- Supreme that the ground that “[t]he National Firearms Miller, ed States v. 307 U.S. 59 S.Ct. Act ... offends inhibition of the Sec- (1939), 83 L.Ed. 1206 mandated accep- Amendment,” ond and “[t]he District rights sophisticat- tance collective Court held that 11 section [pro- Act model, ed rights rejection collective scribing transportation interstate of a fire- model, the individual or standard as arm, defined, as therein regis- lacked basis construction of the Second tration or a stamped order] violates the disagree. Amendment. We Second Amendment. It accordingly sus- Only in United v. Miller States tained the demurrer quashed has the the in- Id. Supreme Court any holding rendered re- dictment.” govern- 817-18. The specting ap- Second Amendment ment appealed, and we have examined a plied to the government.13 There, federal copy of its brief.15 The Miller defendants arms Disabilities only upon and Domestic Re power, Violence the federal and have no Orders, straining 4 Tex. Rev. L. & Pol. 157 proceedings reference whatever to courts," in state (1999); Lund, Nelson The Past and Future citing Barron v. Baltimore and Cruik Arms, Right Individual’s holdings shank. As these 31 Ga. L.Rev. 1 all came well before (1996); Reynolds, Glenn H. A Critical Guide Supreme began process Court of in Amendment, to the Second 62 Tenn. L.Rev. corporating provisions certain of the first (1995); Shalhope, E. Ideological Robert The eight amendments into the Due Process Amendment, Origins the Second 69 J. Am. Amendment, Clause of the Fourteenth and as (1982); Alstyne, William Van Hist. they ultimately equally rest on a rationale Second Right and the Personal amendments, applicable to all those none of

Arms, (1994); Eugene 43 Duke L.J. Vo them principle governing any establishes lokh, Amendment, Commonplace Second of the issues now before us. (1998). 73 N.Y.U. L. Rev. opinion quotes The Court's the entire in- Cruikshank, 13.In United v. States 92 U.S. dictment, id. at quotes and likewise all (1875), 23 L.Ed. 588 the Court held provisions the relevant of the National Fire- the Second Amendment "is one of the amend (then §§ arms codified at Act 26 U.S.C. ments that has no other effect than to restrict (in seq.), including et the definition its section powers of the National Government.” Id. including of a shotgun "firearm” as "a Illinois, at 592. In Presserv. 116 U.S. having rifle eighteen barrel of than less 580, 584, (1886), S.Ct. 29 L.Ed. 615 length.” inches in Id. n. 1. Court, reaffirming citing Cruikshank and Bar Baltimore, (7 Pet.) ron v. U.S. 32 L.Ed. (1833), 15. urged The demurrer further held that the Na- that the Second "amendment upon is a tional Act only limitation the Firearms was also unconstitutional con gress government, and the because was national it “not a and not revenue measure but an And, upon attempt that of the usurp police power state.” in v. reserved Miller Texas, 153 U.S. 14 S.Ct. L.Ed. States.” Miller at 817. court The district did (1894), held, the respect Court Supreme this address contention. The untenable,” "the second and "plainly fourth amendments” Court it as dismissed cit- States, operate "the restrictions ing Sonzinsky of these amendments v. United 300 U.S. that the have said some courts any ap- “While nor made any brief filed neither right includes bear arms the right to Supreme Court. pearance pro- the have them for individual to the Court brief Supreme government’s The property person of his tection out that: points “[pjreliminarily” to bear right of the well as the does not Firearms Act “... the National Brown, 253 collectively {People v. them limit- only to a firearms but to all apply Duke, 245; v. State Mich. 235 N.W. The term ‘firearm’ firearms. class of ed 455), in cases are unanimous 42 Tex. the ... 1 of Act the in Section is defined in ‘arms’ as used holding that the term having or rifle shotgun ‘a only to refer only to provisions refers constitutional in length, inches than 18 of less barrel ordinarily used weapons which are those except pistol weapon, any other purposes defense military public for dis- revolver, which a shot is from weapons relate to those and does not weapon if explosive such by an charged by commonly used criminals. which are on the being capable of concealed is Humph., Aymette [2 v. State Thus in includes a gun, machine or a person, (1840)], supra, (p. it said was Tenn. 154 for firearm or silencer muffler 158): included such firearm is or not whether ” at foregoing {id. definition.’ within object right for which ‘As the 6). secured, arms is is of keep bear goes on to the brief In connection nature, exer- public to be general “indisputable that Con- it is assert body, for their by in a cised intend- striking not at gress weapons arms, defence, so common at which weapons use but legitimate ed for secured, keep which is are right and the gangster form arsenal in usually civi- employed such as are 7) and that National at desperado” {id. warfare, lized constitute transpor- Firearms Act restricts interstate military equipment. If the ordinary weapons which are only “of those tation arms in their citizens have these 8). {id. of the criminal” tools hands, in the best prepared are thereafter government’s brief The any en- repel manner possible essentially legal arguments. two makes upon rights their croachments First, not, authority. that the secured They contends in need those “only one weap- Second is purpose, such a the use those the arms are borne which exists where usually are employed ons which military organiza- other the militia or some broils, and which efficient private by law and intended for provided tion in the hands of the only robber of the state.” Id. 15. protection weapons would These assassin. This, essence, collec- sophisticated is the They could not be war. useless tive model. advantageously in the com- employed mon defence of citizens. two ar- government’s

The second them, not, and bear is fol- guments Miller reflected therefore, by the constitu- secured from its brief: lowing passage (1937), government’s brief addressed L.Ed. 772 and several 57 S.Ct. Act,” of Nation- of whether section 11 in- the issue "under the Harrison Narcotic cases States, Second al Act contravened the cluding Nigro U.S. Firearms v. United 276 (1927). Miller at Amendment. 72 L.Ed. S.Ct. ” (Id. 18-19).16 tion.’ at keep to and bear arms for lawful purposes and does not conceivably relate government’s pro- Miller brief then weapons type referred to in the (at 19-20) pp. ceeds to cite various other National Firearms Act cannot be doubt- cases, Baldwin, state and Robertson v. ed. Sawed-off shotguns, sawed-off rifles 326, 329, U.S. 17 S.Ct. 41 L.Ed. 715 guns machine are clearly weapons (1897),17 support in of argument, its second which can have no legitimate use in the and states: private hands of individuals.” foregoing “That the cases conclusively Thereafter, establish that the Second Amendment government’s the brief its has right relation “conclusion” states: “... we respectfully 12-14) government's (pp. 16. The Miller brief passage obviously referred to in the quotes length Aymette at pp. brief, also from 156— government's (17 Miller as follows S.Ct. background support argu- as for its 329): first (namely ment that the Second Amendment "... the first 10 amendments to the consti- protects bearing only arms where it occurs tution, commonly known as the 'Bill of service). However, during actual militia Rights,' lay not any were intended to down Aymette language quoted while some of the principles government, novel simply but direction, holding tends in that the actual embody guaranties certain and immuni- appears that case to rest on the basis stated in ties which we had inherited our from En- quotation set out in the text above. In ancestors, had, glish and which Aymette time appealed the defendant from his conviction immemorial, violating subject been making the statute to certain it a misde- well- recognized any exceptions, meanor to "wear arising bowie knife ... under from the ne- clothes, per- his or ... concealed about his cessities of the incorporating case. In these son.” The evidence showed that the law, defen- principles into the fundamental there dant, with "a bowie-knife concealed under his disregarding was no excep- intention vest,” looking went into a hotel for an individ- tions, recognized which continued to be ual said he he intended to kill. He contended Thus, formally if had expressed. been appeal the conviction violated the (arti- speech press freedom of provision of the Tennessee constitution de- 1) permit cle publication does not claring "that the free white men of this State libels, articles, blasphemous or indecent or right keep have a and bear arms for their publications injurious public other mor- emphasized common defence.” The court private reputation; als or presence significance of the word (article and bear arms although "common.” But it was obvious infringed by prohibiting not laws carry- from the facts recited that the defendant was ing weapons; provision concealed engaged character of militia ser- person put that no shall jeopar- be twice question, vice on the occasion in but was (article 5) dy prevent does not a second engaged only rather entirely personal in an trial, upon if jury the first trial the failed to own, activity Aymette of his court did not agree, or upon if the verdict was set aside Rather, ground make this a for its decision. the defendant’s motion ... nor does the appears to have affirmed on the basis that provision of the same article that no one Legislature prohibit "[t]he ... have a against impair shall be a witness his himself wearing keeping weapons ... which obligation testify, prosecution against if a warfare, are not usual in civilized time, lapse par- him be barred and, not contribute to the common defence” don, by statutory enactment ... Nor alternatively, Legislature may pro- that "the provision person does the that an accused wearing hibit such manner of [arms] as would shall be with the witnesses confronted by persons engaged never be resorted to against prevent him dying the admission of the common defence.” Id. at 159. declarations, depositions or the of witnesses Court, (em- who have died upholding In Robertson the since the former trial.” added) constitutionality phasis of the federal statute autho- rizing apprehension, imprisonment Miller, opinion The Miller cites Robertson. seamen, stated, deserting return of merchant S.Ct. at 820 n. 3. 224 militia, say 11 that of the National lated we cannot the

submit that Section infringe right guarantees ‘the Second Amendment Firearms Act does keep right keep and bear arms’ se- to and bear such an instru- of the to Certainly judicial Amendment.” ment. it not within cured the Second is weapon any notice that this is part Miller reversed the decision of the dis- ordinary military that equipment or pro- trict court and “remanded further its use could contribute to the common Id. at 820. We believe it is ceedings.” Tennessee, Aymette defense. v. State of entirely Supreme that the de- clear Court 2 Humph., Tenn. 158.” Id. at 818 govern- the basis of the cided Miller on added). (emphasis a argument “shotgun second ment’s —that page Aymette (p. Note the cited eighteen than having a barrel of less the page govern- is from which the in length” inches in as stated the National quoted support ment’s brief in of its sec- (or merely cannot Firearms Act is not (see argument ond text at call for note be) 16 to one of the “Arms” which assumed ).18 supra infringe- prohibits the Second Amendment right keep ment of the of the to Nowhere in the Miller opinion Court’s govern- bear—and not on the basis any there reference to fact that (that argument ment’s Second remotely suggest indictment does not first protects peo- either of the two defendants was ever a ple to and bear no character of militia, any organized, member of active actual, “arms” when not in borne active Guard, such as the National much less that in mili- service the militia or some other (or either engaged was about to en- law). tary organization provided gaged) any military actual service or holding expresses Miller its as follows: training of such a militia unit when trans- “In tending porting the absence of evidence shotgun sawed-off from Okla- to possession show that or use of a homa into Arkansas. Had the lack of such ‘shotgun having a barrel of less than membership engagement a ground been eighteen Miller, length’ inches in this time decision opin- Court’s relationship has some to obviously reasonable ion would have made mention of preservation efficiency a regu- of well it. But it did not.19 however, define, opinion’s attempt We also observe that the Miller or otherwise con- strue, quotation above right protected by reference in marks to a shot- substantive " gun 'having eighteen Second barrel of less than Amendment.” ” length’ quotation Further, inches in is a from section States, in Cases v. United 131 F.2d Act, 1 of the National Firearms not from the (1st Cir.1942), the First Circuit inter- (which indictment "a refers to double barrel preted resting entirely type Miller as on the 12-gauge shotgun having Stevens a barrel weapon having any involved not reasonable length”). less than 18 inches relationship preservation efficiency of a court, regulated well militia. The Cases how- Thomas, ever, 19. We note that Justice his con- stated ''we do not feel that the States, curring opinion Supreme v. United Court in this case [Miller was at- Printz U.S. tempting general applica- S.Ct. n. formulate rule (1997), L.Ed.2d 914 remarked that Mil- "[i]n ble to all cases. The rule it which laid down ler, adequate we determined dispose that the Second Amend- of the case before it guarantee ment did not a citizen’s Supreme and that we think was as far as the Id., possess shotgun go.” sawed-off because that Court intended to 131 F.2d at 922. weapon 'ordinary had not been shown to be Cases thereafter observes: military equipment’ "Considering many that could 'contribute variable factors not, bearing upon question common defense.’ The Court did seems us any Nor do we that portion believe other signification “The attributed to the term of the Miller opinion supports sophisti- the appears Militia from the debates in the cated collective rights model. Convention, the history legislation States, of Colonies and and the writings

Just after the above quoted portion of of approved commentators. These show the Miller court continued in a opinion, its plainly enough Militia com- separate paragraph initially quoting the prised, all males physically capable (clauses 1, § militia clauses of article of acting in concert the common de- 16)20 and concluding: for ... ordinarily when called for ser- fense. purpose “With obvious to assure the vice these men expected were appear continuation and render possible the ef- bearing supplied arms by themselves of fectiveness such forces [militia] and of the kind in common use at the declaration guarantee of the Second time.” Amendment were made. It must be

interpreted applied with that end in view.” Id. at 818. “The American In Colonies the 17th Miller proceeds then to discuss what was Century,” Osgood, XIII, Vol. ch. af- “militia,” meant the term stating firms early system reference to the part: defense New England— impossible any general formulate test tain a militia and not to the individual’s ” which to imposed by arms,' determine the limits recognized bear nevertheless the Second Amendment but that each case Miller, this conclusion was not based on stat- it, under like process cases the due under ing that question Miller "did not reach the clause, must be decided on its own facts weapon extent to which ‘part a which is and the line between is and what what is ordinary military equipment' or whose not a pricked valid federal restriction out 'use could contribute to the common defense' falling decided cases on one side or the may regulated” be agreeing with Cases of the other line.” Id. Supreme "that the lay Court did not down a on, goes Cases then analysis without further Id., general rule in Miller." 530 F.2d at 105- authority, or citation of to conclude that al- 06. The court also stated that the Second though (a weapon there involved .38 cali- Amendment, protected even if individual revolver) use, "may capable ber military rights, "does not constitute an absolute barri- familiarity or ... with it of value in ... train- congressional regulation er to the of fire- ing person a comparable weapon to use a arms,” noting that "even the First Amend- military type,” nevertheless the Second ment has establishing never treated as been infringed Amendment was not because "there prohibition against an absolute limitations on is no appellant evidence that the was or ever rights guaranteed therein.” Id. at 107. had military organiza- been member of tion weapon that his use of the ... was in 1, § Congress 20. Article 8 commences "The preparation military for a career” but he was Power,” shall have and states in clauses "simply rather of his frolic own and and 16: any thought without or intention of contribut- provide calling "To for forth the Militia to ing efficiency regulated well Union, execute suppress Laws militia which the Second Amendment was Invasions; repel Insurrections and designed to foster....” Id. at 922-23. provide To organizing, arming, Warin, and dis- (6th In United States v. 530 F.2d 103 Militia, ciplining, Cir.1976), governing and for (rejecting the court a Second may such Part of challenge employed as pos- Amendment them conviction States, sessing unregistered reserving the Service of an the United inch barrel subma- 7% gun contrary respectively, Appointment chine to the to the States National Firearms "

Act), Officers, though concluding Authority training 'the Second right' according discipline 'to and bear the Militia arms' to the pre- applies only by Congress.” of the State to main- scribed says purposes were colonies, Miller England, effectiveness

“In all the Amendment, princi- based on referred system was the Second militia implied arms. This the assize male ple of of the civilian inhabitants generality all adult male obligation general the teenage years their lives from throughout arms, and, with possess to inhabitants keep- personally and to their age until old cooperate to exceptions, certain arms, merely and not to ing their own ” (emphasis Id. at 818 defence.’ work of (if any) they during the time individuals added). in actual mili- actively engaged might be Massachusetts, Court “The General who only or to those were tary service (Laws and Re- 1784 January Session or select units. special members of 142), 140, 1784, 55, provided pp. c. solves sup- not Miller does We conclude that government organization rights or government’s collective port the that the Train It the Militia. directed rights approach collective to sophisticated able bodied Band ‘contain all should Indeed, Amendment. the Second men, years age, forty from sixteen mat- light on the List, extent that Miller sheds other men under Alarm all and the ” ** posi- against government’s Id. 819 sixty years age, ter cuts added). any (emphasis government cite tion. Nor does the authority binding panel on this which other suggest from Miller that passages These acceptance position of its this mandates militia, of whose continu- the assurance However, proceed we do not on respect.21 rendering possible of whose and the ation infringed by language Second Amendment "is laws government in a relies The States, carrying weap- prohibiting concealed 445 U.S. v. United footnote in Lewis ons,” jeopardy 8, clause does not 55, 915, the double 63 L.Ed.2d n. 198 100 S.Ct. 921 agree, jury preclude retrial fails where (1980), stating respect to the then felon- with dy- does not exclude the confrontation clause (former U.S.C.App. in-possession 18 statute declarations, etc.). ing Dow- See also Robert 1202(a)(1)): § lut, Right Does the to Arms: Constitution legislative restrictions on the use of “These Judges Reign?, 36 Okla Predilection of upon constitu- based firearms are neither 65, (1983) ("Colonial English 96 L.Rev. criteria, tionally suspect nor do trench century, eighteenth as well societies of the as constitutionally protected liber- upon any counterparts, excluded in- their modern have Miller, States v. 307 U.S. ties. See United idiots, lunatics, fants, pos- [from and felons 818, 83 L.Ed. 1206 59 S.Ct. Halbrook, firearms].”); Stephen sessing P. (1939) (the guarantees Second Amendment Linguistic Intended: A What the Framers keep and bear a firearm no that Arms”, Analysis Right to "Bear 49 Law relation- does not have 'some reasonable ("violent (1986) crim- Probs. Contemp. & efficiency of ship preservation inals, children, those of unsound mind militia').’’ regulated well firearms_”); may deprived Don B. rights suggest a collective This does not Kates, Jr., Origi- Handgun Prohibition and the rights approach sophisticated collective Amendment, Meaning Second nal does Mil- Second more than (1983) ("Nor does it Mich. L. Rev. recognition We also ler itself. note considered seem that the Founders felons leg- prohibit does not the Second Amendment or in- law to arms within common 1202(a)(1) § as no them.”). islation such former right upon any such tended to confer way an individual inconsistent with presented that Lewis We further observe no Baldwin, See, e.g., v. challenge model. Robertson Second Amendment 326, 329, 1202(a)(1) 41 L.Ed. 715 U.S. 17 S.Ct. § and the Second conviction (1897) (bill supra) (quoted note there. Amendment was not issue rights protections government but sub- cites in this connec- are not absolutes also States ject exceptions, in United v. so the First Amendment tion our decisions Cir.1971), libels, Williams, (5th 446 F.2d permit publication of does not assumption actually accept- Miller This would require also a corresponding rights, ed individual opposed an to a change in the balance of the text to some- sophisticated rights, collective or collective thing like “to provide for the militia to interpretation of the Second Amendment. keep and bear arms.” That is not far Thus, Miller itself does not resolve that removed from the actual wording of the turn, therefore, analysis issue.22 We to an Amendment, Second also but would be in of history and of the Second wording substantial 8,§ tension Art. Cl. 16 guidance. Amendment for In undertaking (Congress has the provide “To analysis, we are ”). mindful that almost ... arming ... the militia ... For the all of our sister rejected any circuits have sophisticated rights collective model to be rights viable, individual view of the Second the word “people” must be read as However, Amendment. it respectfully ap- the words “members of a select militia”.23 pears to us all that or almost all of model, these The rights course, individual of opinions seem to have done so either on not require any does that special or unique assumption the erroneous that Miller re- meaning be attributed to the word “peo- solved that issue or without sufficient ar- ple.” gives It meaning the same to the ticulated examination history of the people” words “the as used the Second text of the Second phrase Amendment. Amendment peo- “the ple” as when used in the exact same Text

