GARWOOD, Circuit Judge:
The United States appeals the district court's dismissal of the indictment of Defendant-Appellee Dr. Timothy Joe Emerson (Emerson) for violating 18 U.S.C. § 922(g)(8)(C)(ii). The district court held that section 922(g)(8)(C)(ii) was unconstitutional on its face under the Second Amendment and as applied to Emerson under the Due Process Clause of the Fifth Amendment. We reverse and remand.
Facts and Proceedings Below
On August 28, 1998, Sacha Emerson, Emerson's wife, filed a petition for divorce in the 119th District Court of Tom Green County, Texas. The petition also requested, inter alia, a temporary injunction enjoining Emerson from engaging in any of twenty-nine enumerated acts. On September 4, 1998, Judge Sutton held a temporary orders evidentiary hearing. Sacha Emerson was represented by counsel while Emerson appeared pro se. There is no evidence that Emerson was unable (financially or otherwise) to retain counsel for the hearing or that he desired representation by counsel on that occasion. He announced ready at the beginning of the September 4 hearing. Almost all of Sacha Emerson's direct testimony concerned financial matters, but the following relevant
Emerson declined an opportunity to cross-examine Sacha and presented no evidence tending to refute any of her above quoted testimony or to explain his conduct in that respect. In his testimony he stated in another connection, among other things, that he was suffering from "anxiety" and was not "mentally in a good state of mind."
On September 14, 1998, Judge Sutton issued a temporary order that included a "Temporary Injunction" which stated that Emerson "is enjoined from" engaging in any of twenty-two enumerated acts, including the following:
The order provides that it "shall continue in force until the signing of the final decree of divorce or until further order of this court." The September 14, 1998 order did not include any express finding that Emerson posed a future danger to Sacha or to his daughter Logan.
On December 8, 1998, the grand jury for the Northern District of Texas, San Angelo division, returned a five-count indictment against Emerson. The government moved to dismiss counts 2 through 5, which motion the district court subsequently
Emerson moved pretrial to dismiss the indictment, asserting that section 922(g)(8), facially and as applied to him, violates the Second Amendment and the Due Process Clause of the Fifth Amendment. He also moved to dismiss on the basis that section 922(g)(8) was an improper exertion of federal power under the Commerce Clause and that, in any case, the law unconstitutionally usurps powers reserved to the states by the Tenth Amendment. An evidentiary hearing was held on Emerson's motion to dismiss.
The district court granted Emerson's motions to dismiss. Subsequently, the district court issued an amended memorandum opinion reported at 46 F.Supp.2d 598 (N.D.Tex.1999). The district court held that dismissal of the indictment was proper on Second or Fifth Amendment grounds, but rejected Emerson's Tenth Amendment and Commerce Clause arguments.
The government appealed. Emerson filed a notice of cross-appeal, which was dismissed by this Court. The government challenges the district court's dismissal on Second and Fifth Amendment grounds. Emerson defends the district court's dismissal on those grounds and also urges that dismissal was in any event proper under the Commerce Clause and on statutory grounds.
I. Construction of 18 U.S.C. § 922(g)(8)
18 U.S.C. § 922 provides in relevant part:
Emerson argues that section 922(g)(8)(C)(ii) should be construed to require that the particular predicate court order include an explicit finding that the person enjoined posed a credible threat of violence to his spouse or child. Emerson further argues that the statute must also be read to require that the predicate order be supported by sufficient evidence before the court entering it to sustain such a finding, so that the court in the criminal prosecution must examine the record in the proceeding before the court entering the predicate order and must acquit the defendant in the criminal case if the evidence before the court entering the predicate order was not sufficient to sustain such a finding. It is, of course, our duty to construe a statute so as to avoid any serious constitutional questions. However, the statute must be susceptible to that construction, i.e. our construction must be fairly possible; the duty to avoid constitutional questions is not a license to rewrite the statute. Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 1222, 143 L.Ed.2d 311 (1999); Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 118 S.Ct. 1279, 1283, 140 L.Ed.2d 438 (1998); United States v. Albertini, 472 U.S. 675, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985). "If the statutory language is unambiguous, in the absence of `a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.'" Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 299, 78 L.Ed.2d 17 (1983) (quoting United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981)). In addition, if uncertainty remains after an examination of the statute's text, its legislative history and the policies it advances, the rule of lenity requires this uncertainty to be resolved in favor of Emerson. United States v. Prestenbach, 230 F.3d 780, n. 23 (5th Cir.2000).
Turning first to Emerson's second statutory argument, there is nothing in the text of the statute to support it. Moreover, it is contrary to uniform construction of section 922(g) and its predecessors under which the courts have construed this and other similar subsections of section 922. See, e.g., Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980); United States v. Chambers, 922 F.2d 228, 232-40 (5th Cir. 1991). Just as Lewis observed that "nothing [in the statutory text] suggests any restriction on the scope of the term `convicted,'" id. at 918, so also nothing in section 922(g)(8) suggests that the validity of the particular predicate court order may be inquired into in the section 922(g)(8) criminal prosecution. Moreover, this is consistent with the long standing federal rule that violation of an injunction that is subsequently invalidated may, at least so long as it cannot be characterized as having only a transparent or frivolous pretense to validity, be punished as criminal contempt. See Chambers at 239-40; National Maritime Union v. Aquaslide `N' Dive Corp., 737 F.2d 1395, 1399-1400 (5th Cir.1984).