C. phrase in the contemporaneously submit- begin We ted and ratified construing the Second First and Fourth Amend- by examining Amendment ments. its text: “[a] Militia, regulated

well being necessary to There is no evidence in the security State, of a free of Amendment, text of the Second or Arms, the people and bear shall part Constitution, other that Const, not infringed.” be U.S. amend. II. people” words “the have a different conno within tation the Second Amendment than 1. Substantive Guarantee employed when elsewhere the Constitu “People” a. fact, Constitution, tion. In text rights requires whole, states model a suggests as strongly that “people” the word though be read as it “the people” words have precisely the were “States” or respectively.” “States meaning same within the Second Amend Johnson, (5th United States v. e.g., "weapons 441 F.2d 1134 legitimate which can have no 1971), Cir. but these National Firearms Act private use in the hands of individuals” so as unregistered shotgun prosecutions sawed-off categorically to be scope from excluded apply do no more than virtually Miller to the Second under Miller’s hold- adopt suggest identical facts and do not ing). adopted rights Miller a collective or so phisticated rights approach collective to the 23. As noted below in our discussion of the Second Amendment. Amendment, history many Second only Americans at this not time feared a 22. There is no contention here that the Beret- militia, standing army but a select possessed also pistol ta type weapon is a kind comprised only relatively militia "any part is neither few se- ordinary mili- tary (perhaps youngest lected equipment” individuals nor such "that its use could fittest) frequently who were contribute common defense” within more and better (nor language equipped general, Miller it is trained and otherwise than the unor- type weapon ganized the kind or within militia. embraced Such a select militia would government’s in the argument, analogous today's second Miller National Guard. Arms,’ and the Ninth and And, keep and bear throughout used as without. ment provide that certain Amendments have Tenth Constitution, people” “the retained powers are rights and but federal “powers,” “rights” and this tex- people.’ ‘the While reserved to only “powers” have governments state conclusive, no means Moreover, exegesis tual “rights.”24 “authority”, never protected suggests people’ that ‘the recognizes likewise text the Constitution’s Amendment, by the the Fourth the “mili between the difference Amendments, and to First and Second but also between people” “the tia” and powers are reserved whom “call[ed] has not been which “militia” Amendments, re- Tenth the Ninth and militia, service.” when actual “the forth” and part who are fers to a class of 25 community or who have other- national people,” “the meaning of view of the Our developed connection wise sufficient Constitution, harmony inis as used part country to considered with Court’s Supreme States United omitted) (citations community.” of that States v. Verdu in United pronouncement Supreme Court other S.Ct. Several go-Urquidez, U.S. (1990), 222 of the 1060-61, 108 opinions speak L.Ed.2d that: Second “ that the plainly indicating in a manner have seems to been people’ ‘[T]he people” to “the is an which it secures right of parts employed select term of art not a collective or personal, or individual de- The Preamble the Constitution. in the sense right same quasi-collective, is ordained Constitution clares the people” to “the rights secured People of the that the by ‘the and established Amendments, and and Fourth Amend- the First The Second United States.’ provisions other rights by secured the to the people of the protects right ment ‘the cause, issue, 1, ("[a]ll upon probable I, shall but § 1 rants Art. Cl. 24. See U.S. Const. affirmation, partic- granted by shall be Oath or legislative supported Powers herein searched, Congress describing United ularly place of the to be vested in a the I, 8, ”); ("reserving seized.”) to things § 16 States.... Cl. to be persons Art or and the Appointment of added); ("[t]he the respectively, States the amend. IX enu- (emphasis Officers, training Authority the of Constitution, the the rights, of certain meration discipline prescribed according Militia to disparage deny be construed to or not shall 1, II, ("The § exec- by Congress.”); Cl. 1 Art. by people.”); X amend. retained others in a President of utive Power be vested shall ("[t]he delegated powers to the United not Ill, 1, America.”); § United of Art. States Constitution, prohibited by nor States ("The of United judicial Power Cl. 1 States, to the States reserved to States, supreme Court in one shall be vested people.”). respectively, or to the ....”); ("Congress make no shall amend. I Congress plain that First knew It is also religion, respecting law an establishment of peo- distinguish between "the full well how thereof; or prohibiting free exercise or states, e.g. X. ple” and the amend. speech, abridging the freedom peaceably to press; right or the I, ("[t]o § Art. Cl. 15 U.S. Const. See assemble, petition the Government calling the Militia to provide for forth execute added); (emphasis grievances.”) a redress of Union, suppress Insurrections Laws Militia, ("[a] being regulated amend. II well ("No Invasions”); person repel V amend. State, the necessary security a free capital, for a or other- be to answer shall held Arms, right keep and bear crime, presentation on a wise infamous unless added); infringed.”) (emphasis shall Jury, except in of a Grand cases or indictment people to be amend. IV {“'The forces, or in houses, arising in the land or naval papers, and persons, secure their Militia, in time War effects, when in actual service against searches unreasonable ”). violated, seizures, public danger.... War- no shall not 229 amendments, eight of the first are individ- applies to a member of the militia carrying ual personal, and not quasi- weapons collective or during actual militia service. See, e.g., Planned Par- Champions of the individual rights model collective, rights. Casey, enthood v. 505 U.S. opine S.Ct. that “bear arms” any carry- refers to 2791, 2805, (1992); 120 L.Ed.2d 674 Moore ing of weapons, whether by a soldier or a Cleveland, City v. East 431 U.S. 97 civilian. There is question no 1932, 1937, (1977);26 S.Ct. 52 L.Ed.2d phrase may “bear arms” be used to refer Baldwin, supra (see Robertson v. quota- carrying of arms a soldier or v. tion in note 17 Sandford, Scott militiaman. supra); The issue is whether “bear (19 How.) 393, 417, 450-51, 60 U.S. arms” was commonly also to refer used (1856). 691, 705, L.Ed. the carrying See also Jus- arms civilian. tice Black’s concurring opinion in Duncan The best evidence that “bear arms” was Louisiana,

v. 391 U.S. 88 S.Ct. primarily used to refer military situa- (1968).27 20 L.Ed.2d 491 State, tions comes from Aymette v.

It appears Humph., people,” (1840), clear that “the Tenn. 154 prosecution Constitution, used in the including carrying the Sec- a concealed bowie knife. The Amendment, ond Supreme Tennessee, refers individual Court in constru- Americans. ing section of its rights, declaration of providing “the free white men of this

b. “Bear Arms” State have a to keep and bear arms defence,” for their Proponents common of the states’ stated: rights and sophisticated collective models “The 28th section of our of rights bill argue phrase that the “bear arms” only provides ‘that no citizen of this State portions 26. The cited Casey of and Moore 27. concurring Justice Black's opinion in Dun- quote approval with quotes from Justice approval Harlan’s can with portion a of the dissenting Ullman, opinion in Poe v. 367 U.S. remarks Senator introducing of Howard on 1752, 1776-77, 81 S.Ct. 6 L.Ed.2d 989 the passage Amendment Fourteenth for (1961), others), Senate, following passage the (among stating privileges that its and immuni- viz: ties clause should include: " " scope liberty guaranteed '[T]he full of the personal rights guarantied ‘... the and by the Due Process Clause cannot be by found secured eight the of amendments the first precise Constitution; in or limited the terms of the speech such as the freedom of specific guarantees provided elsewhere press; in right of the the of the the "liberty” Constitution. This peaceably is not a petition to assemble and the Gov- points series of pricked isolated in grievances, out ernment a right redress of taking terms of property; free- appertaining people; to each and all the speech, press, dom of religion; arms; right keep right and to bear arms; right and bear exempted the freedom quartering from the of soldiers seizures; from unreasonable searches and in a house without the consent of the own- ” er; and so on.’ right exempt to be from unreason- language quoted approval seizures, same in able searches and from Id., Justice White's dissent. Moore 97 S.Ct. at except by search seizure or of a war- virtue portion 1957-58. An Casey affidavit; earlier of the upon rant issued a formal oath or opinion speaks rejecting right notion that person of an accused to be in- "liberty Fourteenth Amendment encompasses formed of the nature of the accusation him, no more rights already guaranteed than against those right and his to be tried an against to the individual impartial federal jury vicinage; interference of the and also the express provisions eight right of the against to be secure excessive bail and first ” (emphasis Amendments." Id. at 2804-05 against add- cruel and punishments.’ unusual ed). added). (emphasis Id. at 1456 equivalent an so pays if he provid- arms arms to bear compelled

shall be place.28 can in his another serve to be ascer- equivalent, an pay ed he will we know that the Here by law.’ tained However, are numerous instances there sense, and no oth- military has a phrase being arms” used phrase of the “bear in that it is used er; must infer and we carrying of arms. a civilian’s describe section, which in the 26th way the same provisions declara- Early constitutional right to bear citizen to the secures some ten differ- at least tions of deer, elk, pursuit A man arms. “peo- speak ent states every rifle might carry his and buffaloes “citizens”] “to bear “citizen” ple” [or yet forty years, day ‘him- [or of themselves arms defense he had borne be said him never words, ” state,” equivalent and the self] arms.... reflecting that under indisputably thus at issue the Tennessee constitution Unlike in no arms” was usage common “bear has no the Second Aymette, mili- bearing arms in restricted to sense language defence” their common “for provisions were tary And such service.29 contains Constitution no States the United that the to bear on the enforced basis to section 28 comparable provision arms bearing was not restricted arms Ay- which the constitution Tennessee Bliss v. military actual service. See during court relied. mette Commonwealth, Ky. Am. Dec. government also supporting Amici 90,1822 (Ky.1822). WL of state constitutional examples other cite minority also note that objec- We allowing a conscientious provisions Pennsylvania ratification delegates duty bearing tor to excused from good, apply to those and to for their common Hampshire’s Constitution con- New government for powers with the provision and Rhode Island’s vested tained such by petition grievances or remon- proposed an redress 1790 ratification convention strance; right to bear States their arms Constitution amendment United State cannot a conscientious ob- and of the have defense of themselves that would included VIII, § 20 questioned.”); Const. Art. jector be clause. Ohio (1802) ("That right people have a to bear the the of themselves and (1819) arms for the defense § ("Every 23 Const. Art. See Ala. armies, State; standing in time of and as right arms of a to in defense citizen has bear dangerous liberty, not I, peace, are to shall state.”); Art. and the himself Conn. Const. military kept kept up, shall and that the be be 17(1818) right ("Every § a to bear citizen has pow- to the State.”); strict civil under subordination of and the arms in defense himself er.”); Rights of of the I, (1816) ("That Declaration peo- Const., § the Ind. Const. Art. 20 Pa. or of the Commonwealth the Inhabitants ple right a arms for the defence have bear (September Pennsylvania, Art. XIII State; State of and the of themselves and the 28, 1776) ("That right people have a the kept military be in strict subordination shall ¶ defence of themselves bear arms for the Ky. power.”); Const. Art. 23 to the civil I, (1790) state;”); § Const. Art. the ("That (1792) right the citizens to the of bear Pa. ("The right bear State, citizens to arms of the and the arms of in defense themselves I, State not of and the shall defense themselves Art. questioned”); Mich. Const. shall not be questioned.”); Declaration (1835) right ("Every person § a has Vt. State of Ver- Rights of the Inhabitants of for the defense himself and bear arms ("That (July the I, Chp. XV State.”); mont 1 art. § and the Miss. Const. Art right arms the people a to bear for (1817) have right ("Every has a to bear citizen State”) (note, State.”); arms, and the defence of themselves and the in defence himself York, was (1820) ("That by New XIII, Vermont was claimed § Mo. Art. Const. 1791). recognized a state until not as people right peaceably to have the assemble proposed following convention amend- of his [the ground, violator’s] inclosed un- ment to the Constitution: less whilst performing military duty.” 2 people

“That a right have to bear Papers 443-44 of Thomas Jefferson arms for the (J.P. defense of ed.1950). themselves Boyd, A similar indication state, States, their own or the United or that “bear general arms” was a description purpose killing game; and no of the carrying by of arms anyone is found passed law shall be disarming edition of Webster’s American them, people or unless for crimes Dictionary the English Language; committed, or danger public inju- real where the third definition of bear reads: individuals; ry from standing as wear; “[t]o bear as a authority mark of armies in the of peace danger- time distinction, as, or sword, to bear a badge, a liberty, they ous to ought kept name; to bear arms in a coat.” up; and that military kept shall be We conclude that the phrase “bear under strict subordination to and be arms” generally refers carrying or governed by the powers.” civil wearing of arms. It certainly proper to 2 DOCUMENTARY HISTORY OF THE RATIFICA- phrase use the in reference to carrying (Merill 623-24 TION of the Constitution wearing or by of arms a soldier or militia- 1976). ed., Jensen yet This is another man; thus, the context in which “bear example of “bear being arms” used re- arms” appears may indicate that it refers fer to the carrying by of arms civilians for situation, to a military e.g. the conscien- non-military purposes. Also is a revealing objector tious clauses by cited amici sup- bill drafted Thomas Jefferson pro- porting government. However, posed Virginia amici’s legislature by James (the argument Madison that “bear arms” author the Second exclusive- Amend- ment) 31, 1785, ly, usually, October even used to refer to impose penalties upon those carrying who or wearing violated arms hunting if they laws gun “shall bear a out soldier or militiaman rejected.30 must be 30. We interpret also observe that to way. con- City state Blaksley, See Salina v. 72 Kan. provisions stitutional protecting (Kan.1905) (in 83 P. 619 prosecution for the citizen or to “bear as arms” carrying pistol city within limits while intox- applying only actively where individual is icated, construing provision rights bill of engaged military in actual service is necessar- “that the people have the to bear arms (1) ily contemplate to either military actual security” for their defense and as one which service purpose including for that military “refers to the body” as a collective service other than that which is ordered exclusively which "deals military. (2) government; directed construe Individual are not considered in this provision the saying constitutional as no more section.”); Davis, Commonwealth v. 369 than that right the citizen has a to that do (1976) (in Mass. 343 prose- N.E.2d 847 which the state him do orders to thus and possession shotgun cution for of with barrel grants any right neither the citizen nor in long, provision § less than inches 18 of 17 of way restricts the of the state. Of rights people bill of right that "the a have to course, difficulty especially appli- the latter is keep and for the bear arms defense” common cable theory that such state constitu- is "not guaranteeing to directed individual provisions grant rights tional only to the state. possession ownership or weapons;” of while a (and two) (both While two only state courts in forbidding keeping "law the by individuals of century) seemingly twentieth have arms that were used in the view, militia service adopted that those two decisions do might have appear interfered recognize, then with the effective- to even attempt much less justify, anomaly ness the militia and thus construing the art. a offended consti- exists; rights right tutional conferring longer declaration of as that ... situation no rights only militia, on the any- state which had them our of which the backbone is the action in a case of or defensive of “bear Arms” offensive appearance ” person.’ with another conflict fully with the accords Amendment Second subject of the sub- meaning of

plain “Keep c. ... Arms” people,” and of- “the guarantee, stantive government Neither the nor amici proposition that the support fers no a that ... Arms” commands argue “keep only during applies Amendment Second military plain meaning connotation.31 or military of actual service periods keep arms is right of a militia. those who are members select individual, rather than a that it is an col in Finally, as used our view “bear arms” lective, keeping not limited right and is appears Amendment to be the the Second military in active ser engaged arms while dissenting in expressed as that same a of a select militia such vice or as member Ginsburg (joined by the opinion of Justice as the National.Guard. and Scalia and Sout- Chief Justice Justices States, er) v. in Muscarello United as a d. Substantive Guarantee Whole 141 L.Ed.2d U.S. S.Ct. whole, Taken the text of the as Second (1998); viz: guarantee Amendment’s is not substantive car- “Surely meaning [of a most familiar suggestive rights sophisti- of a collective is, rying firearm] as the Constitution’s rights interpretation, cated collective and bear (‘keep Second implausibility interpreta- of either such Arms’) added) and (emphasis Black’s tion consideration is enhanced ‘wear, Dictionary, at indicate: Law Bill guarantee’s placement within the bear, in carry upon person ... Rights wording and the of the other arti- pocket, pur- or in a for the clothing original and of cles thereof Constitu- ... being ready armed and tion as a whole. pose Guard, equipped sup- provision. right National is now But the to bear amts is not funds.”). unqualified that character. The citizens ported by public defence; may bear them for the common may follow but it does not Aymette,supra, 31. We note that in the Tennes- individual, merely terrify an borne Court, Supreme analyzing § 26 of see its purposes private or for assassina- ("that rights bill of the free white men of this And, Legislature may prohibit tion. ... the right keep State have bear arms for wearing such manner of as would never be defence”), their common construed different- by persons engaged the com- resorted to ly "keep” portions the "bear” of that added) (emphasis mon defence.” aspect, section. As to the "bear” the court This is consistent with the Court’s earlier ob- ("no § looked to 28 of the bill of citizen § respecting "although servation required of this State shall be to bear arms inviolably preserved, yet must be it does provided pay equivalent”) he will an Legislature prohibited not follow that the opined military "has a "bear” arms altogether passing regulating from laws § sense.” It said 26 "the likewise that in may arms manner which these be em- arms the which is secured are added). ployed.” “military” (emphasis A con- usually employed such as are war- civilized given to "bear” notation is and to some extent weapons usually fare” not "those which "keep.” Beyond to "arms” but not to such broils, employed private which are may general type connection arise from efficient the hands of the and robber military weapon, no character of status or Aymette the assassin.” thereafter observed activity required whatever was to come with- type by § that as to "arms” of the covered 26: arms;” right "keep protected to ... in the unqualified right "unqualified;” though "The have the to citizens "the to weapon, being unqualified the it character bear arms is not of that charac- being before intended this described as ter.” 2. Effect of possible Preamble the effectiveness of such forces the declaration guarantee and of the Sec- We turn now to the Second Amend- Id., ond Amendment were made.” preamble: ment’s “A well-regulated Mili- S.Ct. at 818. We conclude that the Second tia, being necessary to security the of a Amendment’s guarantee, substantive read And, free State.” we ask ourselves wheth- guaranteeing as rights, individual may as er preamble this suffices to what mandate so reasonably read be understood being would be otherwise implausible an collec- guarantee enable, which tends pro- to rights sophisticated tive or rights collective existence, mote or further the continuation interpretation of the amendment. We con- “well-regulated effectiveness Mi- clude that not. it does litia” which is “necessary to the security of Certainly, preamble im the a free State.” Accordingly, the preamble plies that guarantee the substantive is one does not an support interpretation of the enable, which tends promote or further amendment’s guarantee substantive in ac- existence, the continuation or effectiveness cordance with the collective or so- “well-regulated Militia” which is phisticated rights model, collective as such “necessary to security the of a State.” free an interpretation contrary is to the plain Miller, As the immediately Court said meaning the text guarantee, its after quoting the militia clauses of Article placement within the Bill of Rights and the (cl. I, 16), § 8 pur “[w]ith obvious wording of the other articles thereof and of pose to assure the continuation original and render the Constitution as a whole.32 It longstanding seems clear under legislature, the intention of the they whether generally accepted principles statutory con- meant it to to a extend case like that under struction, that, consideration.”); at least where the preamble Sedgwick, Interpreta- portion operative may the of the statute tion and Construction of Statutes and Constitu- reasonably consistently (Fred be read oth- each Rothman & Co. tional Law, er, preamble may properly support the not (reprint notes) ("In of 1874 edition with the reading operative portion the English which would modern cases it is said that the plainly be at odds with preamble what may otherwise be used to ascertain and the fix See, Dwarris, meaning. be its e.g., clear subject A enacting part to which matter the is to (Wm. So, applied. purview body the the General Treatise on Statutes, Sons, 1871) (footnotes omitted) & Gould ("The may preamble, act even restrained the not, general purview of a is inconsistency statute when no or contradiction re- however, necessarily by any to be sults. restrained But it is well settled that where the introductory enacting words Legislature clauses. intention of the is clearly ex- Larger stronger pressed words in the purview, preamble enactment the shall not part it, may of a statute beyond extend it although restrain it be of much narrower preamble. enacting plain, If the import.”); words Bishop, P. Joel Commentaries sufficiently comprehensive to embrace the Written Laws and Their Interpretation, (Little, Brown, prevented, 1882) (footnotes intended ("As mischief to be omitted) it, though preamble act, shall showing extend does may inducements to the it though warrant the construction.... weight But have a decisive in a doubtful case. preamble distinct, enacting part cannot control the body But where of the statute is it statute, expressed of a prevail which pream- will clear over a more restricted terms, unambiguous yet, if doubt arise on introductory ble .... We look matter enacting part, the words of the preamble general legislature, for the intent —the to, truth, may explain be resorted principles it. In upon reasons and which law that, then question itself into a proceeds. resolves of inten- So to the extent to which tion; words, other recourse is interpretation, had these can influence the primary interpretation. preamble important.... rules For the becomes In C.J.; doubtful, being preamble words Ellenborough, is com- words of 'In a vast num- act, pared Parliament, rest of in order collect although particu- ber of acts of observed, Miller, obligation of all adult male inhabitants to in “the As ” n (citation omitted).33 Id. possess arms.’ physically all males ca comprised Militia ref- frequent contemporaneous There are for the common in concert

pable acting of well-regulated being erences to “a militia” ordinarily called “that when defense” and body “composed people, of the of the to expected men were these service then, Plainly, in “a trained arms.”34 well- supplied by arms them bearing appear Militia” refers not to a regulated special Id., at 818. Miller fur 59 S.Ct. selves.” group select subset or taken out of the ... all the colonies “‘[i]n ther notes that militia as a whole but rather to the condi- whole, namely being militia a implied general ... tion of the as systems militia statute, § preamble, yet modern militia 10 U.S.C. 311 The lar mischief is recited beyond provides: legislative provisions extend far "(a) And whether the words mischief recited. The militia of the United States con- depend not must shall be restrained or of all able-bodied males at least 17 sists particular and, exposition of the statute years age except provided fair of case, upon any particular 32, and not uni- each years section 313 of title under 45 ”). are, rule of construction.' versal age who or who have made declara- become, tion of citizens of the intention particular pro- various We also observe the United States and of female citizens of the many early state visions of the bill of United States who are members Na- introductory justifica- contained constitutions clauses, usually general tional Guard. in the form a tion (b) governmental philos- The are— political or classes of the militia statement of Volokh, militia, (1) given ophy. Examples organized which consists Com- 10, supra n. 794— of the National Guard and the Naval Mili- monplace Amendment, Second 95, tia; example provi- One such is the 814-21. Hampshire (2)j:he militia, Constitution of sion of the New unorganized which con- 1, XVII) stating: (pt. art. criminal "[i]n sists of the members of the militia who are vicinity prosecutions, trial of facts in the not members of the National Guard or the happen they is so to the secu- where essential Naval Militia.” life, citizen, rity liberty of the and estate of the ought that no or offence to be tried in crime People Right keep 34. "That the have a & to county than that in which it is other Arms; Militia, regulated bear that a well com- committed....” It would be absurd to con- Body posed People, of the of the trained to provision apply only strue this when a Arms, proper is the natural and safe Defence judge agrees the defendant that trial of a free State....” Richmond Antifederal county likely jeop- the case in another 17, Proposed § Rights, Committee Bill re- life, particular liberty ardize that defendant’s Origin Young, printed in The the Second or estate. (2nd 1995) (Golden ed. Oak Books) (hereafter Young), at 390. 33. See also Subcomm. on the Constitu- Senate Cong., Virginia’s proposed Rights Bill of included Judiciary, on The tion of the Committee Right Keep provision: a similar "That the have a Sess, and Bear Arms 2nd (Comm. 1982): Virginia Print "In for- arms; and bear that well- bade its colonists travel unless were militia, regulated composed body required every 'well ... In 1658 it armed' arms, natural, proper, is the trained functioning householder to have a firearm and safe defence of a free state....” 3 Jona- (footnote omitted). within his house.” Id. Elliot, than The Debates Several State May The Militia Act of enacted Adoption Conventions on the Federal ed., 1836). (2d North Car- every defined the militia as "each and Constitution virtually provision, proposed a identical olina free male citizen ... who is able-bodied white Elliot, 4 Jonathan age eighteen years, or shall be of and under Debates in the Several ” age forty-five years required .... Adoption State Conventions on the of the Feder- ed., (2d 1836), good as also did “provide with a each to himself musket al Constitution York, Convention, July good New ... or with a ...” 1 Stat. 271 New York rifle (1792). reprinted Young, supra, 480-88. And, disciplined state, well and trained.35 which, “Mili- “free” one like America but tia,” just Militia,” “well-regulated like like- unlike “kingdoms of Europe,” was not wise was to composed understood be to afraid its people trust to have their own people generally possessed of arms which arms.37 The militia consisted of the people use, they knew how to rather than to bearing refer their own arms when called to to some military separate service, formal group active arms they kept which and and people distinct from the large.36 at hence knew how use. If people plainly views, Madison also shared were these disarmed there could be no militia as is reflected in his otherwise) Federalist No. (well-regulated as it was argued where he that power Congress then expresses understood. That under the proposed constitution proper “[t]o raise understanding of the relationship (art. 1, and support 8,§ Armies” cl. between the Second pream- Amendment’s posed no threat to liberty because ble and its guarantee. substantive As misused, army, such if opposed Kates, “would be Handgun stated Prohibition [by] a the Original Meaning amounting militia to near half a the Second Amendment, million of citizens with arms in their supra note “the [second] hands” noting then advantage “the amendment’s wording, us, so opaque to armed, being which the possess Americans perfect made sense to the Framers: be- people over the every of almost lieving na- other that a militia (composed of the en- tion,” in contrast to “the several kingdoms tire people possessed of individually their Europe” arms) governments where “the are owned was necessary for protec- afraid to people trust the state, The arms.” tion of a they guaranteed free Papers (Rossiter, Federalist at 299 people’s New those arms.” Id. possess Library). American Plainly, saw at Madison 217-18. Similarly, Cooley, GeneRal Principles an armed people as a foundation of the (Little, of Constitutional Law militia provide which would security Brown, 1880; for a 1981 Rothman & Co. re- urged 35. they [standing ”); "It has been ar- selves .... Letter from Tench Coxe necessary provide against are (Feb. 20, 1778), mies] Pennsylvania sudden Gazette reprint- militia, regulated attacks. Would not well ed in The documentary history ratifica- duly discipline, trained afford ample secu- (Mfm.Supp.1976) tion constitution Examiner, rity?" Impartial Virginia ("Who are these militia? are not our- Inde- 27, 1788, February excerpt pendent selves.”') (emphasis original). Chronicle, reprinted Young, supra, at 285. 37. Hamilton in Federalist 29 likewise obvi- regulated militia, disciplined "A well ously being considered militia as com- good objection at all times to the introduc- posed people large," though "the at did he tion govemments-a of that bane of all free not believe very such force could be made Hancock, standing army." Governor John effective. "disciplining He states that all of 28, 1790, January reprinted New York Journal, "futile," the militia” requiring would be more Young, supra, at 731. “a (obviously per year), than month” See, reasonably e.g., "[l]ittle more can In aimed with Debates Convention respect people large reprinted than to have in 3 J. Virginia, Commonwealth ELLIOT, properly equipped; them armed debates in the several state Conven- (3d ed.1937) (statement neglected, tions order to see George that this be not it will Mason, 14, 1788) ("Who necessary June are to assemble them once the militia? or twice They ”); year.” consist now of the whole in the course of a .... Hamilton therefore position proper took the that "the establish- republi- letters the federal from farmer (W. ed.1978) (ascribed can required Bennett ment of the also "the militia" forma- Lee) ("[a] militia, Henry Richard prop- corps when tion of a select of moderate size.” The formed, erly in fact the Papers, supra them- Federalist at 184-85. sum, by give In the Second Amend- “not warranted rejects, as print) intent,” interpretation preamble proper an Second ment’s its full and due keep and right meaning Amendment “that is no need to torture the there only guaranteed to the arms was bear guarantee its substantive into the collec- Militia,” meaning of the “[t]he states sophisticated rights collective rights tive is, undoubtedly people, that the provision plainly model which is so inconsistent with taken, militia must be shall from whom the text, guarantee’s place- its the substantive arms; and keep and bear have the within the bill of and the ment regulation they permission need no wording of the other articles thereof and of this enables the purpose. But law for the original Constitution as whole. mili- well-regulated government to have a tia; implies something for to bear arms History D. keeping; it implies than the mere more 1. Introduction in a learning to handle and use them way those who them that makes Turning history to the of the Second use.” Id. at 271. ready for their efficient adoption, nothing Amendment’s we find thought expressed Much the same was inconsistent with the conclusion that as years later in the more than one hundred ultimately proposed by Congress and rati- Tribe, AmeriCAN following passage from by it fied the states was understood and (3d ed.2000): Constitutional Law intended in accordance with the individual most accurate conclusion “Perhaps the rights model as set out above. with confidence is one can reach 25, 1787, May On the Federal Conven- meaning of the Second the core began meeting Philadelphia tion to craft a populist/republican/fed- Amendment is what would the United States become object is to arm eralism one: Its central primary shortcoming Constitution. ordinary citizens People’ ‘We the so that that the Articles Confederation was participate

can in the collective defense government provided central it too was community and their state. But their that, generally recognized weak. It was directly protect- through does so not although stronger government central ing right of states or other part on the needed, government the central was to collectivities, by against them assertable remain one of limited and enumerated arm the government, pop- the federal only, than powers lest the cure be worse Rather, ulace as see fit. Thus, challenge the disease. was to purpose amendment its central achieves design government strong a federal by government assuring that the federal enough effectively partic- to deal may not individual citizens with- disarm range requiring ular of issues federal con- justification unusually strong out some trol, enabling govern- without the federal authority of the consistent with the tyranny. ment an to become instrument of organize states to their own militias. surprisingly, political Not leaders of that provided That in turn is assurance day proper differed as balance of through right (admittedly recognizing a these concerns. The Federalists favored a part of uncertain on the of indi- scope) strong government. federal The Anti- possess viduals to and use firearms suspicious Federalists were much more and their defense of themselves strong government and fearful of a federal directly homes ... a limits safeguards place action numerous Congress byor the Executive and wanted Id., Branch ...” n.221 at and the states from protect Vol. being tyrannized and oppressed provide “To calling forth the Militia government. federal Con- Federal Union, execute the Laws of the sup- was dominated vention Federalists. press repel Invasions; Insurrections and 17, 1787, September On the Convention To provide for organizing, arming, and completed its work and forwarded the Militia, disciplining, the govern- and for Con- Constitution Confederation ing such may Part of them as be em- gress. ployed in the Service of the United 2. The Anti-Federalists’ Fears States, reserving to the respec- States tively, Appointment Officers, The Constitution alarmed Anti-Federal- Authority and the of training the Militia ists three for reasons relevant to the de- according the discipline prescribed over to meaning by bate of the Second Congress;”. Amendment. First, although proposed federal Const, I, § U.S. art. cl. 8, 15, 16. Con- government appeared to be one of limited gress given was also the power “To raise powers, enumerated the Anti-Federal- Armies.” Id. support § I art. cl. 12. 8,

ists feared that it attempt would someday The states were also forbidden to keep infringe to one people’s or more of the troops Congress. without consent of rights. this, help prevent fundamental To Id. art. I, 10, § cl. 3. the Anti-Federalists wanted the United Constitution, States like most of the state The Anti-Federalists feared that Constitutions, Rights.38 to contain a Bill of government federal would act or fail to act Second, militia, so as to destroy e.g. failure gave the Constitution the feder- government militia,39 al large powers arm the over the mili- disarmament of the mili- tia, allowing tia40, the Congress: prescribe failure training for the useless, Appendix part them, 38. See 1. they may neglect and let them — perish, pretence in a order have of estab- Convention, Henry, Virginia 39. See Patrick lishing standing army.”). a 5, (excerpt reprinted June Young, 1788 in su- 373) (‘Your pra Aristocrotis, given 34 at up note militia is The Government of Nature De- Congress ... of what service would militia An lineated Exact Picture of the New Feder- when, you, probably, you be to most will not [Anti-Federalist satire of the al Constitution [F]or, single 15, have musket position], a in the state? April Federalist (excerpts provided by 34, arms are to Congress, they Young, 329-335) be reprinted supra in note at may may them.”); ("The militia, not furnish Patrick second class or inactive com- Convention, 9, (ex- Virginia Henry, prehends June peasants; all rest of the viz. the 381) cerpt ("We farmers, mechanics, reprinted Young, supra labourers, at etc. which good have one fourth of policy prompt government the arms that would be will to di- sufficient defend ourselves. dangerous It be sarm. would to trust a such militia, arming purchas- hands.”); and the means rabie as this with arms in their arms, ing are taken George from the states Letter from Mason to Thomas Jeffer- 26, paramount powers Congress. Congress (May (excerpt reprinted If son them, they 365-66) ("There will not Young, arm will not supra be armed at at many are all.”); Mason, Convention, George Virginia things very objectionable pro- other Constitution; (excerpt reprinted June Young, posed particularly new the al- 401) ("Under supra pretences, various Authority Con- most over unlimited the Militia of States; gress may neglect provide arming whereby, the several under Colour militia; disarm, disciplining govern- regulating, may the state them or render use- it, Militia, Congress ments cannot do easily govern has an exclu- less the the more sive standing to arm them.... Army; may Should the na- harass the Mili- tia, government tional rigid Regulations, wish to render the militia such and intollerable power to government’s the federal militia42 or issue: select militia41, of a creation (art. I, § army cl. standing maintain a unpleasant service so militia making 12). that the feared The Anti-Federalists standing army demand standing army could government’s federal These concerns over militia.43 or select oppress tyrannize used to by the third exacerbated militia were importance, them of no Burdens, plan that will render People themselves malee as to Mason, purposes of an Abolition.”); answer all the Virgi- the former will George it's desire defenceless.”). Convention, (excerpt army, the latter will be re- while June nia 401) ("There Young, supra at See also note printed in infra. destroying the militia. A ways of various army may perpetually established standing Martin, Baltimore 43. Luther Maryland Jour- detest I abominate their stead. (excerpt reprinted March nal, a stand- there is government, where of a idea 301-302) ("That Young, supra note destroyed may be here ing army. The militia may govern- enable system Constitution] [the practised has been in which by that method power over the wantonly to exercise ment before; is, by parts of the world other militia, number an unreasonable to call out by disarming rendering them useless— permis- any particular without its state from Lenoir, them.”); North Carolina William sion, upon, and continue and to march them 30, Convention, (excerptreprinted July 1788 in in, improper and services—that them remote 496-500) ("When we consid- Young, supra at govern- system enable the same should great Congress, is great powers of there er the useless, discard, totally and to render ment They disarm the militia. can cause of alarm. militia, it re- when would even disarm the armed, they a would be resource they were If way opposing its of the of move them out great oppressions.”). against inconsistent, views, by no means ambitious is proposed really consti- and the case in the is Convention, Henry, Virginia June 41. Patrick government] has tution. ... It federal [the 5, Young, supra reprinted in note (excerpt 1788 clause, also, powers, by by which another 34, ("If [Congress] neglect they or at armed, organized be and the militia can militia, they discipline or arm our to refuse they may be by of which neglect and can do the states neither —this be useless: will insignificant, and utterly rendered useless given Congress.”). exclusively to power being gov- purposes of it suits ambitious when suggestion is the unreason- ernment: —Nor 42. See A Number from the Federal of Letters might improper- government ... that the able III, Novem- Republican, Letter Farmer militia, oppress to ly and better harass 8, Young, supra (reprinted in note ber regular troops, the idea of reconcile them to true, 34, 91) ("it yoemanry of at burthen, to might them of the and who relieve lands, weight prop- of country possess the opposed them less to measures render arms, strong body a erty, possess and are too purpose might disposed adopt for the of be and, therefore, openly of men to be offended— insignificancy reducing state of them to that Federalists], [by they will urged take it is Mason, uselessness.”); George Virginia and themselves, govern care that men who shall Convention, reprinted (excerpt June pay any disrespect opin- dare their will not 401, 402) ("If they Young, supra [Con- at in they easily perceived, if It is have ions. attempt gress] to harass and abuse ever negative upon passing proper their laws them, militia, may and a they abolish raise congress, passage laws or on the relative in If, any standing army at their stead.... armies, they may twenty taxes and time, unjust iniq- have and our rulers should imperceptible thirty -years be means liberties, against designs our uitous them, weight totally deprived of that boasted standing army, a should wish to establish great may a strength: be done in This attempt render the service it, be to first congress, disposed to do if measure fifth, odious to the them- and use of militia modelling one the militia. Should unnecessary sever- subjecting them to eighth part capable bearing of the one arms, men selves— ity confining peace, militia, discipline in time of a as has be made select been law, disgusting them under them martial young proposed, and those the and ardent cry out. us a as to them 'Give community, possessed so much make part of but little ”). standing army!’ put upon property, or no the others all people.44 standing army, American Without a militia to the states and their citi- against government’s defend the federal zens would be defenseless.45 Federalist, Philadelphia 44. See A Democratic government a free standing army are (ex- absolutely incompatible.”). Herald, October Pennsylvania cerpts reprinted Young, supra note at 46) ("[T]he federal rulers are vested with each Philadelphia 45. See Janu- Freeman’s Journal, powers government— of the three essential ary (excerptreprinted Young, supra paramount their are be laws to the laws 211-13) note ("They well know the states. different What then will there be impolicy putting keeping arms in the oppose they their encroachments? Should people, hands of a nervous aat distance from pretend tyrannize ever people, over the government, upon the seat of a they whom army standing every popular their will silence powers granted mean to exercise the in that effort; explain powers it will be theirs to government.... Tyrants placed have never granted which have been to them.... any [T]he composed confidence aon militia of free- more....”); liberty will no Experience men. taught has them II, Philadelphia Centinel forces, standing body regular Independent whenever Gazet- (excerpts reprinted introduced, October completely can always teer, 59) ("A Young, supra standing army edicts, enforcing efficacious in their however regular provision pay contingencies, arbitrary.... There is no instance of strong temptation would afford a to some government being reduced to a confirmed throne, step up man to ambitious into the and tyranny military oppression; without and the power.”); to Philadelphienses seize absolute policy tyrants first of has been to annihilate III, Philadelphia December all other activity means of national and de- Journal, Freeman's (excerpts reprinted Young, fence, supra in at they opposition, when feared and to 139) ("And respect standing army, in it rely solely upon standing troops.”); Luther only up profligate Martin, will be made IV, of idle ruffi- Genuine Baltimore Information ans, prowess chiefly whose will consist of January (excerpt Maryland Gazette, cruelty feats of exercised on their innocent reprinted 221) ("[Wjhen Young, supra in at a ”); Farmer, Exeter, fellow citizens.... A New government deprive wishes to their of citizens Hampshire freedom, January slavery, and reduce gener- them to it Freeman’s Oracle, (excerpts reprinted Young, supra ally makes standing army use a for that of 206) ("An war, army, peace either in or is like purpose, and leaves militia in a the situation caterpillers Egypt; they the and locust bear contemptible possible, as they as least might times, down many all before them —and oppose arbitrary designs sys- its in this —That men, designing engine Constitution], have been used as an give tem general [the we the destroy people, to the for, liberties of a and reduce government every provision it could wish abject slavery.... Organize them the most to and it even invite to the subvert liberties the militia, well, your citizens, arm them and under Provi- give States and their since we them they security.”); dence be a will sufficient A keep up standing the to encrease and a Ploughman, Virginia wish, Winchester army as numerous as it would and Gazette, (reprinted Young, March supra placing power, the militia under its it enable 303) ("And in order to rivet the chains of totally to unorganized, leave the militia undis- us, perpetual slavery upon them; have made a ciplined and even to disarm while the standing army part citizens, an essential of the Federal complaining so far from of this ne- Constitution, produce which the cannot glect, might world even esteem it a favour in the permanent an instance of a more foundation general government, thereby they as would be tyranny upon; the fabrik duties, erect ... military freed from the burthen of and standing army, gives a suspect cause to private occupations plea- left to their own people, sures.”); Convention, that rulers are the afraid of the Henry, Virginia Patrick they may design upon have a them. If their (excerpts reprinted Young, June designs oppressive, army necessaty 370) ("Have is supra at we the means of resist- armies, compleat tyranny; army if the ing disciplined is the when our de- State, fence, strongest militia, force in a put it must be a mili- into the hands of true, taiy government, eternally Congress?”). it is Anti-Federalists’ two Realizing that the wanted Thus, Anti-Federalists (federal arming control of concerns other prior ways in three amended Constitution the militia and maintenance training 1) Bill of a addition to ratification: a army) fear standing boiled down 2) power recognition Rights; standing government’s the federal militias;46 train their to arm and states people, army oppress a defenseless would 3) govern- the federal curtailment 1) that: responded the Federalists’ army. standing to maintain power ment’s and hence people are armed American successfully oppressive resist an could Response Federalist 3. The 2) militia federal standing army;50 for, mini- need powers obviated course, Federalists, wanted of, large standing the likelihood mized ratified. Because to be Constitution army being kept in existence.51 un- only be ratified could Constitution responded to the The Federalists also op- Federalists to forced the changed, this arguing that the states had militia issue prior to ratifi- attempts to alter pose all militia, power to arm but concurrent argued that no Federalists cation. The when the was undermined position for three reasons: rights was needed bill of invited the Federalists to Anti-Federalists 1) beyond purview of the federal it was writing and that put power that state to be one of limited intended government, have necessitated the return to upon powers, infringe and enumerated drawing board another Constitutional 47 2) any enumeration rights; fundamental com- that the Federalists were convention might imply that the avoiding.52 of fundamental mitted to infringe had government federal militia position Federalist mentioned;48 upon those army depended upon standing issues being used to free- people American were being notwithstanding armed people the rights not allow their be they guarantee would did not the that the Constitution armed.53 be infringed.49 Mason, Convention, power away governments. Virginia from the state George June 46. concurrent, exclusive.”); Young, and not Patrick reprinted supra is (excerpt Convention, that, Virginia 402) ("I Henry, June in case the note at wish Young, supra {excerpt reprinted in government neglect general should to arm is, ("The every great object be militia, man discipline be an there should power given up this armed.... When govern- express declaration that state bounds, them.”). Congress without limitation or how might discipline ments arm your be You trust will militia armed? chance; which for sure I am that that nation Appendix part 47. 2. See — in other hands cannot shall trust its liberties Appendix part long gentlemen 48. 3. serious when See exist. If are — power, they suppose a where can concurrent Appendix part it?”). 4. 49. See impolicy to amend be the — responses, e.g., 53.Some of the Federalists' Appendix part 5. 50. See — 46, spoke of Madison's in Federalist James people against defending the militia as Appendix part 51. See 6.— tyranny. Opponents of the individual federal Madison, Convention, that these references to the Virginia June view assert 52. James response reprinted Young, supra that the Federalists' (excerpt militia indicate armed, 403) ("I being depended but not on the note cannot conceive that Constitution, having power to giving general govern- states arm on the militia, that the Anti-Federal- power arming militia. While it is true takes ment the State Ratifications dination to and governed by the civil power. Congress forwarded the Constitution to September