We likewise reject the argument that section 922(g)(8) requires that the predicate order contain an express judicial finding that the defendant poses a credible threat to the physical safety of his spouse or child. If the requirements of 922(g)(8)(A) and (B) are fulfilled, then by its terms section 922(g)'s firearms disability
Notwithstanding the lack of textual ambiguity, Emerson maintains that we should either imply the express judicial finding requirement into section 922(g)(8) or at least recognize the lack of an express judicial finding as an affirmative defense to section 922(g)(8). He argues that, without the requirement of an express judicial finding, sections 922(g)(8)(B) and (C)(ii) are redundant while section 922(g)(8)(A) is rendered a nullity. While there is some overlap between section 922(g)(8)(B) and (C)(ii), each still has some independent scope in the statutory scheme. Section 922(g)(8)(B) broadly refers to orders that restrain harassing, stalking or threatening. It is quite possible that an order could surmount the section 922(g)(8)(B) hurdle and yet only fulfill one of the section 922(g)(8)(C) criteria. Congress obviously felt that if the order only "restrains" harassing, stalking, threatening, or otherwise causing fear of injury, an express judicial finding of a credible threat of violence was necessary. Section 922(g)(8)(B) and (C)(i). However, if the order "by its terms explicitly prohibits" the use, attempted use or threatened use of physical force, no such express finding was necessary. Section 922(g)(8)(C)(ii). Thus, Congress affirmatively drew a distinction between orders "explicitly prohibiting" the actual, attempted or threatened physical attack and those merely "restraining" stalking or harassment. It is true that both sections embrace orders that proscribe threats, but this degree of congruence is insufficient to overcome the plain meaning of the text. Nor do we agree that the absence of a requirement of an express judicial finding renders section 922(g)(8)(A) a nullity.
Emerson also argues that the word "restrain", as used in 922(g)(8)(B), necessarily requires an express judicial finding that the defendant poses a credible threat of violence to his spouse or child. The argument is simply that both temporary and permanent injunctions traditionally require, in addition to notice and hearing, some express judicial finding supporting the court's order. While this may be generally true, it is not invariably the case that injunctions must contain such findings and, more importantly, the argument made does not overcome the fact that Congress specifically required notice and hearing in all section 922(g)(8) cases but affirmatively and specifically required an express finding only in cases governed by clause (C)(i). The crux of the matter is that we cannot imply in clause (C)(ii) an express finding requirement that is not stated in it while being affirmatively and specifically stated in clause (C)(i).
Relying on the legislative history of section 922(g)(8), Emerson and amicus the State of Alabama contend that all three versions of the bill (one from the House, two from the Senate) that went to the Conference Committee required an express judicial finding. They contend that the real purpose of section 922(g)(8)(C)(ii) is to close a "loophole" in section 922(g)(8) that would have prevented it from applying if the express judicial finding was not in the order itself, but instead, for example, in an accompanying memorandum. We find neither argument ultimately persuasive. Contrary to the assertions of
139 Cong. Rec. S15638-03, *S15650. This language was sent to the Conference Committee on November 24, 1993, and clearly contemplates a firearms disability without either a conviction or an express judicial finding of future dangerousness. 139 Cong. Rec. S17095-03, *S17174.
Because the construction urged by Emerson is not fairly possible, we must decline his invitation to rewrite section 922(g)(8). Likewise, because section 922(g)(8) is not ambiguous, the rule of lenity provides no basis for relief.
II. Due Process Clause of the Fifth Amendment
The district court held that prosecution for violating section 922(g)(8) would deprive Emerson of his Fifth Amendment right to Due Process because: 1) Dr. Emerson did not know that possession of a firearm while being subject to the September 14, 1998 order was a crime; 2) section 922(g)(8) is an "obscure criminal provision" that would be difficult for Emerson to discover; 3) there is nothing inherently evil about possessing a firearm; and 4) Emerson had no reason to suspect that being subject to the September 14, 1998 order would criminalize otherwise lawful behavior. United States v. Emerson, 46 F.Supp.2d 598, 611-13. The district court relied upon Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 243, 2 L.Ed.2d 228 (1957), in which the Supreme Court struck down a Los Angeles law requiring resident felons to register with the city. The Supreme Court observed that: 1) the defendant had been prosecuted for passive activity; 2) the defendant was unaware of the need to register; 3) circumstances that would have prompted an inquiry into the necessity of registration were lacking; and 4) an average member of the community would not consider the punished conduct blameworthy. Id.