the states on 1787. State began considering 11. That the power conventions the Consti- of organizing, arm- year. 28, 1788, (the tution By April ing, later and disciplining the militia Delaware, Jersey, New Georgia, manner of disciplining Connecti- the militia to be Maryland cut and had ratified the Consti- prescribed by Congress) remain with tution proposing any states, without additions individual Congress and that it. changes sign The first trouble shall not authority have to call or march a state convention Pennsylvania state, of the militia out of their own December of 1787. without consent of such state and length such time as such state Pennsylvania

a. agree.” shall Pennsylvania convention, In the Documentary History 2 op the Ratifi- Federalists outnumbered Anti-Feder- (Merrill 623-24 cation of the Constitution alists about two surprisingly, to one. Not Jensen, ed.1976). Note that “bear arms” then, 12, 1787, on Pennsyl- December clearly pertains to private, civilian wearing vania convention ratified the Constitution carrying arms and by a vote of 46 to 23. The convention did organize, state to arm and discipline the propose any changes to the Constitu- separate section, militia is in a indicating However, tion. the disenchanted Anti- that the Anti-Federalists viewed is- these Federalists, known as Pennsylvania sues as distinct. Minority, explained have b. Massachusetts agreed to the Constitution if it had been amended principles, to reflect fourteen Massachusetts ratified the Constitution among 7, 1788, which following: February were the a vote of 187 to 168. Although proposed the convention

“7. the people That have a amendments, nine none of them rele- has bear arms for defense of themselves vance to the issues with which state, we and their own or the United However, concerned. during the Massa- States, or for the purpose killing convention, pro- chusetts Samuel Adams game; and no law shall passed posed following the amendments: disarming them, people any the or of committed, unless for crimes or real “And that the said Constitution be never individuals; danger public from injury of Congress construed to authorize to in- and as standing armies in the time of fringe just liberty the press, the peace dangerous conscience; are to liberty, the prevent or to ought kept up; States, and that people the the of the United who are military kept citizens, shall be under peaceable strict subor- from keeping their concession, ists against desired this the Second enterprises the states as a "barrier the ambition”, provide did not say it. We think but does not that the state message (or governments Madison’s in Federalist 46 is given) power clear: had worry were clearly Anti-Federalists not to about arm militia. Federalist 46 de- tyranny comprised pends, federal because large part, those who people on the American tyranny being respect, militia could resist such since the In this armed. ra- Madison’s people the American were armed. substantially Federalist tionale 46 in Federalist speaks significance about gov- of the same as that of the Second Amendment which trusting ernment people year and of he would over a later. arms craft armies, arms; XII. standing Congress or to raise shall never disarm

own citizen, necessary for unless as are or have been the defense such unless when States, in actual of some one or rebellion.” the United them; prevent people or to more of Elliot, Jonathan Debates petitioning, peaceable and or- from Adop- Several State Conventions manner, derly legislature, the federal (2d tion of the Federal Constitution subject or to grievances; a redress of 1836). ed., Hampshire sought pro- New people to unreasonable searches and right tect individual of all citizens to persons, papers pos- seizures their and, separately, have arms to limit the sessions.” power government of the federal to main- standing army. tain a large Debates of Massaohusetts Convention 1856). 86-87, (Boston, of This is e.Virginia another indication that the Anti-Federal- Virginia On June conven- all protection ists desired tion ratified the Constitution a vote of peaceful keep citizens arms as well as proposed 89 to 79. The convention a bill gov- limitation on the of the federal twenty rights containing separate provi- large ernment to maintain a standing and, section, separate proposed sions army. twenty amendments Constitution. part Virginia’s pro- seventeenth c.South Carolina posed Rights Bill of ninth The South Carolina Convention ratified parts proposed eleventh of its amendments 28, 1788, May stating the Constitution on to the Constitution were as follows: understandings two and proposing two Rights [Bill section.] “ amendments, none of which are relevant to 17th. That the have a the issues before us. arms; well-regulat- and bear that a militia,

ed composed body of the arms, Hampshire d.New proper, trained is the natural, state; and safe defence of a free 22, 1788, adjourning After on February armies, standing in time of peace, Constitution, rejection to avoid New dangerous liberty, and therefore Hampshire ratified the Constitution on avoided, ought to be as far as the cir- June a vote of 57 to 47. The protection cumstances and of the com- Hampshire proposed New convention admit; that, munity cases, will in all amendments, twelve the first nine of which military should be under strict sub- are identical to Massachusetts’. New to, governed ordination by, the civil Hampshire’s proposed Amendments 10 power. and 12 were follows: [Amendments to the Constitution sec- standing army “X. That no shall be tion.] kept in up peace, time unless with the standing army, regular 9th. That no or consent of three-fourths the members raised, troops, kept up, shall be in of each Congress; branch of nor shall peace, time of without the consent of two soldiers, peace, quartered in time of present, thirds of the members both houses, upon private without the consent houses. of the owners. respectively 11th. That each state shall power provide organiz-

have the to militia, ing, arming, disciplining and its own mi- including body of the people litia, arms, Congress capable bearing whensoever shall omit or proper, is the natural, neglect provide for the same. That and safe defence of a free state. subject the militia shall not be to martial law, service, except when in actual armies, standing That peace, time of war, invasion, rebellion; time and dangerous liberty, ought and not

when in the actual service of the kept up, except to be in cases of necessi- States, subject only United shall be ty; and that at all military times the fines, penalties, punishments, such and should be under strict subordination to as shall be directed or inflicted power. the civil laws of state.” its own [Amendments to the Constitution sec- Elliot, The Jonathan Debates tion.] Adop- SeveRal State Conventions on the That no standing army regular troops tion of the Federal Constitution raised, shall be or kept up, in time of (2d 1836). ed., rights provision, bill peace, without the consent of two thirds stating “[t]hat have after representatives senators and arms,” keep and bear goes on to present in each house.” general, philosophical make observations Elliot, 1 Jonathan The Debates the militia standing about armies. Adop- Several State Conventions However, general, philosophical these ob- tion of the Federal Constitution given legal servations are their effectua- (2d ed., 1836). 1) philo- Note that: through separate, tion specific provisions sophical declaration concerning prefer- apart from Bill Rights. Virgi- militia, ability of a which follows the state- nia convention realized that statements in “[t]hat ment have a right proposed Bill of Rights that militias arms,” bear is not effectuated are good standing armies are bad fell grant amendments section adding short of power of the states militia; power to the states maintain a or subtracting from the of the fed- there is a separate clause in the government. eral In separate and dis- Rights regarding Declaration of section section, tinct amendments the states were standing armies which is effectuated explicitly given militia powers and the fed- separate proposed amendment to the Con- government eral was forbidden to main- example stitution. This is another standing army tain a specific unless other philosophical declarations alone were con- criteria were satisfied. sidered insufficient to subtract from the government’s power federal or to add to f. New York power. the states’ 26, 1788, July On New York ratified the by a Constitution vote of 30 to 27. New g. North Carolina incorporated York an extensive Declara- 1, 1788, August On North Carolina re- Rights thirty-three tion of proposed ratify fused to the Constitution until a bill amendments to the Constitution into its and other amendments were add- ratification. The portions relevant of each ed. The North Carolina convention de- are: Rights manded the same Bill of Rights

[Declaration of section.] proposed by Virginia. amendments as It 21, 1789, “That the a right have was not until November after the arms; and bear that a well-regulated Rights by Bill of was forwarded the First states, power, namely army al that no shall be to the North Car- Congress during peacetime. maintained the Constitution finally ratified olina 194-77. vote of Proposal of Second Amendment By required mid nine states h. Rhode Island Constitution, had ratified the and was ratify did not the Consti- Rhode Island major won a clear the Federalists had 29, 1790, and then May until tution victory. spring But of incorporated Island 34-32. Rhode vote of per- Anti-Federalists had succeeded in into its ratification and rights of a bill suading many rights that a of bill twenty-one amendments to the proposed absolutely necessary. Some Anti-Federal- apposite portions Constitution. additional, argue ists did continue to each are: Constitution, changes structural to the but Rights section.] [Declaration primarily most were concerned with a bill time, rights. At the same while some That have a “XVII. reject any Federalists continued to arms; well-regulat- that a keep and bear Constitution, changes to the most softened militia, including body peo- ed opposition rights, their to a bill of mindful arms, ple capable bearing prop- is the strong public support for it and er, natural, defence a free and safe rights aware that a bill of would not mate- state; militia shall not be that the sub- rially plan government they affect the law, in ject except to martial time of diligently had worked so to implement. insurrection; war, rebellion, or George Washington, Inaugu- See President armies, standing peace, in time of are Address, April (excerpt ral re- liberty, ought dangerous to not to 642) printed Young, supra in note at except in kept up, necessity; be cases of (“I myself you carefully assure that whilst that, times, military all should every might avoid alteration which endan- be under strict subordination to the civil ger an the benefits of united and effective that, in power; peace, time of no soldier government, ought or which to await the in ought quartered to be house with- experience; future lessons of a reverence owner, out the consent of the freemen, for the characteristic only by the magistrates, time of war civil regard and a for the public harmony, will in such manner as the law directs. sufficiently your influence deliberations on [Amendments Constitution sec- question how far the former can be tion.] fortified, impregnably more or the latter armies, standing XII. As time of safely advantageously be promoted.”); peace, dangerous liberty, and Letter from Charles Smith Tench Coxe kept up, not to ought except be cases (October 1788) (excerpt reprinted in as, times, necessity, at all (“It seems, Young, supra note military under should be strict subordi- therefore, to wish the moderate that, therefore, power, nation to the civil all parties reasonable men of standing army no or regular troops shall necessary explanations some should take kept up peace.” raised time of place, quiet order to the minds of our citizens, Id. at 335-36. Note how even the amend- dissenting fellow and to introduce regarding standing ment harmony throughout armies contains union and the state. philosophical two get- subject ought declarations before Attention to this to be con- ting to duty upon the substantive restriction on feder- our first sidered as incumbent Thus, Representatives.”)- federal as there been appearances touched—From there hard-fought political great sometimes is after a will be no in difficulty obtaining rea- struggle, combatants, most of the for the sonable ones. It depend will however en- good tirely country, ground. temper federalists, middle .on the sought who predominate branches, as much in both as Federalist James ran for a Madison seat could be wished. Even in this State [Vir- Congress, in the First and because of the ginia], notwithstanding the violence of its strong public support rights for a bill of symptoms, antifederal three of rep- its six clarified his own support for it: resentatives at least will be zealous friends district, my “The offer of services to the Constitution, to the and it is not improba- rests on the following grounds: —That ble that a fourth will be of the same de- although always / conceived the consti- scription.”). The Anti-Federalists sensed tution might improved, yet I never although that the tide had turned their it, stands, could see in as it the dangers way as to alterations that would secure which have many respectable alarmed liberty, individual the prospects for other citizens; that I held it my duty there- changes to the Constitution were dim. See fore, whilst the constitution remained Letter from Henry Richard Lee to Patrick unratified, and it necessary to unite 1789) Henry (May (excerpt reprinted opinions, various prej- interests and 644)(“I Young, supra think, note at states, udices of the different in some see, I from what hear and many that plan, one to oppose every previous succeed, our amendments will my but amendment, opening as a door for end- hopes strong may such as effectu- dangerous less and among contentions ally secure civil liberty will not be re- states, giving opportunity an to fused.”). the secret enemies of the union to pro-

mote its dissolution:—That change a. Legislative History produced by circumstances the secure 8, 1789, On June Virginia Congressman establishment plan proposed, proposed James Madison several altera- leaves me free to such espouse amend- tions to the Constitution the First Con- will, in ments as satisfactory most gress. House, In his address Madi- manner, guard rights, essential and will explained son in proposing his rationale render certain pow- vexatious abuses of changes: impossible er ...” wish, “I among other why reasons some- Madison, James a letter Extract thing done, should be those who from MADISON, Hon. jun. JAMES to his friendly have been adoption county, Fredericksburg Vir- may this constitution opportu- have the friend January ginia (reprinted nity proving op- to those who were HeRAld, 609). Young, supra note posed to it sincerely were as Federalists ended up majority with liberty devoted to Republican and a Gov- both the House and the Senate. But ernment, as as charged those them who the eventual adoption a bill of wishing of this consti- adoption shows, many open as Federalists were tution in order lay the foundation of of rights bill Madison aristocracy James himself an It will be a despotism. was. See Letter from thing extinguish James Madison to desirable from the 1789) (April Edmund Pendleton (excerpt every bosom of member of the communi- reprinted in Young, supra ty, note any apprehension that there are (“The subject yet amendments has not among countrymen those his who wish

246 4, liberty following 3 and them of the for which between its Clauses deprive others): honorably (among clause

they valiantly fought and if there are amendments de- And bled. keep “The of the injure not of such nature as will sired a well infringed; bear arms shall be constitution, they ingraft- can be regulated being armed and well militia give ed so as to satisfaction to the doubt- security country; of a free but best fellow-citizens, ing part of our person religiously scrupulous no of bear of the Federal will friends Government ing compelled be to render arms shall spirit evince that of deference and con- military person.” service for which have hitherto cession I, Id. at 654-55. Article 9 contains Section distinguished. been nothing upon power of but restrictions government; and its the federal Clauses unwilling I to see a door should be (ha- and 3 relate to individual for a opened re-consideration of the corpus, post beas bill of attainder and ex whole structure of the Government —for facto). principles a re-consideration of the proposal eventually Madison’s sub- powers given;

the substance of the be- mitted to a House committee of eleven doubt, I cause if such a door were members, of which was one. Madison very likely stop we should opened, be report July That committee on issued its point at that which would be safe to the 28, 1789. The clause that would become But I Government itself. do wish to see the Second Amendment then read: consider, opened a door so far as to militia, regulated “A composed well incorporate provisions those for the se- body of people, being the best curity rights, against which I believe state, security of a free of the objection no serious has been made and bear arms shall not any class of our constituents: such as infringed, person religiously but no likely would be to meet with the concur- Houses, scrupulous compelled shall be to bear rence of two-thirds of both Representatives, arms.” House of Pro- approbation with the of three-fourths of Amendments, 28, ceedings July Legislatures.” the State ( n reprinted Young, supra 34, note Madison, Representatives, James House of 680-82). (excerpt reprinted Young, June 651-53). Thus, supra pro- philosophical note Madison declaration was insert, I, posed to precede Article Section moved to guaran- substantive proposal This was one of several clauses which Madison’s called for what became proposal, ("fourthly”) Madison’s section, in its fourth (together the Tenth Amendment to be with a I, 9,§ called for to inserted in art. separation powers provision) in a new Arti- between clauses 3 and the others to be VII, existing cle VII to be Article renum- being provisions inserted there all which bered Article VIII. First, Third, Fourth, eventually became the I, proposed Madison also to amend Art. Eighth portions and Ninth Amendments and I, (number representatives), § cl. 3 Art. of the Fifth and Sixth Amendments. (compensation representatives), § cl. 1 portions The other of what became the Fifth I, (to prohibit deny- § and Art. states from Amendments, and Sixth as well what be- conscience, ing equal rights of freedom of the Amendment, ' came the Seventh Madison's cases). press jury trial in criminal proposal would have as to Article additions III, § 2. What, sir, “composed body tee and use of a militia? It is to people” just was added after “militia.” prevent the a standing establishment of army, Now, liberty. the bane of it must began