Moreover, Emerson filled out and signed BATF Form 4473 when, on October 10, 1997, he purchased the Beretta semi-automatic pistol referred to in Count 1. This afforded notice to Emerson that so long as he was under a court order such as that of September 14, 1998, federal law prohibited his continued possession of that weapon.
III. Commerce Clause
The district court rejected Emerson's contention that, in enacting section 922(g)(8), Congress exceeded its power under the Commerce Clause. As the district court noted, this Court has held that, because section 922(g)(8) only criminalizes the possession of firearms or ammunition "in or affecting commerce" and the reception of firearms that have been "shipped or transported in interstate or foreign commerce", Congress did not exceed its Article I, Section 8 powers in enacting it. United States v. Pierson, 139 F.3d 501, 503 (5th Cir.), cert. denied, 525 U.S. 896, 119 S.Ct. 220, 142 L.Ed.2d 181 (1998). Accordingly, the district court, as bound by this precedent as we are, did not err in denying Emerson's motion to dismiss the indictment on Commerce Clause grounds.
IV. Tenth Amendment
The district court held that congressional enactment of section 922(g)(8) did not violate the Tenth Amendment to the Constitution. Finding no reference to this issue in Emerson's brief to this Court, we must consider his Tenth Amendment claim abandoned.
V. Second Amendment
A. Introduction and Overview of Second Amendment Models
The district court held that the Second Amendment recognizes the right of individual citizens to own and possess firearms, and declared that section 922(g)(8) was unconstitutional on its face because it requires that a citizen be disarmed merely because of being subject to a "boilerplate [domestic relations injunctive] order with no particularized findings." Emerson, 46 F.Supp.2d at 611. The government opines that stare decisis requires us to reverse the district court's embrace of the individual rights model. Amici for the government argue that even if binding precedent does not require reversal, the flaws in the district court's Second Amendment analysis do.
In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia.
Proponents of the next model admit that the Second Amendment recognizes some limited species of individual right. However, this supposedly "individual" right to bear arms can only be exercised by members of a functioning, organized state militia who bear the arms while and as a part of actively participating in the organized militia's activities. The "individual" right to keep arms only applies to members of such a militia, and then only if the federal and state governments fail to provide the firearms necessary for such militia service. At present, virtually the only such organized and actively functioning militia is the National Guard, and this has been the case for many years. Currently, the federal government provides the necessary implements of warfare, including firearms, to the National Guard, and this likewise has long been the case. Thus, under this model, the Second Amendment poses no obstacle to the wholesale disarmament of the American people. A number of our sister circuits have accepted this model, sometimes referred to by commentators as the sophisticated collective rights model.
The third model is simply that the Second Amendment recognizes the right of individuals to keep and bear arms. This is the view advanced by Emerson and adopted by the district court. None of our sister circuits has subscribed to this model, known by commentators as the individual rights model or the standard model. The individual rights view has enjoyed considerable academic endorsement, especially in the last two decades.
B. Stare Decisis and United States v. Miller
The government steadfastly maintains that the Supreme Court's decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), mandated acceptance of the collective rights or sophisticated collective rights model, and rejection of the individual rights or standard model, as a basis for construction of the Second Amendment. We disagree.
Only in United States v. Miller has the Supreme Court rendered any holding respecting the Second Amendment as applied to the federal government.
The government's Supreme Court brief "[p]reliminarily" points out that:
In this connection the brief goes on to assert that it is "indisputable that Congress was striking not at weapons intended for legitimate use but at weapons which form the arsenal of the gangster and the desperado" (id. at 7) and that the National Firearms Act restricts interstate transportation "of only those weapons which are the tools of the criminal" (id. at 8).
The government's brief thereafter makes essentially two legal arguments.
First, it contends that the right secured by the Second Amendment is "only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state." Id. at 15. This, in essence, is the sophisticated collective rights model.
The second of the government's two arguments in Miller is reflected by the following passage from its brief:
"While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear them collectively (People v. Brown, 253 Mich. 537, 235 N.W. 245; State v. Duke, 42 Tex. 455), the cases are unanimous in holding that the term `arms' as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals. Thus in Aymette v. State [2 Humph., Tenn. 154 (1840) ], supra, it was said (p. 158):
The government's Miller brief then proceeds (at pp. 19-20) to cite various other state cases, and Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 329, 41 L.Ed. 715 (1897),
Thereafter, the government's brief in its "conclusion" states: "... we respectfully
Miller reversed the decision of the district court and "remanded for further proceedings." Id. at 820. We believe it is entirely clear that the Supreme Court decided Miller on the basis of the government's second argument — that a "shotgun having a barrel of less than eighteen inches in length" as stated in the National Firearms Act is not (or cannot merely be assumed to be) one of the "Arms" which the Second Amendment prohibits infringement of the right of the people to keep and bear — and not on the basis of the government's first argument (that the Second Amendment protects the right of the people to keep and bear no character of "arms" when not borne in actual, active service in the militia or some other military organization provided for by law). Miller expresses its holding as follows:
Note that the cited page of Aymette (p. 158) is the page from which the government's brief quoted in support of its second argument (see text at call for note 16 supra ).
Nowhere in the Court's Miller opinion is there any reference to the fact that the indictment does not remotely suggest that either of the two defendants was ever a member of any organized, active militia, such as the National Guard, much less that either was engaged (or about to be engaged) in any actual military service or training of such a militia unit when transporting the sawed-off shotgun from Oklahoma into Arkansas. Had the lack of such membership or engagement been a ground of the decision in Miller, the Court's opinion would obviously have made mention of it. But it did not.
Just after the above quoted portion of its opinion, the Miller court continued in a separate paragraph initially quoting the militia clauses of article 1, § 8 (clauses 15 and 16)
Miller then proceeds to discuss what was meant by the term "militia," stating in part:
These passages from Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old age and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units.
We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect.
We begin construing the Second Amendment by examining its text: "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II.
1. Substantive Guarantee
The states rights model requires the word "people" to be read as though it were "States" or "States respectively." This would also require a corresponding change in the balance of the text to something like "to provide for the militia to keep and bear arms." That is not only far removed from the actual wording of the Second Amendment, but also would be in substantial tension with Art. 1, § 8, Cl. 16 (Congress has the power "To provide for ... arming ... the militia ..."). For the sophisticated collective rights model to be viable, the word "people" must be read as the words "members of a select militia".
There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words "the people" have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words "the people" have precisely the same meaning within the Second Amendment
Our view of the meaning of "the people," as used in the Constitution, is in harmony with the United States Supreme Court's pronouncement in United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 1060-61, 108 L.Ed.2d 222 (1990), that:
Several other Supreme Court opinions speak of the Second Amendment in a manner plainly indicating that the right which it secures to "the people" is an individual or personal, not a collective or quasi-collective, right in the same sense that the rights secured to "the people" in the First and Fourth Amendments, and the rights secured by the other provisions
It appears clear that "the people," as used in the Constitution, including the Second Amendment, refers to individual Americans.
b. "Bear Arms"
Proponents of the states' rights and sophisticated collective rights models argue that the phrase "bear arms" only applies to a member of the militia carrying weapons during actual militia service. Champions of the individual rights model opine that "bear arms" refers to any carrying of weapons, whether by a soldier or a civilian. There is no question that the phrase "bear arms" may be used to refer to the carrying of arms by a soldier or militiaman. The issue is whether "bear arms" was also commonly used to refer to the carrying of arms by a civilian.
The best evidence that "bear arms" was primarily used to refer to military situations comes from Aymette v. State, 2 Humph., Tenn. 154 (1840), a prosecution for carrying a concealed bowie knife. The Supreme Court of Tennessee, in construing section 26 of its declaration of rights, providing that "the free white men of this State have a right to keep and bear arms for their common defence," stated:
Unlike the Tennessee constitution at issue in Aymette, the Second Amendment has no "for their common defence" language and the United States Constitution contains no provision comparable to section 28 of the Tennessee constitution on which the Aymette court relied.
Amici supporting the government also cite other examples of state constitutional provisions allowing a conscientious objector to be excused from the duty of bearing arms if he pays an equivalent so that another can serve in his place.
However, there are numerous instances of the phrase "bear arms" being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the "people" [or "citizen" or "citizens"] "to bear arms in defense of themselves [or `himself'] and the state," or equivalent words, thus indisputably reflecting that under common usage "bear arms" was in no sense restricted to bearing arms in military service.
We also note that a minority of the delegates to the Pennsylvania ratification
2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 623-24 (Merill Jensen ed., 1976). This is yet another example of "bear arms" being used to refer to the carrying of arms by civilians for non-military purposes. Also revealing is a bill drafted by Thomas Jefferson and proposed to the Virginia legislature by James Madison (the author of the Second Amendment) on October 31, 1785, that would impose penalties upon those who violated hunting laws if they "shall bear a gun out of his [the violator's] inclosed ground, unless whilst performing military duty." 2 THE PAPERS OF THOMAS JEFFERSON 443-44 (J.P. Boyd, ed.1950). A similar indication that "bear arms" was a general description of the carrying of arms by anyone is found in the 1828 edition of Webster's American Dictionary of the English Language; where the third definition of bear reads: "[t]o wear; to bear as a mark of authority or distinction, as, to bear a sword, a badge, a name; to bear arms in a coat."
We conclude that the phrase "bear arms" refers generally to the carrying or wearing of arms. It is certainly proper to use the phrase in reference to the carrying or wearing of arms by a soldier or militiaman; thus, the context in which "bear arms" appears may indicate that it refers to a military situation, e.g. the conscientious objector clauses cited by amici supporting the government. However, amici's argument that "bear arms" was exclusively, or even usually, used to only refer to the carrying or wearing of arms by a soldier or militiaman must be rejected.
c. "Keep ... Arms"
Neither the government nor amici argue that "keep ... Arms" commands a military connotation.
d. Substantive Guarantee as a Whole
Taken as a whole, the text of the Second Amendment's substantive guarantee is not suggestive of a collective rights or sophisticated collective rights interpretation, and the implausibility of either such interpretation is enhanced by consideration of the guarantee's placement within the Bill of Rights and the wording of the other articles thereof and of the original Constitution as a whole.