The House its consideration of evident, that, provision, under this what would become the Amend- Second together powers, with their 17, other Con- August Congressman ment on gress measures, could take such Gerry religiously moved to strike the scru- militia, pulous exemption. Repre- respect House of See to as to amake stand- (ex- sentatives, Debate, August ing army necessary. govern- Whenever cerpt reprinted Young, supra in note ments mean to rights invade the 695-99). This motion was defeated liberties of the people, they always at- 24-22; however, language vote of this militia, tempt destroy to in order to dropped by would later be the Senate. army raise an upon their ruins.” Opponents of the rights individual model Gerry Id. at 695-96. by pro- concluded in hope appearance find the initial of the “[n]ow, claiming, give if we a discretionary religiously scrupulous exemption and com- power to duty exclude those from militia by Congressman Gerry ments. made in religious who have scruples, may we as attempting to excise it. They argue that well provision make no on this head.”55 military because “bear arms” has a conno- urged The inference is that only pur- clause, religiously scrupulous tation in the pose guarantee of the substantive was to necessarily meaning carries the same secure the of militia members to bear guarantee. the substantive This construc- military arms in a interpre- context. This told, tion supported, by Gerry’s is we are Gerry’s tation of appears statements some- objection. Gerry feared that the federal Gerry’s what strained. think that We government would use the clause to de- comments opinion manifested his that: stroy the militia by declaring large num- militia, it takes a well regulated not the and, people religiously scrupulous ber of private firearms, mere possession of therefore, ineligible for militia service. standing army; obviate the need for a pave way This would for oppression by 2) an populace armed offers much less government’s the federal standing army. protection against a standing army than a it, “This declaration of I rights, take regulated If Gerry well militia. saw people against intended to secure the conflict between the amendment’s substan- the mal-administration of the Govern- guarantee tive and the destruction of the ment; that, if we could suppose all supposedly militia which was enabled cases, rights would be clause, religiously scrupulous he did to, guards attended the occasion for fact, say Gerry’s objection not In so. as- Now, kind would be removed. I am sir, sumes the amendment does not in- apprehensive, that this clause would power crease state over the militia and give opportunity an preamble philosophical is but a destroy the constitution itself. They necessity can declare who are reli- declaration as to the of a well those giously scrupulous, prevent regulated them militia that nothing does dis- I, bearing § from arms. Gerry turb Art. cl. to which taken, Congress- exemptions 55. Before the close vote service and that such should be legislature. man Benson offered another rationale for left to the "benevolence” of the clause, Debates, striking actually Representatives, August and it was who he House of (excerpt reprinted Young, supra moved strike. Benson believed there was note 697). exempted military no natural to be from Congressman Scott’s state support, the source of the referring to as must be rights or ment, de- either the states’ government federal power of the Gerry’s concern was di- models. collective stroy sophisticated the militia. was, standing army; concerned, Gerry aof the creation was not rected to Scott any worry that the use the express government he does that the federal rolls of the militia purging feared clause as a ruse to religiously scrupulous government federal would enable militia service. everyone from exclude firearms, no privately owned confiscate many individual that too Scott was worried guarantee the substantive doubt because avail themselves of the Americans would just that not those people, to all the applies and that this would protection clause’s the militia. might comprise time given at a that the militia to so weakened cause understood, Gerry’s remarks are Properly would have no government the federal with the individual not inconsistent army. It standing to maintain a choice but Amendment. view of the Second exactly where found vio is not clear Scott keep member of the arms. people’s right was not the lation of the to Gerry express to concern over a militia both leads Congress dependable First The lack of scrupulous clause. Three religiously the violation and neces hypothetical to Scott’s 20, 1789, later, Congress- August army. It days standing to a is sitates recourse it well. complained found, of as man Scott in the amend possible that Scott declaration, some sort philosophical ment’s objected “Mr. clause Scott from a amendment, people of the to be free person religiously right ‘No sixth case, any cryptic In this compelled standing army.56 shall be bear scrupulous support if passage plainly this becomes does not lend arms.’ He observed constitution, persons Amendment models. such Second part of for their ser- upon only change can neither be called that resulted from this vices, equivalent can an be demand- nor was the addition of the words discussion ed; attended with still further it is also “in at the end of the amendment person” difficulties, mentioned, for a militia can never be and, religiously the entire upon. This would lead to the depended scrupulous was later deleted clause in violation of another article the consti- Senate. tution, secures to the which pro- Congressman repeatedly Burke arms, and in this case keeping that a clause be added to the posed standing a recourse must be had to required amendment would have army.” consent of two-thirds of both houses of Debates, Au Representatives, House of standing army to maintain a Congress 20, (excerpt reprinted, Young, gust peace. proposal time of This was defeated 703).

supra Congressman note at by margin almost two to one. House clause, in striking Boudinot opposed Debates, Representatives, August part imply action would because such supra (excerpt reprinted Young, all government going “compel federal 697-98). note Id. The House its citizens to bear arms.” 24, 1789, complet- the House person” August ended “in to the end of On up adding proposed on the amendments meaningful ed its work clause. Id. We find no standing army thinking, were defeated in both If Scott was he tain this was what shown, wrong. proposals As will be the House and the Senate. government’s power limit to main- the federal House, At and bear arms”. Id. Like and forwarded them to the Senate. rejected proposed Senate amendment time, read: the amendment required that would have the consent of militia, regulated composed “A well Congress two-thirds of both houses of body people, being best standing army maintain a in time of peace. state, security a free September Id. The Senate on 1789 also arms, shall and bear adopt refused to an amendment infringed, religiously but no one scru- given power have the states to arm and arms, pulous bearing shall be com- train their militias.57 pelled military per- to render service significant The most Senate action is the son.” rejection of the amendment that would Representatives, Proceedings, House of granted have of the states to August (excerpt reprinted is, arm and train their own militias. This 707). Young, supra note course, the precise effect the states’ Senate, which had the House action rights model attributes to the Second August through Septem- it from before Amendment. Proponents of that model 1) changes: ber three the made argue rejection that of that amend- “composed body peo- of the of the words simply ment indicates that this concern stricken; ple” were the words “the addressed, already reject- was i.e. that the the”; by replaced “necessary best” were to ed amendment would have been mere sur- 3) the religiously scrupulous and entire plusage. highly implausible, partic- This is Complete clause was stricken. See The ularly given the Second Amendment’s Rights (Neil ed., Cogan, 173-76 H. Bill of within Bill placement Rights, its 1997). The were conduct- Senate debates “the right people” language of the identical secret, no ed so there is direct evidence to that of the First and Fourth Amend- why changes these were made. The ments, and its lack of reference to the rejected a proposed states, Senate amendment to power rights or of the all as con- add the words “for the common defense” trasted the direct and explicit to state just right power rejected after “the keep language to amend- rejected preexistent powers, 57. This amendment read: states of their militia such powers Id. 22-23. remained. 5 L.Ed. at state, respectively, “That each shall have majority rely upon did not or even refer to the power provide organizing, arming, to Second Amendment. militia, disciplining, and its own whensoever only mention of the Second Amend- Congress neglect provide shall omit or to dissent, by Story ment was in his Justice same; subject that the militia shall not be wherein he observed that Second Amend- law, service, except to martial when in actual probably "any important ment did not have war, invasion, rebellion; in time of and bearing” question on the of whether states when not in the service actual of the United arm, power organize, discipline had to States, and fines, subject only shall be to such their militias. Id. 5 L.Ed. at 31. penalties, punishments, as shall be direct- likely It that if seems the Second Amend- ed or inflicted the laws of its own state.” grant only ment was intended the states Journal of the First Session of the Senate arm, power organize, D.C.1820). concurrent and disci- (Washington, militias, Moore, pline Supreme their Court would In Houston v. U.S. [5 Wheat.] relied, (1820), part, upon Supreme have at least in the Second 5 L.Ed. 19 Court held arm, holding. happened, power organize, Amendment for its As it that states retain the only discipline provided mention the Second Amendment their militias that the repugnant pointing exercise the au- the dissent in out the Second thereof thority probable to the of the Union. The Court reasoned that Amendment's irrelevance powers because the Constitution failed to divest the slate militia issue. and, therefore, pertains militia” Moreover, explana- lect surplusage ment. However, guard. in the state conven- modern national that to our ignores tion also arms was keep and bear historical evi- there is an abundance of tions the Rights section of Bill of always in the that the Anti-Federalists dence indicates power the state changes, while proposed every idea of a select militia abhorred the always in a militia was train the arm and Clearly, standing army.58 as much as a bit separate at least a separate section believed if the Anti-Federalists article. any support for the amendment offered militia, only recog- formation of select significance of the surprisingly,

Not members of the select nized the rejections is alterations or other Senate’s arms while on militia to and bear argued It could be question. open vociferously duty, they would have active “composed the words striking it. It must be remembered opposed supports sophisti- body people” submitting amendments goal “militia” in the entire cated collective view infuriate, pacify, not the Anti-Fed- really means “se- was to the Second omitted) 354-55) (footnote Young, supra following: supra, and the 58. See note Convention, ("First, Smilie, ought to secure a Pennsylvania De- constitution John militia, genuine guard against reprinted Young, a select (excerpts cember 145-46) (“I always kept object providing that the militia shall to the supra note armed, organized, disciplined, Congress the militia and to well over include, according past general Congress may give keep standing army.... states, will, fact, usuage capable of bear- be a of the all men us a select militia which arms; ing regulations tending gener- a and that all standing army-or Congress, afraid of militia, general militia useless and de- may say shall be no militia at render this al there formed, fenceless, by establishing corps peo- select of mili- is all. When select militia men, tia, disarmed.”); military may Centinel or distinct bodies of ple general be IX, having permanent and attachments Philadelphia Janu- interests Independent Gazetteer, But, community say Young, supra to be avoided.... ary (excerpt reprinted in the omitted) ("I 192) (footnote jealous gentlemen, general ever militia are for the was militia, part private consisting infantry employed at home in their and most the select concerns, out, horse, city and cannot well be called or be troops of instituted in this counties,.... depended upon; that we must have a select Are not these some of it, militia; is, particular I corps provided suppress the first efforts of that as understand men, freedom, corps young spirit of the or bodies of and of men and to check the home, powerful particularly regular sufficiently mili- who have but little to do until a and measure, disciplined tary to rivet armed and in some force shall be embodied nation.”); public expence, always ready slavery A and to take chains of on a deluded corps, regu- January These not much unlike Countryman, field. Journal, New York Young, troops, produce reprinted supra at lar will ever an inattention to (excerpt militia; (“Should consequence sufficiently general and has the new constitution been, be, rights always must the sub- by a bill of ... ever and that corrected substantial men, having property, judicial and separating legislative, and execu- stantial families arms, generally confining without know- departments entirely, tive will without them, defenceless; ing government proper objects; the use of where- national to its as, but, by admitting standing army preserve liberty, it is essential that the no means militia, always possess peace, body a select which whole in time of nor alike, has, arms, last, taught especially and be when is a a certain head scheme that them; time, with, nothing young, teeming how to use nor does it follow some been this, promiscuously go other ... that all must into else but an artful introduction to the from every imagine might happy actual service on occasion. The mind I we become a militia, respectable be influ- people.”); that aims at a select must Additional Number An truly anti-republican princi- enced of Letters from the Federal Farmer .”). XVIII, ple... May (reprinted Letter Republican, or, obligations, relatedly, the words the clause suggests This eralists. minor, body people” relatively of the were dealt with a “composed collateral unnecessary surplusage. stricken matter which was not worth the controver- sy generated confusion it had and/or of “best” with “neces- replacement Or, generate. might could the Senate sim- strengthens philosophical sary to the” (as Benson, ply Congressman have felt did militia. support for a As declaration’s supra) see note 55 would be better this rejection standing army amendments left to the wisdom and discretion of a Senate, the House and as well as subse- Congress. future show, history, even this bolder state- quent to limit the ment did not serve approved The House the Senate version government large to maintain a the federal amendment, Congress forward- bearing standing army. Probably only along ed it to the states with the rest of before this change has on the task the Bill of Rights September 1789.59 sophisticated Court is that it makes the model’s contention that rights collective b. Political Discourse really guard “militia” means national At legislative the same time the above questionable. militia” even more “select made, history being prominent Ameri- accept- Anti-Federalists would never have writing newspapers cans were ed that a select militia was the best securi- writings provide each other. These (or to) ty anything a threat “a free but (individual insight some into the nature state,” necessary security much less collective) of the Amendment. Second “a free state.” Grayson ex- Anti-Federalist William model Opponents the individual pressed Anti-Federalist concern fellow claim the Senate refused to add “for the Henry Patrick that the amendments common defense” after the amendment’s those, approved that would be like guarantee because those words substantive Madison’s, recognize rights: individual unnecessary surplusage. were Given the which, history, al- amendment’s text and my exceedingly sorry “I am it is out of exception, the indi- support most without any flattering power you to hold out to view, rights vidual we believe it much amend- expectations the score of likely rejected this more the Senate ments; it to me that both hous- appears potentially posed it language because of feder- wholly composed es are almost contracting risk of an interpretation alists; those who call themselves Antis guarantee. substantive extremely scarcely lukewarm as are so appellation: gentle- to deserve the Some Finally, perhaps the least relevant Sen- policy men here from motives of have religiously change ate is deletion amendments contemplation in to effect scrupulous may clause. This well have alone, liberty personal which shall effect been because the Senate felt judiciary, leaving great points sufficiently germane not to an clause was c, they taxation to stand as purpose core was to direct & amendment whose string rights Monday of individuals are.... Last of state the affirmative potential presented their amendments were to the low- opposed as to limitations on Rights, although at the Bill of 59. Sent to the states the same time were was ratified with I, 2, (at ultimately arguably) § proposed to Art. cl. 3 the latter was least amendments 6, I, (number Twenty-seventh § Amendment in representatives) of and Art. cl. ratified as the May (compensation representatives). Neither House; altogether respected appeared these ments thereon which the Fed- er personal liberty....” Young, supra eral Gazette. See note at responded: 672. Madison Grayson to Patrick Letter from William 1789) (June 12, (excerpt reprinted Henry “Accept my acknowledgments your 668-69). Young, supra note at favor printed of the 18th. instant. The pleased Federalist Fisher Ames was already remarks inclosed in it are I find primarily that Madison’s amendments con- in the Gazettes here. It is much to be rights. cerned noncontroversial individual part wished that the discon[ten]ted inserted, “Mr. Madison has in his our fellow could Citizens be reconciled amendments, representa- the increase of opposed, Government have tives, having each State two at least. possible unaccepta- means as little as conscience, bearing approve ble to those who the Constitu- arms, changing government, present tion its form. amend- people. declared to be inherent proposed Reps, ments in the H. of had press, Freedom the too. There is a object view; this twofold besides the prodigious great dose of medicine. But avoiding third one of all controvertible it will stimulate the stomach little as points might which endanger the assent hasty-pudding. It is rather food than of each Congs branch of % % Am physic. immense mass of [sic] Legislatures. State How far the sweet and other and roots herbs experiment may in any succeed of these drink.” diet respects, wholly uncertain. It will Letter from Fisher George Ames to Rich- greatly by explana- however be favored (June 1789) ards Minot re- (excerpt tory strictures of a healing tendency, 668). printed Young, supra note already is therefore indebted to the Coxe, Federalist Tench in a re- widely co-operation your pen.” article, published described what would be- Letter from James Madison to Tench Coxe come the way: Second Amendment (June (excerpt reprinted in rulers, having duty “As civil their 673-74). Young, supra Thus, note people, duly them, may before at- statements, consistent with his other Madi- tempt tyrannize, military as the son seems to have endorsed Coxe’s individ- forces which shall occasionally raised ual rights explanation of what would be- country, to defend our might pervert come the Second Amendment. Note that injury their of their fellow- Coxe made no philosophical mention of the citizens, are confirmed regarding declaration regulated well mi- next article in keep their to and litia, but provision’s referred to the private bear their arms.” guarantee substantive and also that Coxe’s A Pennsylvanian Coxe], [Federalist Tench “private reference to essentially arms” is part REMARKS first inconsistent with both the rights states’ AMENDMENTS to the FEDERAL CON- sophisticated rights collective models. STITUTION, moved on the 8th instant in Opponents Representatives, rights the House of the individual Philadelphia view dispute that June Madison’s letter was an en- (excerpt Gazette, FedeRal 671). reprinted Young, supra explanation dorsement of Coxe’s note at of the Madison, amendments, That day, same claiming Coxe wrote to that Madison disa- discussing public greed reaction to with explanation Madison’s Coxe’s of the proposed words, amendments and his own com- of conscience. In other they say keep Common and Extraordi- arms just being polite to Coxe was that Madison for nary Occations such as to secure our- explain the amendments attempt to for his ioild Beast and also to agreed against with all of selves may not have De- problems by fowling amuse us our took. Two positions Coxe Enemy[.] no evidence that against are that there is Common this view fence explana- disagreed with Coxe’s know to learn the Use of arms is anybody [Y]ou and that forighn us from a foe tion of Second all that can Save us[,] speech supporting for his to for if may attempt Madison’s notes that subdue they “relate keep up the amendments indicate the Use arms and become we Madison, private rights”. James with them we Shall all- acquainted 1st well speech Congress supporting way Letter from Fisher A well est of the Bill whole[.] 1789) (July {excerpt re- ards Minot may know that we the secured 679). 34, at Young, supra in note printed Every in De- may far we Proceade how viewed L. Smith Congressman will no William then their be partment[,] [sic] individual Rights recognizing Bill of Dispute rulersf.] between government. not the structure rights, may that be secured [I]n may “The Committee amendmts. have re- “It well be that remembered some, ported thought which are following inoffen- ‘amendments’ to the new con- may good & do States, sive to federalists some stitution for these United were other side: N. only Car[olin]a. on the introduced to the convention of this com- pretext wants some to come into present monwealth its Lieutenant Union, Governor, may afford pretext by & we that patriot, venerable SAM- recommending a few amendments. UEL ADAMS.—It was his misfortune misconceived, to have been and the appears a disposition There to be in our proposition accordingly was with- some, agree house to which will more drawn —lest the business of the conven- effectually private rights, secure without (the tion session of which was then affecting the structure of Govt.” drawing period) might to a unexpect- be Letter from William L. Smith to Edward edly protracted. His enemies tri- 9,1789) Rutledge (August (ea;cerptreprint- umphed exceedingly, and affected to 798) (em- ed Young, supra in note at represent proposal his as not an added). phasis artful attempt prevent the constitu- Pennsylvania Congressman Frederick A. being adopted state, tion in this but as Muhlenberg Rights believed the Bill of an unnecessary improper alteration placate “our Minority Pennsylva- system, of a which did not admit of nia.” improvements. To the honor of this sorry “Altho’ I am that so much Time gentlemen’s penetration, just and of his spent has been in this Business Bill [the way of thinking on important sub- Rights], and would much rather have ject, every one of his intended altera- Session, had it postponed the next yet tions, one, but already have been report- as it now is done I hope it tuill be ed the committee of the House of State, satisfactory to our and as it takes Representatives Congress, and most principal Amendments which our probably will adopted by the federal Heart, Minority had so much at I hope legislature. justice In therefore to that may restore Harmony unanimity & long tried Republican, and his numerous ” amongst our fellow Citizens.... friends, you gentlemen, requested re-publish alterations, his intended Letter from Frederick A. Muhlenberg to paper the same pub- exhibits to the 1789) Benjamin (August Rush (excerpt lic, the amendments which the commit- reprinted in Young, supra note tee adopted, have order that may added). (emphasis Recall that the Penn- compared together.” sylvania Minority proposed what was in- disputably an individual right to keep and Letter from Mssrs. Adams & Nourse to bear arms. the Editor of the Boston Independent Some Independent upset Chronicle, Anti-Federalists were Philadelphia Gaz- Federalist James Madison getting all August (reprinted etteeR, the credit for proposing Bill Rights. 701-702). Young, supra note This is They believed much of this credit was significant due because Adams’ amendments Samuel Adams. Recall that Adams unsuc- prohibited the Constitution from ever be- cessfully proposed his own set of amend- ing construed to “prevent the people of the ments to the Massachusetts Convention United peaceable citizens, States who are (and was much criticized making from keeping their own arms.” Id. This attempt). language is not at all susceptible to the arms, infringed, c.’ It is collective shall not be & sophisticated states’ only that this article makes remarkable rights views. observation, regulated ‘that a well supported the Many Anti-Federalists militia, composed body of the of the that it fell notwithstanding Rights, Bill of security the best of a free people, is they delivering what had far short of state;’ ordain, it does not or constitution- at conventions. But fought for the state for, ally provide the establishment was en- one famous Anti-Federalist least a one. The absolute command such amendments did not alter raged that the Congress vested other sections the federal power between balance militia, over the are not the least particularly as to governments, and state mili- abridged by this amendment. The the militia. control over may subjected to martial law tia still be your of the man opinion “What would be severities, and all concomitant its who, were nu- living where thieves so disgraceful punishments, may still be every vigilant improve as to merous and made marched from state state plunder, go should opportunity unwilling crushing instruments of thoughtless security, sleep night liberty.” expiring the last efforts of ... open with his doors wide the conduct of the Similar would be Centinel, Revived, XXIX, Philadelphia No. States, if rest people of the United Independent September Gazetteer, security privileges invaluable their reprinted Young, supra (excerpt making by upon partial amendments 711-12). Anti-Feder- note Extreme new constitution: Congress to the placat- like the would not be alists Centinel many these amendments are although recognition right of a about ed mere necessary, yet whilst very proper and Anti-Federal- which the Federalists to retain the constitution is suffered right of the agreement: were in ists then- powers may defeat In keep and bear arms. people to may, and incon- salutary operation, but view, gov- long as as the federal Centinel’s decisively injurious trovertibly will be so over power such extensive ernment had vestige of liber- sweep away every as to militia, were not people’s liberties the understand- ty; upon it is an insult simply rejected the safe. The Centinel discernment of the ing and argument that there repeated Federalists enjoyment them the secure flatter worry standing was no need to about precari- so privileges, that are held armed. army long as individuals were a tenure. ous and transient correctly also observed The Centinel limited, Besides, of these inse- some nothing did preamble the amendment’s amendments, which, superficial to a cure imbalance) (or alter the balance observer, provi- seem to contain useful govern- and federal between the state attention, sions, examined with when the militia. ments as to I inoperative. delusive and found them. will two or three of instance Century Commentary 6. 19th of the scholars great Constitutional proposed of the amend- Article 5th militia, recognized that the Second Century 19th regulated com- ments—‘A well of indi- guarantees being body people, posed carry fire- state, possess Americans security of a free vidual the best contributions list their and bear arms. We First, with, order in which were made. favorably to, St. compared the rele- George Tucker: part vant English Rights, Bill of only pertained which to Protestants and regulated being