2. Effect of Preamble
We turn now to the Second Amendment's preamble: "A well-regulated Militia, being necessary to the security of a free State." And, we ask ourselves whether this preamble suffices to mandate what would be an otherwise implausible collective rights or sophisticated collective rights interpretation of the amendment. We conclude that it does not.
Certainly, the preamble implies that the substantive guarantee is one which tends to enable, promote or further the existence, continuation or effectiveness of that "well-regulated Militia" which is "necessary to the security of a free State." As the Court said in Miller, immediately after quoting the militia clauses of Article I, § 8 (cl. 15 and 16), "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made." Id., 59 S.Ct. at 818. We conclude that the Second Amendment's substantive guarantee, read as guaranteeing individual rights, may as so read reasonably be understood as being a guarantee which tends to enable, promote or further the existence, continuation or effectiveness of that "well-regulated Militia" which is "necessary to the security of a free State." Accordingly, the preamble does not support an interpretation of the amendment's substantive guarantee in accordance with the collective rights or sophisticated collective rights model, as such an interpretation is contrary to the plain meaning of the text of the guarantee, its placement within the Bill of Rights and the wording of the other articles thereof and of the original Constitution as a whole.
In sum, to give the Second Amendment's preamble its full and proper due there is no need to torture the meaning of its substantive guarantee into the collective rights or sophisticated collective rights model which is so plainly inconsistent with the substantive guarantee's text, its placement within the bill of rights and the wording of the other articles thereof and of the original Constitution as a whole.
Turning to the history of the Second Amendment's adoption, we find nothing inconsistent with the conclusion that as ultimately proposed by Congress and ratified by the states it was understood and intended in accordance with the individual rights model as set out above.
On May 25, 1787, the Federal Convention began meeting in Philadelphia to craft what would become the United States Constitution. The primary shortcoming of the Articles of Confederation was that the central government it provided for was too weak. It was generally recognized that, although a stronger central government was needed, the central government was to remain one of limited and enumerated powers only, lest the cure be worse than the disease. Thus, the challenge was to design a federal government strong enough to deal effectively with that particular range of issues requiring federal control, without enabling the federal government to become an instrument of tyranny. Not surprisingly, political leaders of that day differed as to the proper balance of these concerns. The Federalists favored a strong federal government. The Anti-Federalists were much more suspicious and fearful of a strong federal government and wanted numerous safeguards in place to protect the people and the states from
2. The Anti-Federalists' Fears
The Constitution alarmed Anti-Federalists for three reasons relevant to the debate over the meaning of the Second Amendment.
First, although the proposed federal government appeared to be one of limited and enumerated powers, the Anti-Federalists feared that it would someday attempt to infringe one or more of the people's fundamental rights. To help prevent this, the Anti-Federalists wanted the United States Constitution, like most of the state Constitutions, to contain a Bill of Rights.
Second, the Constitution gave the federal government large powers over the militia, allowing the Congress:
U.S. CONST. art. I, § 8, cl. 15, 16. Congress was also given the power "To raise and support Armies." Id. art. I § 8, cl. 12. The states were also forbidden to keep troops without the consent of Congress. Id. art. I, § 10, cl. 3.
The Anti-Federalists feared that the federal government would act or fail to act so as to destroy the militia, e.g. failure to arm the militia,
3. The Federalist Response
The Federalists, of course, wanted the Constitution to be ratified. Because the Constitution could only be ratified unchanged, this forced the Federalists to oppose all attempts to alter it prior to ratification. The Federalists argued that no bill of rights was needed for three reasons: 1) it was beyond the purview of the federal government, intended to be one of limited and enumerated powers, to infringe upon fundamental rights;
Realizing that the Anti-Federalists' two other concerns (federal control of arming and training of the militia and maintenance of a standing army) boiled down to a fear that the federal government's standing army would oppress a defenseless people, the Federalists' responded that: 1) the American people are armed and hence could successfully resist an oppressive standing army;
The Federalists also responded to the militia issue by arguing that the states had concurrent power to arm the militia, but this position was undermined when the Anti-Federalists invited the Federalists to put that state power in writing and that would have necessitated the return to the drawing board in another Constitutional convention that the Federalists were committed to avoiding.
The Federalist position as to the militia and standing army issues depended upon the people being armed notwithstanding that the Constitution did not guarantee the right of the people to be armed.
4. State Ratifications
Congress forwarded the Constitution to the states on September 28, 1787. State conventions began considering the Constitution later that year. By April 28, 1788, Delaware, New Jersey, Georgia, Connecticut and Maryland had ratified the Constitution without proposing any additions or changes to it. The first sign of trouble in a state convention was in Pennsylvania in December of 1787.
In the Pennsylvania convention, the Federalists outnumbered the Anti-Federalists about two to one. Not surprisingly, then, on December 12, 1787, the Pennsylvania convention ratified the Constitution by a vote of 46 to 23. The convention did not propose any changes to the Constitution. However, the disenchanted Anti-Federalists, known as the Pennsylvania Minority, explained that they would have agreed to the Constitution if it had been amended to reflect fourteen principles, among which were the following:
2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 623-24 (Merrill Jensen, ed.1976). Note that "bear arms" clearly pertains to private, civilian wearing or carrying of arms and the power of the state to organize, arm and discipline the militia is in a separate section, indicating that the Anti-Federalists viewed these issues as distinct.
Massachusetts ratified the Constitution on February 7, 1788, by a vote of 187 to 168. Although the convention proposed nine amendments, none of them has relevance to the issues with which we are concerned. However, during the Massachusetts convention, Samuel Adams proposed the following amendments:
DEBATES OF THE MASSACHUSETTS CONVENTION OF 1788 86-87, 266 (Boston, 1856). This is another indication that the Anti-Federalists desired protection for the right of all peaceful citizens to keep arms as well as a limitation on the power of the federal government to maintain a large standing army.
c. South Carolina
The South Carolina Convention ratified the Constitution on May 23, 1788, stating two understandings and proposing two amendments, none of which are relevant to the issues before us.
d. New Hampshire
After adjourning on February 22, 1788, to avoid rejection of the Constitution, New Hampshire ratified the Constitution on June 21, 1788, by a vote of 57 to 47. The New Hampshire convention proposed twelve amendments, the first nine of which are identical to Massachusetts'. New Hampshire's proposed Amendments 10 and 12 were as follows:
1 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 326 (2d ed., 1836). New Hampshire sought to protect the individual right of all citizens to have arms and, separately, to limit the power of the federal government to maintain a large standing army.
On June 25, 1788, the Virginia convention ratified the Constitution by a vote of 89 to 79. The convention proposed a bill of rights containing twenty separate provisions and, in a separate section, proposed twenty amendments to the Constitution. The seventeenth part of Virginia's proposed Bill of Rights and the ninth and eleventh parts of its proposed amendments to the Constitution were as follows:
3 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 658, 660 (2d ed., 1836). The bill of rights provision, after stating "[t]hat the people have a right to keep and bear arms," goes on to make general, philosophical observations about the militia and standing armies. However, these general, philosophical observations are given their legal effectuation through separate, specific provisions apart from the Bill of Rights. The Virginia convention realized that statements in the proposed Bill of Rights that militias are good and standing armies are bad fell short of adding to the power of the states or subtracting from the power of the federal government. In the separate and distinct amendments section, the states were explicitly given militia powers and the federal government was forbidden to maintain a standing army unless other specific criteria were satisfied.
f. New York
On July 26, 1788, New York ratified the Constitution by a vote of 30 to 27. New York incorporated an extensive Declaration of Rights and thirty-three proposed amendments to the Constitution into its ratification. The relevant portions of each are:
1 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 328, 330 (2d ed., 1836). Note that: 1) the philosophical declaration concerning the preferability of a militia, which follows the statement "[t]hat the people have a right to keep and bear arms," is not effectuated in the amendments section by a grant of power to the states to maintain a militia; and 2) there is a separate clause in the Declaration of Rights section regarding standing armies which is effectuated by a separate proposed amendment to the Constitution. This is another example that philosophical declarations alone were considered insufficient to subtract from the federal government's power or to add to the states' power.
g. North Carolina
On August 1, 1788, North Carolina refused to ratify the Constitution until a bill of rights and other amendments were added. The North Carolina convention demanded the same Bill of Rights and amendments as proposed by Virginia. It was not until November 21, 1789, after the Bill of Rights was forwarded by the First
h. Rhode Island
Rhode Island did not ratify the Constitution until May 29, 1790, and then by a vote of 34-32. Rhode Island incorporated a bill of rights into its ratification and proposed twenty-one amendments to the Constitution. The apposite portions of each are:
Id. at 335-36. Note how even the amendment regarding standing armies contains two philosophical declarations before getting to the substantive restriction on federal power, namely that no army shall be maintained during peacetime.