“8. A well militia even only for those as “suitable to their security state, necessary to the of a free condition degree.” The Amendment right keep to and bear to right is said facilitate the of self defense. arms, shall infringed. not be Amend- Having individuals is particularly armed ments to C.U.S. Art. 4. necessary standing when armies are kept may This be considered as the true up, as the combination of a standing army palladium liberty.... right of The of and a disarmed populace threatens self defence is the first of nature: law liberty. destruction of governments most it study has been the Second, William Rawle: of rulers to confine this within the narrowest limits possible. article, “In Wherever declared, second it is standing armies are kept up, and the regulated that a well militia is neces- right of keep to sary state; and bear security a free is, any arms under pretext colour or proposition from which few will dissent. whatsoever, prohibited, liberty, if war, not al- Although actual the services of annihilated, ready is on the regular brink of troops confessedly are more destruction. In England, valuable; the people yet, peace while prevails, and disarmed, have been generally, under in the commencement of a war before a specious pretext preserving regular raised, force can be the militia game: a failing never bring lure to over form the palladium of country. aristocracy landed support any to They ready invasion, repel to to measure, mask, under that though calcu- suppress insurrection, preserve lated very different purposes. True good order peace government. is, their bill of seems at first That they should regulated, be well is view to counteract policy: but judiciously added. A disorderly militia right of bearing arms is confined to disgraceful itself, is and dangerous protestants, and the words suitable to not to enemy, but country. to its own their degree, condition and have duty been government is, the state interpreted to prohibition authorise the adopt regulations such as will tend to of keeping gun engine other for the good make soldiers with the least inter- game, farmer, destruction of ruptions of the ordinary and useful occu- tradesman, inferior person other pations of civil life. In this all the Union qualified kill game. So that not one has a strong and visible interest. man in five hundred can keep gun corollary, from position, the first his house without being subject to a is, that the the people penalty.” and bear arms shall not be infringed. George Tuoker, The prohibition 1 St. general. is No clause Blacicstone’s Com- in the Constitution Referenoe, by any could mentaries: with Notes rule of Laws, the Constitution construction be give conceived to to con- of the Federal gress a power to disarm the people. States; Government of the United Such a flagitious attempt Virginia, (1803) could Commonwealth (ellipsis in original). Note how the fact made general under some pretence by a the Second applies legislature. state But if in any blind generally Americans sharply pursuit contrasted power, inordinate either declaration, a preamble that the is it, may- ognizes this amendment attempt should setting forth the desirabili- “proposition,” a on both. to as a restraint appealed during peace- a militia ty upon of reliance Europe, of the countries In most of oppo- militia is the well-regulated time. A denied, not seem to be right does militia. disorderly, disgraceful a site of spar- more or less it is allowed although that the Amendment’s Rawle also observes In according to circumstances. ingly, applies to all Ameri- guarantee substantive boasts so country a which England, general.” is He prohibition “[t]he cans— freedom, was se- right the much of its precludes leg- that it plain likewise makes subjects only, on the protestant cured to Rawle, the people.” islation “to disarm 1688; cautiously of and revolution Tucker, clear that George makes like St. bearing that of arms to be described Amendment does not suffer the Second defence, condi- to their ‘suitable their corresponding infirmities of the from the tions, law.’ An arbi- by and as allowed Rights. Bill of part English of the game of preservation code the trary them. long disgraced has country in that Next, Joseph Story: Justice people very proportion A small ‘A “§ The next amendment is: 1000. it, though for to kill being permitted being necessary militia to regulated well subsistence; gun a or other own their state, right of security of a free instrument, by an purpose for that used shall and bear arms people may be seized and person, unqualified infringed.’ not be Blackstone, re- in whom we forfeited. arti- importance § of this always cannot trace gret that we any per- scarcely by be doubted cle will liberty, of rational expanded principles sons, duly upon have reflected who however, subject, that on this observes de- militia is the natural subject. The insurrections prevention popular country against sudden fence of a free by disarm- government and resistence to invasions, domestic insurrec- foreign meant than people, is oftener ing tions, usurpations domestic and avowed, makers of forest policy for against rulers. It is sound game laws. military keep up large people a free however, not, ought This standing armies establishments to the distur- to be abused government, enormous from the peace, time of both public peace. bance of attended, which expenses, with arms, persons assemblage An means, they afford which the facile purpose, is an indictable for an unlawful rulers, to unprincipled to ambitious offence, carrying of arms and even the trample government, or subvert individual, attended single a abroad people. upon just giving reason with circumstances arms keep, and bear the citizens an unlaw- purposes to make fear that he considered, palla- as the justly has been them, be sufficient ful use since republic; dium the liberties of surety him give require cause to against check strong moral it offers would be If he refused he peace. arbitrary power usurpation and imprisonment.” liable rulers; if these generally, even and ivill instance, en- op in the first are successful Rawle, A Constitu- View William resist, triumph able the America 125- States of tion of United though this truth 1970) (2d yet, And (Da over them. ed. Capo Press clear, importance and the (footnotes omitted). would seem so rec- explanation This regulated of a well militia would strong seem so against moral check the usurpa- undeniable, it disguised, cannot be arbitrary rulers, tion and power of among the American there is necessary as a and efficient means of growing any system indifference to regaining rights when temporarily over- discipline, militia and a strong disposi- by usurpation. turned tion, burthens, from a sense of its to be Right The is General. —It might be regulations. practi- rid of all How it is supposed from phraseology the of this keep people duly cable to the armed provision right to keep the and bear without organization, some it is difficult only guaranteed militia; arms was to the to certainly see. There is no small dan- but this would an interpretation ger, may that indifference lead to dis- by militia, warranted the intent. The as gust, disgust contempt; and to and thus has been elsewhere explained, consists gradually protection undermine all the who, of persons law, those under the intended this clause of our national performance liable to the of military rights.” bill of duty, and are officered and enrolled for Joseph Story, Commentaries on the Consti- service when upon. called But the law (Car- tution of the United States 708-709 may provision make for the enrolment of 1987) (1833) olina Academic (empha- Press all who perform are fit to military duty, added). Story sis Justice calls right the of or of a small only, number or it may keep “citizens” to and bear arms “pal- the wholly any all; omit to provision make ladium” of our liberties. He viewed the right and the were limited to those if private ownership of firearms as reducing enrolled, purpose the this guaranty the need for the large maintenance of might altogether he by the ac- defeated standing armies by promoting the vitality tion neglect act government of the militia, of the and laments par- that militia it was meant to hold check. The ticipation decline, is on the fearing this will meaning provision the undoubtedly result fewer Americans being armed. is, that people, the whom the mili- from finally, taken, And Cooley: Thomas tia must be shall right have the arms; keep and bear Right Keep need no “SeCtion IV. —The permission regulation of law for

Bear Arms purpose. But this enables govern- The By the second Constitution. — ment well-regulated to have a militia; amendment to the Constitution it is de- for to bear implies arms something that, well-regulated clared ‘a militia be- more than the mere keeping; implies it ing necessary to the security of a free learning handle use them in a state, right of the people way that makes those who keep them bear arms shall not be infringed.’ ready use; for their efficient in other amendment, like pro- most other words, implies to meet for Constitutions, visions in the has a histo- voluntary discipline arms, observing ry. It adopted with some modifica- in doing so the laws of public order. enlargement tion and from the English Standing Army. n further purpose Bill Rights where it stood as —A protest against arbitrary action is, this preclude amendment dynasty overturned in disarming necessity or reasonable excuse keep- people, and aas of the pledge ing new up rulers a standing army. A standing tyrannical that this action army should cease. is condemned the traditions was meant declared to be sentiments the people, as being Federalists unchanged. The ratified peo- be of the dangerous liberties as Anti-Federalists as please wanted to preparation general as ple fundamentally possible without much as their institu- defence of for the power. the balance of federal-state altering of them. preservative arms tions with goal plainly stated Madison James kept. arms may be Arms What —The his amend- proposed when he submitted are such Constitution intended House. ments to the defence general are suitable day, op- dynamic political invasion community against Given Amendment is carrying wording of the Second secret pression, expected. deadly individual have been merely exactly what would suited those qualms no prohibited.” The Federalists had may encounters right of all the individual recognizing Cooley, Thomas M. Princi- The General In keep and bear arms. Americans to ples in the United Law of Constitutional documented, fact, one of we have (Rothman & 270-72 AMERICA of States talking favorite 1787-88 Federalists’ 1880) (footnotes 1981) (original ed. Co. army and federal standing points on added). omitted) (emphasis was to re- issues power over the militia Analysis the Ameri- Anti-Federalists that mind the and hence could were armed people can largely have recounted history we danger by a placed in possibly not briefly summarize. itself. We speaks for control army or federal standing federal a bill The Anti-Federalists desired militia. Second Amend- over increased express provision rights, a successful preamble represents ment’s militia, and a mean- power over state Federalists, further to by the attempt, power limitation of express ingful without pacify moderate Anti-Federalists a to maintain government the federal ground, conceding any additional actually were some- army. These issues standing fed- limiting power i.e. without of federal The prospect what interrelated. standing a maintain government eral useless and the militia power to render of the states increasing power army or army combined standing large maintain a militia. over the guarantees any specific absence liberty Anti-Fed- frightened of individual say that the Second is not This But the Anti-Federalist com- eralists. not preamble appropri was Amendment’s best with the resonated plaint that lacking in marginal or any way ate or is rights. a bill of the lack large at contrary. Quite the significance. true keeping citizenry generally Absent a was rati- In mid-1788 the Constitution arms, militia a private their own spring bearing of 1789 unchanged fied mean of could not thought then as it was control of both gained the Federalists pointed out Thomas ingfully exist. As Hard-core Congress. First houses individual Americans right of Cooley, the in all de- persisted three Anti-Federalists carry, acquaint themselves keep, mands, Anti-Federal- more moderate but a well- promote does indeed with firearms primarily were large ists and the develop by fostering militia regulated rights. Most securing a bill focused on citizens pool of firearms-familiar ment of averse to bill really not were Federalists in the upon serve himself, called that could be but, Madison like rights, James standing armies are militia. While any modifica- oppose had been forced shows history preamble, only mentioned it could since tions to Constitution well-regulated text, that the reason a militia of its namely that it protects individu- necessary security was declared of a al Americans in their state was because such a militia would bear arms whether or not are a mem- free greatly reduce the standing need ber a select performing militia or active Thus, army. the Second Amendment military service or training. directly

dealt with one of the Anti-Feder- indirectly alists’ concerns and addressed E. Second protects Amendment indi- the other two. While hard core Anti- rights vidual recognized Federalists the Second reject We rights collective and so- did well-regulat- not assure a phisticated collective models for in- militia govern- ed or curtail the federal terpreting the Second Amendment. We large ment’s to maintain a standing hold, Miller, consistent with it pro- army, they did not either control branch of individuals, tects the including (or Congress the presidency) and had to those not then actually a member of content with the right of individuals to engaged militia or in active military ser- keep and bear arms. vice or training, to privately possess and Finally, the many newspaper articles firearms, bear their own such as the pistol personal that, letters cited indicate here, involved person- suitable as time, Americans viewed the Second al, individual and are weapons not of the applying Amendment as to individuals. general kind or type excluded by Miller. is by This confirmed Congress’s the First However, because of our holding that sec- rejection of that amendments would have 922(g)(8), tion Emerson, as applied to does directly explicitly addressed the Anti- infringe his rights individual under the standing army Federalists’ power over Second Amendment we will not now fur- militia concerns. ther elaborate as to the exact scope of all have We found Second rights. no historical evidence Amendment that the Second Amendment was intended Application VI. convey states,

to militia to Emerson to the limit government’s the federal power to main- The district held court that section a standing tain army, applies only to 922(g)(8) was unconstitutionally overbroad members of a select militia while on active because allows rights second amendment duty.60 All of the evidence indicates that infringed be any express judicial absent Amendment, the Second like parts other finding person that the subject to the or- the Bill of Rights, to and applies protects posed der a danger. future In other individual Americans. words, the section 922(g)(8) threshold for

We find that history deprivation Second the fundamental Amendment plain reinforces the meaning keep and bear arms is too low.61 60. While there is no historical evidence § that "18 922(g)(8) U.S.C. is unconstitutional rights the states’ view of the Second Amend- because it pro- allows state court divorce correct, ment is we struck are the absence ceeding, particularized without findings of the any contemplated indication that the result violence, threat of future automatically de- sophisticated rights collective view was prive a citizen of his Second Amendment desired, of, by anyone. even conceived rights.... required All prosecu- that is tion under the Act boilerplate is a order with analysis district Thus, court's particularized constitu- no findings. the statute tionality 922(g)(8), essentially section safeguards against has no real arbitrary an as follows: abridgement of rights. Second Amendment held, were no than uncontested 922(g)(8) more have

Although, as we essence, Emerson, individual protect boiler-plate. does In Amendment Second that those court, that does not mean rights, that had concede the district subject made rights may never be express finding, on contained an order excep limited, specific narrowly tailored evidence, that adequate Emerson basis cases particular tions or restrictions threat actually posed a credible not inconsistent reasonable and that are wife, had safety of his physical generally to of Americans with matter at genuinely contested been private their individually keep and bear and the hearing, parties with the court in this historically understood arms 922(g)(8), of section then Emerson aware Indeed, con does not country. Emerson could, Amend- with the Second consistent hold, tend, did not the district court ment, fire- precluded possessing a from noted, it have previously As we otherwise. subject the or- he remained while arm felons, and those clear that infants is der.63 pos from may prohibited mind unsound 21, supra.62 note sessing firearms. See Though are concerned with we his Second argument Emerson’s order, findings in the express lack of have been violated any requirement the absence of with Sep that the propositions on the grounded (C)(ii) in clause of section for same express no 1998 order contains tember unpersuaded ultimately 922(g)(8), we a credible represents that he finding argument. Section Emerson’s (or his physical safety of wife threat hearing an actual 922(g)(8)(A) requires child), the court the evidence before opportunity an notice and prior sustain such issuing the order would not re 922(g)(8)(C)(ii) and section participate, the order provisions that the finding and (C)(ii) prohibit “explicitly” that the order quires it of section bringing within clause restraining entry Therefore, possession arm after criminalizing protected Second by upon order.” activity a civil state based Amendment Emerson, F.Supp.2d v. 46 findings, United States particularized order with no court (N.D.Tex.1999). 610-11 in direct viola- is over-broad and the statute Amendment individual’s of an Second tion Likewise, Supreme Court has re- rights. keep and bear that the arms marked contrast, 922(g)(8) § By is different from is, by the Bill protected like other statute, felon-in-possession 18 U.S.C. well-recognized "subject ex- Rights, to certain 922(g)(1), § an individual because once arising the necessities of the ceptions, from by felony, has his criminal of a he convicted infringed by laws and hence not case” "is the class taken himself outside conduct weap- carrying of concealed prohibiting the law-abiding enjoy full exercise of citizens who Baldwin, ons,” v. 165 U.S. 17 Robertson Furthermore, rights. the convicted civil their (1897), 326, 329, 41 715 S.Ct. L.Ed. federal state and is admonished in felon men bodies of laws “which forbid felony results in that a conviction courts organizations together military associate including rights, certain civil loss parade in cities towns ... to drill or so with This is not to bear arms. Illinois, v. law.” Presser unless authorized 922(g)(8).... § 580, 584, L.Ed. U.S. 6 S.Ct. boilerplate court that a state It is absurd (1886). collaterally and automati- can order divorce law-abiding citizen's Sec- cally extinguish a prohibi- contest that the does not particularly when 63. Emerson rights, ond order, the literal terms within tions of the order fall nor the judge issuing the neither court 922(g)(8)(C)(ii), the district did § are aware of parties attorneys their nor determine otherwise. arising fire- not penalties from criminal federal (actual, attempted) threatened or adequately use court followed state law in issu- physical reasonably force be ing the order. What we suggest do is that expected bodily injury. Congress to cause Congress did not have in mind orders is- legislated against the background of the sued legal system a under whose rules did almost universal rule of American law that not approximate the general above stated injunction for a temporary to issue: minimum standards for the issuance

“There must irrepa- likelihood that injunctive orders contested after notice rable harm will Speculative inju- occur. and hearing. sufficient;

ry is not there must be more than an unfounded fear on part any event, In it is clear to us Thus, applicant. preliminary in- that Texas general law meets these mini junction will not simply be issued See, mum e.g., standards. Indus. Texas prevent the possibility of some remote Gas v. Metallurgical, Phoenix 828 S.W.2d injury. future A presently existing ac- 1992): 532 (Tex.App.-Hou. [1st Dist.] tual However, threat must be shown. may “A trial court not issue a temporary injury need not have been inflicted injunction except prevent a threat- application when is made or be certain injury.... ened commission occur; strong threat of irreparable act enjoined to be must be more than injury before trial is an adequate basis.” just speculative, and injury Wright, Kane, Miller & Federal Prac- flows from the act must more than § 2948.1at TICE AND Prooedure: Civil 2d just conjectural.... The trial court will (footnotes omitted; 153-56 emphasis abuse its discretion if grants a tempo- added).64 rary injunction when the does evidence We conclude that Congress in clearly establish that the applicant is section enacting 922(g)(8)(C)(ii)proceeded actual, threatened with an irreparable assumption on the the laws of the injury.” several states were orders, such that court Morales, See also State v. 869 S.W.2d issued after notice and hearing, should not (Tex.1994) (“An injunction will not is prohibitions embrace the of paragraph sue (C)(ii) unless it is shown that the respondent unless such either were not contest will engage the activity enjoined”); Ar ed or evidence credited the court re Mora, v. 542, flected a mendariz real threat or S.W.2d danger injury of (Tex.1975) protected party by (reversing temporary injunction party enjoined. We do imply not that where Congress no “evidence probable intended to establishing injury”); authorize collateral review of particu Dallas General Drivers v. Wa lar mix, state court predicate order in 156 Tex. section 295 S.W.2d 922(g)(8)(C)(ii) prosecutions (1956); to determine Marriage In re Spiegel, 6 of whether that individual case the 1999). state S.W.3d (Tex.App.-Amarillo also, 2d, 64. See e.g., 42 Injunctions, Am Jur means probability there is a reasonable that a ("To § 32 at 606-08 injunc- entitled to an injury real ... will injunction occur is if tion, plaintiff ...") (footnotes must omitted; establish he ... granted that is empha- immediately danger sustaining, added); ("The of some di- § sis Id. 8 at 566 standard for rect injury as a result challenged con- granting preliminary injunction a is essential- duct. injunction The ly will not issue unless permanent injunction, same as for a there illegal is an imminent threat of action. exception plaintiff with the must words, In other injury injury or threat show a likelihood of success on the merits must he real apprehen- and immediate ... success”) (footnote rather than actual omit- injury sion grounded, ted). must be well which abuse its dis- that a “trial court will essentially the said conclude We orders, injunction a grants temporary if it applicable are cretion standards same clearly 1998 order does not estab- when the evidence September such as Family Code here, Texas threatened with applicant under that the issued lish pending that in a 6.502, provides actual, injury,” In- irreparable § which Texas an (em- and hear “after notice proceeding Gas, divorce at 532 supra, dus. 828 S.W.2d appropriate an may render ing, that, the court added), reference to with phasis tempo order, granting including injunction applica- temporary on a ruling n ... rary injunction protection tion, arises when abuse discretion “[a]n necessary including ... as deemed parties reference the trial court acts without parties to one or both order directed an ...; acts ar- guiding principles applicable by Section an act described prohibiting ... misap- bitrarily; misinterprets ... or 6.501(a).” 6.501(a), dealing with Section Marriage In Re plies the law....” in divorce restraining orders temporary (TexApp.- Spiegel, 6 S.W.3d “prohibit orders authorizes proceedings, added; citations (emphasis Amarillo (2) from: ... parties both ing one or omitted). in this connection We also note other, by telephone threatening the September that here of that orders such as any against action writing, to take unlawful 14, 1998, final decree of on the expire annoy intending by this action person, (and modification subject divorce (4) other; intentionally, ... or alarm thereto; incorporat- if prior the trial court bodily in recklessly causing knowingly, or they are final divorce decree ed into the child of either other or to a jury to the appeal). on direct subject to review then (5) or a child threatening the other party; say we cannot light foregoing, In bodily inju with imminent party either ” lack of a re- 922(g)(8)(C)(ii)’s that section to sec statute ry; predecessor ... The credible explicit, express an quirement for requiring has been construed tion 6.502 issuing the finding by the court threat necessity” for the of “reasonable showing appellate together including showing order —of itself injunction, temporary (prior to final being v. available injury.” See Florence court review probable of “a (Tex.Civ. Florence, only by 223-24 mandamus —renders judgment) 388 S.W.2d 1965). App.-Tyler infirm under the Second section an of such presence Amendment. troubled also somewhat We are furnish some likely finding would explicit appeal direct unavailability of review court issuing that the indication additional 6.502. interlocutory orders under section matter, such but considered properly However, § Family Code 6.507. See Texas inor “boilerplate” much findings can be as by man- is available appellate court review such an order. part other error as of discretion” stan- under an “abuse damus 485, 348 Briggs, 162 Tex. v. dard. Wallace Emerson’s contention As to (1961). are a num- There 527

S.W.2d issuing the the court the evidence before decisions appellate court reported ber order was insufficient 1998 September orders under the relief from granting such to threat a credible posed that he See, to show e.g., section 6.502. to predecessors child, we wife or safety of his physical the Wallace; 368 Daggett, 858 S.W.2d Little v. circumstances under these conclude that (Tex.1993); Daggett, v. 815 S.W.2d Dancy States, 100 445 U.S. v. United Garza, Lewis (Tex.1991); Post v. S.W.2d (1980) 1993). and our 63 L.Ed.2d We S.Ct. Christi (Tex.App.-Corpus Chambers, 922 v. in States decision United been generally that it has more also note (5th Cir.1991), each violence, sufficient, F.2d discussed threat of lawless is above, part necessarily I hereof preclude though likely so, barely to support the the court in section 922(g)(8) prosecu- the deprivation, while the order remains tion from that sort of collateral review of effect, enjoined of the party’s Second validity particular the section right arms, Amendment to keep and bear order, 922(g)(8) predicate where, at least and that this is so even though party the here, as hold we to be the case the order is enjoined may not collaterally attack the “transparently not so invalid” as to have particular predicate order the section “only pretense a frivolous to validity.” See 922(g)(8) prosecution, at long least so as Chambers at 239. order, here, as is not transparently so invalid as only to have respect pretense frivolous injunctions With temporary validity.65 and similar orders to only after issued hearing, law, notice and the Texas rule of VII. Conclusion noted, order,

as we have is that such an least to extent contested explicitly Error has not been demonstrated in the prohibiting acts such as are by covered district court’s refusal to dismiss in- section 922(g)(8)(C)(ii), may properly not dictment on commerce grounds. clause issuing concludes, unless the issue court stated, For the reasons we reverse the adequate based on evidence at the hearing, district court’s order granting the motion party restrained would otherwise to dismiss the indictment under Fifth pose a realistic threat of imminent physical Amendment. injury protected party, and this is so agree We with the district court that the regardless of whether or not Texas law Second Amendment protects requires right issuing court to make on the privately individuals to keep and express explicit record bear their findings to that Moreover, own firearms that effect. such are suitable subject as orders individu- al, personal to being by weapons set aside the issuing and are court as not of the well being subject general type Miller, some kind or review an excluded appellate case, In regardless court. such a we particular con- whether the indi- that the clude nexus between pos- firearm vidual actually is then a member of a session the party enjoined so However, and the militia.66 stated, for the reasons observed, 65. previously Moreover, As supra, see reaching note that issue we have present record does not confront us with majority done what the vast of other courts to, speak and we do not (al- faced situation in which with similar contentions have done possession the defendant’s merely question firearm beit our ent). is resolution of that is differ- (and/or not, incident to simply passive majority vast pending spe- have as the of) do, completion cial good initiation and concurrence would have simply us faith himself, said it makes no effort rid difference whether as soon after issuance right Second disqualifying and bear court reasonably order as arms is practicable right an individual circumstances, because even if it under the (or were an individual the conviction possession continued previously pos- of a statute) challenged would be valid. In sessed firearm. case, we were unless to determine the issue reject special We impas- concurrence’s proper construction of 922(g)(8) section sioned criticism of our reaching the issue of (which special Emerson’s favor concur- whether the Second Amendment’s suggest), rence does not resolution of this keep and bear is an right. arms individual appeal requires us to determine the constitu- precise That by issue was decided the district tionality 922(g)(8), facially of section and as court was briefed and argued both applied, (as under the Second Amendment parties in this court and in the district court. process well as under due clause order predicate that the we also conclude sufficient, likely albeit question in here is 34-35) of (“Objections to the Constitution so, deprivation, minimally support to formed the Convention. Government effect, the defen- in of it remains

while Rights, Declaration of and the There is no Ac- rights. Amendment dant’s Second being general of the Government Laws the district court’s we reverse cordingly, Laws & of paramount to the Constitutions on Second the indictment dismissal of States, the Declarations of the several grounds. are separate in the States no Secu- Rights Philadelphia II, Whig rity.”); An Old pro- In- cause for further remand the We dependent 17, 1787 October Gazetteer, herewith. not inconsistent ceedings 49-51) Young, at (excerpts reprinted in REMANDED67 REVERSED (“[T]he Congress fully unit be au- future poivers all such thorized to assume Appendix wickedness, according in their wisdom comes appendix in this The material may happen or the other as the one Young, Origin “The of from largely think shall time to time prevail, from ed.1995) (Golden (2d Amendment” Second ... not of a [I]t to assume. is proper Books), Young cited as hereinafter Oaks they really whether farthing consequence (all original unless otherwise emphasis necessary the law is opinion are of noted). so; to think only pretend proper, pretensions?— their for who can overrule a Bill Anti-Federalists want one, rights unless we had a bill No Rights. giving ... In such might appeal which we immense, Henry powers, Lee to Wil- such unlimited Letter from Richard (re- (October 1787) necessity rights of a there no bill Shippen, liam Jr. liberties?”); 31)(“I to the their have consid- secure Young, printed Massa- Elbridge Gerry to the ... & I find it Letter from ered the new Constitution 1787) (October 18, doubt, Court in its chusetts General for me to impossible 51) (“My Young, at unamended, reprinted in State, adoption (excerpt present ... objections plan, happiness principal Liberty and put it will Civil security of a without the system that the mercy of Rulers who at the III, Phila- Whig An Old rights.”); bill great unguarded powers may possess Independent delphia Gazetteer, October necessary alterations will ... The given Young, (excerpt reprinted nature general with the no means interfere 51) (“[T]here a bill of ought doing limit the plan, established, treaties which neither firmly oppres- from they will restrain good; but alter.”); can legislature Letter nor acts Tyrannic....”); sion the wicked & Louis Guillaume Otto Washington Letter from George George from Mason 1787) (October 21, (October de Montmorin Young, at Comte (reprinted clause). and Emerson has the indictment so on a dismissed We have done commerce fact, anything. In yet convicted of not been straightforward basis. been ac- (in that he has we been informed have reject implied criticism We likewise relating matter charges quitted state paragraph) fourth special concurrence’s special concurrence. alleged mentioning mentioned certain "facts” for not indictment, by any to be true not found are de- undisposed motions fact, pending 67. All relevant to the section and not trier court nied. alleged. The district 922(g)(8) violation 56) (“He 104) (“[T]he (excerpt reprinted Young, in at reprinted Young, in at plan Henry Richard radically [the Constitution] dis- is defective in a [Anti-Federalist Lee] especially government principle, fundamental which approves ought to be wit, found in every government; free might have been accorded pow- immense Whitehall, declaration of rights.”); Robert preceding ers without the Constitution Pennsylvania Convention, 28, November rights, always with bill which has been 117) (excerpt reprinted in Young, at regarded palladium peo- as the of a free (“If indeed the Constitution itself so well Philadelphia Confederationalist, A ple.”); powers defined the government that no October Herald, PENNSYLVANIA arise, mistake could and we were well as- 66) (“[A] (excerpt reprinted Young, in at sured that governors always our act political declaration those inherent and right, then we might be satisfied without rights ought to be in a BILL made OF explicit an reservation of those RIGHTS, that the may never lose not, people ought which the and mean not construction.”); their liberties Letter But, sir, part. we know that it is the George from Lee Turberville Arthur nature of to seek own augmenta- its (October 1787) (excerpt Lee reprinted tion, and thus the liberty loss of is the 71) (“[T]his Young, in points at out to me necessary consequence of a loose or ex- necessity absolute of a bill of rights— travagant delegation authority. Nation- that a very full explanatory & one been, al freedom has and will be the sacri- Liberty too—where not fice of ambition power, and it is our press, by jury the trial vicinage & duty employ present opportunity in great points all those every even —but stipulating such restrictions as are best privilege most trivial that Citizens have a protect calculated to oppression us from possess expressly stip- —shou’d slavery.”); A Federal A Republican, ulated and reserved —& the violation of (November Review of the Constitution them scrupulously most and Jealously 1787) 119) (excerpt reprinted Young, at guarded againsh consequence what is —Of (“Hitherto we have considering been guarantee federal republican gov- blemishes the Constitution stat- states, ernments to the individual when the edly objects exist—other are derived from power of the Militia’s even is rested Among one, omission. grand these the president....”); Letter from Arthur Lee upon which is indeed suspended every oth- (October Rutledge Edward er, is the omission rights.”); of a bill of (excerpt 72) (“I reprinted Young, do Letter from Thomas Jefferson to James Constitution], not like it [the The want of (December 20, 1787) Madison (excerpt re- promised rights, declaration of when 177) (“[A] printed in Young, at bill of some exceptions it, Body things, rights is what are entitled to in which no power expressly given, is im- against every government earth, gener- plies that every thing excepted giv- al particular, just govern- & what no en; is a very defect.”); R.S., material refuse, ment should inference.”); or rest on Philadelphia Pennsylvania HeRald, No- Letter from Thomas B. Waite George vember 1787 (excerpt reprinted in Thatcher, 8,1788 January (excerpt reprint- 101) (“The Young, at repeated, most 194) (“There ed Young, is a certain certainly substantial, the most charge darkness, duplicity and studied ambiguity against proposed constitution, is the expression running thro’ the whole Con- want of a rights.”); III, bill of Brutus New stitution which renders a Bill Rights November (excerpt peculiarly necessary. it now stands Journal, York —As