5. Proposal of Second Amendment
By mid 1788, the required nine states had ratified the Constitution, and it was clear the Federalists had won a major victory. But by the spring of 1789, the Anti-Federalists had succeeded in persuading many that a bill of rights was absolutely necessary. Some Anti-Federalists did continue to argue for additional, structural changes to the Constitution, but most were primarily concerned with a bill of rights. At the same time, while some Federalists continued to reject any changes to the Constitution, most softened their opposition to a bill of rights, mindful of the strong public support for it and aware that a bill of rights would not materially affect the plan of government they had worked so diligently to implement. See President George Washington, Inaugural Address, April 30, 1789 (excerpt reprinted in Young, supra note 34, at 642) ("I assure myself that whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for the public harmony, will sufficiently influence your deliberations on the question how far the former can be more impregnably fortified, or the latter be safely and advantageously promoted."); Letter from Charles Smith to Tench Coxe (October 18, 1788) (excerpt reprinted in Young, supra note 34, at 542) ("It seems, therefore, to be the wish of the moderate and reasonable men of all parties that some necessary explanations should take place, in order to quiet the minds of our dissenting fellow citizens, and to introduce union and harmony throughout the state. Attention to this subject ought to be considered as a duty incumbent upon our first
Federalist James Madison ran for a seat in the First Congress, and because of the strong public support for a bill of rights clarified his own support for it:
James Madison, Extract of a letter from the Hon. JAMES MADISON, jun. to his friend in this county, Fredericksburg VIRGINIA HERALD, January 29, 1788 (reprinted in Young, supra note 34, at 609). The Federalists ended up with a majority in both the House and the Senate. But as the eventual adoption of a bill of rights shows, many Federalists were as open to a bill of rights as James Madison himself was. See Letter from James Madison to Edmund Pendleton (April 8, 1789) (excerpt reprinted in Young, supra note 34, at 640) ("The subject of amendments has not yet been touched — From appearances there will be no great difficulty in obtaining reasonable ones. It will depend however entirely on the temper of the federalists, who predominate as much in both branches, as could be wished. Even in this State [Virginia], notwithstanding the violence of its antifederal symptoms, three of its six representatives at least will be zealous friends to the Constitution, and it is not improbable that a fourth will be of the same description."). The Anti-Federalists sensed that although the tide had turned their way as to alterations that would secure individual liberty, the prospects for other changes to the Constitution were dim. See Letter from Richard Henry Lee to Patrick Henry (May 28, 1789) (excerpt reprinted in Young, supra note 34, at 644)("I think, from what I hear and see, that many of our amendments will not succeed, but my hopes are strong that such as may effectually secure civil liberty will not be refused.").
a. Legislative History
On June 8, 1789, Virginia Congressman James Madison proposed several alterations to the Constitution in the First Congress. In his address to the House, Madison explained his rationale in proposing the changes:
James Madison, House of Representatives, June 8, 1789 (excerpt reprinted in Young, supra note 34, at 651-53). Madison proposed to insert, in Article I, Section 9, between its Clauses 3 and 4, the following clause (among others):
Id. at 654-55. Article I, Section 9 contains nothing but restrictions upon the power of the federal government; and its Clauses 2 and 3 relate only to individual rights (habeas corpus, bill of attainder and ex post facto).
Madison's proposal was eventually submitted to a House committee of eleven members, of which Madison was one. That committee issued its report on July 28, 1789. The clause that would become the Second Amendment then read:
Thus, the philosophical declaration was moved to precede the substantive guarantee
The House began its consideration of what would become the Second Amendment on August 17, 1789. Congressman Gerry moved to strike the religiously scrupulous exemption. See House of Representatives, Debate, August 17, 1789 (excerpt reprinted in Young, supra note 34, at 695-99). This motion was defeated by a vote of 24-22; however, this language would later be dropped by the Senate. Opponents of the individual rights model find hope in the initial appearance of the religiously scrupulous exemption and comments made by Congressman Gerry in attempting to excise it. They argue that because "bear arms" has a military connotation in the religiously scrupulous clause, it necessarily carries the same meaning in the substantive guarantee. This construction is supported, we are told, by Gerry's objection. Gerry feared that the federal government would use the clause to destroy the militia by declaring a large number of people religiously scrupulous and, therefore, ineligible for militia service. This would pave the way for oppression by the federal government's standing army.
Id. at 695-96. Gerry concluded by proclaiming, "[n]ow, if we give a discretionary power to exclude those from militia duty who have religious scruples, we may as well make no provision on this head."
Gerry was not the only member of the First Congress to express concern over the religiously scrupulous clause. Three days later, on August 20, 1789, Congressman Scott complained of it as well.
House of Representatives, Debates, August 20, 1789 (excerpt reprinted in Young, supra note 34, at 703). Congressman Boudinot opposed striking the clause, in part because such action would imply the federal government is going to "compel all its citizens to bear arms." Id. The House ended up adding "in person" to the end of the clause. Id. We find no meaningful support, in Congressman Scott's statement, for either the states' rights or the sophisticated collective rights models. Scott was not concerned, as Gerry was, that the federal government would use the religiously scrupulous clause as a ruse to exclude everyone from militia service. Scott was worried that too many individual Americans would avail themselves of the clause's protection and that this would cause the militia to be so weakened that the federal government would have no choice but to maintain a standing army. It is not exactly clear where Scott found violation of the people's right to keep arms. The lack of a dependable militia both leads to Scott's hypothetical violation and necessitates recourse to a standing army. It is possible that Scott found, in the amendment's philosophical declaration, some sort of right of the people to be free from a standing army.