267 Philadelphia do, People, ever will One of the very few individuals Penn- but (ex- sylvania 17, October 1787 Gazette, Congress Consequently, understand it.— 45) (“The Young, in at cerpt reprinted Samuel, interpreter-”); its own will be by jury and trials press freedom of the Independent January Boston Chronicle, is si- infringed not on. The Constitution 10, Young, at (excerpt reprinted 1788 too, lent, and propriety with on these 202) (“The I have complaints, that most subject relative to the internal every other proposed Constitu- heard made about of These are se- government the states. tion, is no declaration of are that there state constitutions. cured the different Hugh Henry Brackenridge, rights.”); repeat again, I that the Federal Constitu- (ex- 1, Gazette, March 1788 PittsbuRGH tion does not interfere with these matters. 291) (“The Young, at cerpt reprinted in and limited power Their is defined evil.”); rights great bill is the want of a of 8th section of the first Article of Con- Maryland Martin, Baltimore Luther Jour- stitution, to take they power have not 21, (excerpts reprinted in March 1788 nal, press, nor can away the freedom of the 306) (“But proposed consti- Young, at they degree interfere in the smallest empowered being tution intended states.”); A any judiciary states, immediate- act not on but also Citizen, CaRlisle October Gazette, individuals, ly recognition it renders a Young, at (excerpt reprinted in 1787 rights stipulation in favour (“The nature and ob- consideration men, only proper, of states and of not both government will also ject general of this necessary.”); absolutely in my opinion, you but how it is to talk of a bill of shew weak states; Convention, government in it. It is a rights June Henry, Virginia Patrick The constitution not of individuals. (excerpt reprinted Young, rights for its own each state has a bill 436) (“[T]he necessity rights of a bill of citizens; plan guaranties proposed and the greater govern- in this appears to me govern- every republican state a form any government ment than ever it was novelty But it would be a ment for ever. before.”). states.”); rights to form a indeed bill And, sought were moderates who there Convention, Wilson, Pennsylvania James peace between the Federalists to make (excerpt reprinted in November recognized 114) (“[A] and Anti-Federalists by no rights bill of Young, govern- A True In a necessity Rights. necessary of a Bill of See measure. means a powers, Richmond, of enumerated Friend, possessed ment Broadside: December only unneces- 143) (“Let a measure would be not such Young, at (reprinted dangerous.”); sary, preposterous but page first of this us then insert Brutus, De- Alexandria VIRGINIA Journal, it, constitution, a declara- preamble as a reprinted in (excerpt cember an of our rights, tion of our enumeration 144) (“The powers which Young, at sovereign people; prerogatives, as a their rulers are com- people delegate to unknown, never hereafter be they may defined, they assume and if should pletely represen- contradicted our forgotten or warranted more than is there tatives, in Con- delegates, our our servants power there is a soon find ”). .... gress paramount of America United States bill say own, bring upon 2. Federalists them which would their given injured peo- an government just resentment of needed because federal XI, Boston Massaohusetts ple.”); Cassius rights. infringe no fundamental (excerpt December plain, re- obvious and that I am amazed Gazette, 179) (“[0]f printed Young, at good in what use man deplore should the omission of a rights, White, a in bill present rights.”); would be bill of of Alexander Win- Virginia ... It chester February case? can be to resort to when Gazette, supposed Congress (excerpts reprinted it is infring- Young, have in at (“There rights things ed are other people: Pennsyl- [in the unalienble of the but Minority’s vania proposed would it not much Declaration of easier to resort Rights] constitution, clearly so out of the power federal of to see if therein Congress, that the bare recital of them is given is power Congress to make the sufficient, conscience, I ‘rights mean the of question? law in If power such is not or religious liberty rights bearing given, the law in fact a nullity, is and the —the of defence, arms killing game thereby. will not be bound For let for —the liberty fowling, hunting fishing laws, it be remembered that such and such —the altering the laws of descents and only, constitution, as are founded on this distribution of the per- effects of deceased land.”); are to be the supreme laws of the sons and goods, titles of lands and and the Pinckney, General Charles South Carolina regulation of contracts in the individual Convention, January 18, 1788, (excerpt re- things States.’ These seem to have been 217) (“The printed Young, at general among objections, inserted them merely to government no powers has but what are ignorant induce the to believe that Con- expressly it; granted to it therefore has no gress would have a power over such ob- power away to take liberty of the jects and to infer from being their refused press.... [T]o have mentioned it in our place Constitution, their intention general Constitution would perhaps fur- to exercise that power to the oppression of argument, hereafter, nish an gen- people. But if had been admitted government eral had to exercise as reservations out powers of the granted powers expressly delegated not to it. For Congress, it would opened have a large reason, the same we rights had no bill of field indeed legal I construction: know Constitution; for, inserted our as we object an legislation which by a might perhaps have omitted the enumer- parity reason, might fairly not be deter- ation of some our rights, it might here- mined jurisdiction within the of Con- after be said delegated we had added). gress.”) (emphasis general government a power away to take argue 3. Federalists rights that bill such of rights our as we had not enumerat- may imply government power has ”); ed.... Aristides [Alexander Contee federal infringe rights those not mentioned. Hanson], Remarks ONthe PROPOSEDPlan of GOVERNMENT, A FEDERAL Wilson, Pennsylvania Convention, James ADDRESSED THE TO AMerioa, Citizens of the United States November 1787 (excerpt reprinted in 116) (“In Young, societies, at all there are AND PARTICULARLY TO THE PEOPLE OF MARY- January (excerpts reprinted many powers rights, which cannot be LAND, 239-42) (“[W]hen Young, at the compact particularly enumerated. A bill of rights [the Constitution] ascertains and defines annexed constitution an is enumer- the power delegated head, to the federal powers ation of the reserved. If we at- then cannot government, without man- tempt enumeration, an every thing that is ifest usurpation, exert power not ex- not presumed enumerated given. is to be pressly, necessary implication, is, con- consequence imperfect that an enu- ferred compact. This doctrine is so meration implied would throw all heads.”); probably with their The State government; into the scale Independent Virginia Soldier, Richmond be rendered January re- Yeates, (excerpt Pennsylva- Jasper Chronicle, incomplete.”); 209) (“[T]here (ex- printed Young, Convention, nia November nothing in this constitution itself that 125-26) (“I par- Young, cerpt reprinted ticularly bargains your for a surrender gentlemen those who conceive agree with liberties, if your you it must be own faults rights, according to the ideas a bill power may enslaved. Men in become opposition, accompanied would be usurp any authorities under constitution— difficulty danger; with considerable they may govern oppose and those their for, day by might argued at a future Norfolk; Marcus, tyranny.”); and Ports- in persons power-you the then undertook 12, (excerpt March Journal, mouth rights you which meant to enumerate the 297-98) (“It in reprinted Young, in at is reserve, you which now pretension the power they the of the Parliament if dare to comprised in that enumer- make is not it, by jury exercise to abolish trial ation, and, jurisdiction consequently, our man altogether woe be to the who circumscribed.”); Brutus, —but not Alexandria attempt would un- should dare to it—it (ex- 6, December Journal, VIRGINIA doubtedly produce an insurrection that (“[I]t 144) Young, at cerpt reprinted in every tyrant ground would hurl who would therefore have been not absurd destroy just attempted great dangerous to have inserted a bill but even English favorite of the nation. We cer- if, because, rights; of in the enumeration always guard of at tainly shall be sure this reserved, rights privileges any of to be least, upon any folly insanity such act of forgotten, had been omitted or and the They in soon would Representatives: our people, period, at a future should assume taught consequence sporting of with omitted, might those the rulers so feelings people.”); of a free Publius propriety dispute their to exercise Federalist, Hamilton], The No. [Alexander them, in they specified were not the bill November Paoket, The York New ”). rights.... of in (excerpt reprinted Young, at 105- argue 4. bill Federalists of 06) (footnote omitted) (“The of smallness Americans, freedom, needed as used to strength natural of army renders the rights. infringement would not allow of it; and community an overmatch for Letter from William Pierce to St. citizens, up not habituated to look 1787) (re- George (September Tucker military [protection], or to power 29) (“I Young, at set down printed love nor oppressions, submit to its neither nature, that a nation as a truth founded a soldiery: They view them with fear the habituated to freedom will never remain jealous in a neces- spirit acquiescence liberties.”); quiet under an invasion of its evil, pow- sary ready and stand to resist Philadelphia A [Pelatiah Web- they suppose may er which be exerted to Citizen ster], The WeaKness Exposed, army rights. of their prejudice of Brutus (reprinted Young, at circumstances, November may usefully under such 85) (“[SJhould ty- they [Congress] assume a small magistrate suppress aid powers, mob, rannical and make incroachments faction, or insurrec- or an occasional liberty peo- tion; without the consent of the to enforce en- but it will be unable they against attone for their te- the united efforts ple, soon croachments disgrace, great body people.”). merity, with shame argue purpose enslaving be raised for the Federalists federal if themselves and their brethren? [0]r standing army should not to maintain raised, they whether could subdue a nation the American because befeared freemen, prize liberty, who know how to an oppres- could resist armed and hence hands?”); have Ar- and who arms their army. standing sive Hanson], Re- [Alexander istides Contee [Federalist Noah of America A Citizen Proposed Plan a Federal marks on Webster], into the Lead- An Examination Government, Addressed Citizens of ing THE FEDERAL OF CONSTITU- PRINCIPLES pasticu- United States America (October (reprinted in TION larly People January Maryland, 40) (“Before standing army Young, at (excerpt reprinted Young, disarmed; rule, can must be as 240) (“If possible indeed it be in the nature every in Eu- kingdom are in almost shall, things, congress future in America can- rope. supreme power period, augmen- alarm us an improper sword; unjust by the not enforce laws be- not, case, we, troops, tation of could in that body people cause the whole of the militia, depend on the which is our- armed, a .superior and constitute force to selves.”); Pennsylvanian A III [Tench be, regular troops that can any band on Coxe], Pennsylvania Philadelphia Gazette, in the any pretense, raised United February (excerpt reprinted in 275-76) (“The States.”); Sentiments, Essay Young, on Federal at power of the Philadelphia Independent sword, say minority Pennsylvania is Oc- Gazetteer, in Congress. My the hands of friends and 23,1787 (excerpt reprinted Young, in tober so, countrymen, it THE is not POW- 57) (“If president at and the whole ERS OF THE ARE IN THE SWORD happen senate should to be the boldest HANDS OF THE YEOMANRY OF wealthiest, union, artful most men AMERICA FROM SIXTEEN TO SIXTY. supported by powerful the most connex- commonwealths, The militia of these free ions, design and unanimous of sub- arms, entitled and accustomed to their nation; if duing the concur- compared any possible army when must representatives rence of the obtained be tremendous and irresistable. areWho money troops purpose; yet for the these militia? they not our selves. [A]re personal Congress, whole influence of feared, then, Is it that we shall turn our parricide army their could prevail never against arms each man his own bosom. an over hundred thousand men armed and Congress have no to disarm the power disciplined, country, owners of the animat- swords, every militia. Their other ed only spirit liberty, but soldier, implement terrible are the against ardent resentment base treacher- birthright an American. What clause tyrants.”); ous Mr. Sedgwick, Massachu- in the state or foedral constitution hath (ex- Convention, January setts given away right.... that important I do 230-31) (“It cerpt reprinted Young, at affirm, not hesitate to that the unlimited was, said, he suppose chimerical idea to power of the sword is not in the hands of country that a like this could ever be en- governments, either the or state foedral army slaved. How an purpose for that but, where I trust God it will ever to be from obtained the freemen of the remain, people.”)-, in the hands For- They he, United certainly, States? said eign Spectator, REMARKS on the object will know to what applied. is to be Constitution, Amendments to the federal asked, Is it possible, he army proposed by that an could the Conventions ofMassachu- New-York, setts, Virgi- New-Hampshire, government; devotion the federal still it North-Carolina, going say not be too far to that the nia, with the South and governments State with the people on Pennsylvania Mary- minorities of repel their side would be able the dan- land, SPECTATOR, by a FOREIGN which, ger. highest number to ac- VI, Philadelphia Ga- Number Federal cording computation, to the best a stand- (excerpt reprint- November zette, ing army can be carried in country 556) (“We Young, proceed ed in does not one part exceed hundredth regard the amendments that consider souls; twenty-fifth whole number of or one govern- military power of the federal part of the number able to bear arms. ... proper- ment. While the have proportion yield, This would not hands, ty, spark in their arms States, army United an than more twen- spirit, corrupt congress of a noble the most ty-five thirty thousand men. To these any project tyran- mad to form must be opposed amounting would be a militia ny.”); Republican, Hartford Connecti- near a million citizens with arms in half January (excerpts Coueant, Cut hands, their officered men chosen from 188-91) (“it reprinted Young, is a themselves, among fighting for their com- capital liberty circumstance in favor of our mon liberties and united and conducted military are the themselves governments possessing their affections country. of our In countries under doubted, It may and confidence. well be arbitrary government, people op- whether a militia thus could circumstanced pressed dispirited possess and neither conquered by ever be a proportion such Tyrants nor know how to use them. arms regular troops. Those who are best ac- they never feel secure until have disarmed quainted with the last successful resistance They rely people. upon nothing the can country against of this the British arms mercenary standing troops deny possibility but armies of will be most inclined to advantage being of it. Besides support power. for the of their But the armed, Americans over possess which the people country of this have arms their nation, people every almost other hands; they military are not destitute of governments, the existence of subordinate knowledge; every required by citizen is people to which the are attached and soldier; law to we are all be marshaled appointed, militia which the officers are companies, regiments, brigades, into and against enterprises forms a barrier country. for the defense of our This is a ambition, any more insurmountable than power circumstance which increases the simple government which a form consequence people; of the and en- mili- Notwithstanding can admit of. rights priv- ables them to defend their tary king- establishments in the several ileges against every invader.... are far Europe, doms which carried as spirit oppose every bear, public gov- as the resources will open attempt to enslave direct to trust ernments are afraid them.”). ... the free with arms. Let us insult expresses largely Madison the same with the gallant citizens of America No. thought Federalist as follows: suspicion, they would be less able to is, it, “Extravagant supposition as the let they would rights defend the of which be however, regular army, be made. Let a possession, in actual than the debased sub- country, fully equal to the resources of the jects arbitrary power [Europeans] formed; entirely let it at the would be to rescue theirs from hands be way unnecessary, Federalist Pa- render it oppressors.” give {The of their is to general government full power to call forth Rossiter, pers, Library, New American militia, and exert the whole natural added.). 299-300; emphasis Union, strength necessary.... when argue 6. Federalist militia federal you If limit govern- their federal [the powers obviated the need and mini- militia, power you give ment’s] over the being large the likelihood there mized pretext them a for substituting standing standing army. army.” PARKER, M. Judge, ROBERT Circuit In No. 29 Hamilton Federalist states: specially concurring: well-regulated “If a militia be the most opinion I concur except for Sec- country, of a free ought natural defense V, I join tion V. choose not to Section certainly regulation to be under and at which concludes that the disposal body of that which is consti- bear arms under the Second Amendment guardian tuted the of national If security. right, is an individual because it is dicta are standing dangerous liberty, armies and is binding therefore not or on us an efficacious over the militia in the any other court. The determination body ought, possible, same as far as whether the bestowed the Sec- away pretext take the inducement and the ond Amendment are collective or individu- unfriendly to such institutions. If the fed- entirely al is unnecessary to resolve this government eral can command the aid of case and has bearing judgment no on the emergencies the militia in those which call opinion. we dictate The fact that military arm support of the civil pages dicta contained in Section magistrate, it can better dispense with the interesting, scholarly, V are and well writ- employment aof different kind of force. change ten does not the fact that former, If it cannot avail itself of the it will dicta and amount advisory to at best an obliged to recur the latter. To ren- treatise on this long-running debate. army unnecessary der an will be a more judges As federal it special charge is our certain method of preventing its existence to avoid questions constitutional when the prohibitions than a upon thousand paper.” outcome of the case does not turn on how Papers, Rossiter, Federalist {The New Service, we answer. See Spector Motor 183). Library, American at See also McLaughlin, 101, 105, Inc. v. 323 U.S. 65 Madison, Convention, Virginia James June 152, (1944)(“If S.Ct. 89 L.Ed. 101 there is 14, {excerpt reprinted 1788 Young, in at deeply one doctrine more any rooted than 404): 400, 402, “If insurrections should process adju other of constitutional arise, or invasions place, should take dication, it ought is that we not pass ought unquestionably to be em- questions of constitutionality ... unless ployed, them, to suppress repel rather adjudication unavoidable.”); such is Wal standing army. than a way best to do Alexander, (5th 1350, ton v. 20 F.3d 1356 things these put was to the militia on a Cir.1994)(Garwood, J., concurring special good and sure footing, gov- enable the ly)(“It is settled that strong courts have a ernment to make use of their services duty to avoid constitutional issues that necessary.... when a response by [After need not be resolved in order to determine George way Mason] most effectual parties to the case under guard against a standing consideration.”)(internal army, is to ren- quotations omit ted). der it unnecessary. Following rule, The most effectual this cardinal we will not, that example, pick among mining and choose Emerson had an individual right constitutional theories when under dueling Second Amendment that could have challenged provision any construction successfully been asserted as a defense Hooper v. Bernalillo Coun- is invalid. See against § charge violating 922(g)(8), Assessor, n. ty 472 U.S. then the issue would be cloaked legal (1985). 2862, 86 L.Ed.2d 487 Nor S.Ct. stands, significance. As it it makes no question will we decide constitutional 922(g)(8) simply difference. Section is an- when under construction the chal- example other of a reasonable restriction lenged must provision be sustained. See right on whatever contained the Sec- (9th Nevada, v. O’Connor 27 F.3d ond Amendment. Minnesota, Cir.1994); Bullock v. 611 F.2d scope And whatever the of the claimed Cir.1979). (8th Furthermore, Second Amendment right, responsible no fact that a trial on a passed court novel organization suggest individual or would question of constitutional law does not re- that it protect possession Emerson’s quire Appellate us to courts do likewise. guns of the other military- found his supposed judgments, to review style day arsenal the federal indict- opinions. Hopwood, See Texas v. 518 U.S. ment was handed down. In addition to the 1033, 1033, 116 S.Ct. 135 L.Ed.2d pistol Beretta nine millimeter issue (1996). Here, whether “the district here, Emerson had a second Beretta like court an adopting erred individual first, carbine, a semi-automatic M-l an rights or standard model as the basis for bayonet, SKS assault rifle with and a semi- its construction of the Second Amend- automatic M-14 assault rifle. Nor would ment,” Maj. Op. question is not a anyone suggest that Emerson’s claimed that affects the outcome this case no to keep supercedes and bear arms In holding matter how is answered. wife, daughter, that of his their and of § 922(g)(8) is not infirm as to Emer- bodily others to be free from harm or son, and at an finding the same time indi- Though threats of harm. I no see mention gunownership, majority vidual majority’s opinion, of it in the evidence today departs precepts from these sound pointed shows Emerson the Beretta judicial restraint. daughter at his wife and when the two special No aca- doubt the interests and went to an his office retrieve insurance demics on both sides of this will debate payment. When his wife moved to re- great take in the fact at long interest shoes, trieve her Emerson cocked the (albeit last some determined court has ready hammer and made to fire. Emer- dicta) that Amendment Second bes- instability threatening conduct son’s issue, right. tows an individual The real also manifested itself comments to his however, is the fact that whatever police. office staff and the Emerson told parameters nature or the Second AK-47 employee an that he had an right, Amendment be it collective or indi- pay the same that he a planned breath vidual, right subject it is a to reasonable boyfriend. a police visit to his wife’s To debate, therefore, regulation. The over officer he said that if of his wife’s right misplaced. is In nature property friends were to set foot on his analysis, right the final whether parking would found dead in the “be keep and bear arms collective or individ- lot.” is, legal consequence. ual is of no It duly opinion, majority only filling If the the Fed- majority noted Reporter page page If after of non- subject regulation. to reasonable deter- eral with no need for binding dicta there said, I have separately. As

me to write original case turns on the

nothing this Amendment, so no

meaning of Second majority follow what the has

court need regard. Unfortunately, in that how-

said

ever, majority’s exposition pertains to hotly-contested of the most issues of

one day. By overreaching the area of law, majority stirs

Second controversy necessity without when

prudence respect for stare decisis calls say nothing

for it to at all. See Cass R.

Sunstein, at a Time: One Case Judicial Supreme

Minimalism Court

(1999)(“[A] path usually minimalist —not usually

always, good but deal of —makes dealing

sense when Court is high complexity

constitutional issue of many people deeply

about which feel (on on which the nation is divided moral (italics grounds).”) original).

or other

Indeed, end, majority today may good

have done more harm than for those gunownership.

who embrace a

Olugbemiga BALOGUN, Petitioner,

v. ASHCROFT, Attorney

John D. U.S.

General, Respondent.

No. 00-60698. Appeals,

United States Court of

Fifth Circuit.

Oct. Notes be able to look them in the face 1789) (June 8, {reprinted in up against impossible Amendments for it is arise us[] 645). 34, at Young, supra Standing armey large note Support Lengthy Enough to Guard our Sea Jones, Madi- in a letter to James Joseph Coast[.]” son, wrote: amend- you copy “I for the thank George Letter from Nasson to Samuel proposed to the constitution ments 1789) (July {excerpt reprinted Thatcher they you lately which inclosed (em- 796-97) me— Young, supra note personal to secure the are calculated added). phasis far as declara- so Ames, a Congressman Fisher While paper purpose, tions on can effect the Federalist, pleased very strong great Powers of leaving unimpaired unlikely seemed Madison’s amendments such a na- government they are of — discord, expressed chagrin also cause he acceptable and of generally ture as to be were so focused on that the amendments assent likely course more to obtain the rights of the rabble that protecting the any Congress proposition that wod. they belong did not the Constitution. powers or lessen tending separate had the amendments on the “We have them in either branch.” referred them to a committee tapis, and Madi- Joseph Letter from Jones James hope I much de- of one from a State. (June 24, {excerpt reprinted son mode, by this will be avoided bate 673). Surely Mr. Young, supra note ra- that the amendments will be more distinguished an amend- would have Jones tional, than populum, less ad Madi- rights.” “personal ment that did not secure conciliate, necessary to son’s. It is recog- Nasson Anti-Federalist Samuel amendments. But I would have guaranteed amendment nized that the trash, dis- such as would should arms for right of individuals Constitution, pleasing honor the without purpose. lawful them, propose its enemies. Should we again “I Amendments are once find that accede. It North Carolina hope may I that such Carpet. on the doubtful, not.” in case we should the Best Inter- place take as will be for Rich- George Ames to

Case Details

Case Name: United States v. Emerson

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 2, 2001

Citation: 270 F.3d 203

Docket Number: 99-10331

Court Abbreviation: 5th Cir.