Congressman Burke repeatedly proposed that a clause be added to the amendment that would have required the consent of two-thirds of both houses of Congress to maintain a standing army in time of peace. This proposal was defeated by a margin of almost two to one. House of Representatives, Debates, August 17, 1789 (excerpt reprinted in Young, supra note 34, at 697-98).
On August 24, 1789, the House completed its work on the proposed amendments
House of Representatives, Proceedings, August 24, 1789 (excerpt reprinted in Young, supra note 34, at 707).
The Senate, which had the House action before it from August 25 through September 9, 1789, made three changes: 1) the words "composed of the body of the people" were stricken; 2) the words "the best" were replaced by "necessary to the"; and 3) the entire religiously scrupulous clause was stricken. See THE COMPLETE BILL OF RIGHTS 173-76 (Neil H. Cogan, ed., 1997). The Senate debates were conducted in secret, so there is no direct evidence of why these changes were made. The Senate rejected a proposed amendment to add the words "for the common defense" just after "the right of the people to keep and bear arms". Id. Like the House, the Senate rejected a proposed amendment that would have required the consent of two-thirds of both houses of Congress to maintain a standing army in time of peace. Id. The Senate on September 8, 1789 also refused to adopt an amendment that would have given the states power to arm and train their militias.
The most significant Senate action is the rejection of the amendment that would have granted the power of the states to arm and train their own militias. This is, of course, the precise effect the states' rights model attributes to the Second Amendment. Proponents of that model argue that the rejection of that amendment simply indicates that this concern was already addressed, i.e. that the rejected amendment would have been mere surplusage. This is highly implausible, particularly given the Second Amendment's placement within the Bill of Rights, its "the right of the people" language identical to that of the First and Fourth Amendments, and its lack of any reference to the power or rights of the states, all as contrasted to the direct and explicit state power language of the rejected amendment.
Not surprisingly, the significance of the Senate's other alterations or rejections is open to question. It could be argued that the striking of the words "composed of the body of the people" supports the sophisticated collective rights view that "militia" in the Second Amendment really means "select militia" and, therefore, pertains only to our modern national guard. However, there is an abundance of historical evidence that indicates the Anti-Federalists abhorred the idea of a select militia every bit as much as a standing army.
The replacement of "best" with "necessary to the" strengthens the philosophical declaration's support for a militia. As the rejection of standing army amendments in the House and Senate, as well as subsequent history, show, even this bolder statement did not serve to limit the power of the federal government to maintain a large standing army. Probably the only bearing this change has on the task before this Court is that it makes the sophisticated collective rights model's contention that "militia" really means national guard or "select militia" even more questionable. Anti-Federalists would never have accepted that a select militia was the best security (or anything but a threat to) "a free state," much less necessary to the security of "a free state."
Opponents of the individual rights model claim the Senate refused to add "for the common defense" after the amendment's substantive guarantee because those words were unnecessary surplusage. Given the amendment's text and history, which, almost without exception, support the individual rights view, we believe it much more likely that the Senate rejected this language because it potentially posed the risk of an interpretation contracting the substantive guarantee.
Finally, perhaps the least relevant Senate change is the deletion of the religiously scrupulous clause. This may well have been because the Senate felt that the clause was not sufficiently germane to an amendment whose core purpose was to state the affirmative rights of individuals as opposed to limitations on their potential obligations, or, relatedly, that the clause dealt with a relatively minor, collateral matter which was not worth the controversy and/or confusion it had generated or could generate. Or, the Senate might simply have felt (as did Congressman Benson, see note 55 supra) this would be better left to the wisdom and discretion of a future Congress.
The House approved the Senate version of the amendment, and Congress forwarded it to the states along with the rest of the Bill of Rights on September 26, 1789.
b. Political Discourse
At the same time the above legislative history was being made, prominent Americans were writing in the newspapers and to each other. These writings provide some insight into the nature (individual or collective) of the Second Amendment.
Anti-Federalist William Grayson expressed concern to fellow Anti-Federalist Patrick Henry that the only amendments that would be approved are those, like Madison's, that recognize individual rights:
Letter from William Grayson to Patrick Henry (June 12, 1789) (excerpt reprinted in Young, supra note 34, at 668-69).
Federalist Fisher Ames was pleased that Madison's amendments primarily concerned noncontroversial individual rights.
Letter from Fisher Ames to George Richards Minot (June 12, 1789) (excerpt reprinted in Young, supra note 34, at 668).
Federalist Tench Coxe, in a widely republished article, described what would become the Second Amendment this way:
A Pennsylvanian [Federalist Tench Coxe], REMARKS on the first part of the AMENDMENTS to the FEDERAL CONSTITUTION, moved on the 8th instant in the House of Representatives, Philadelphia FEDERAL GAZETTE, June 18, 1789 (excerpt reprinted in Young, supra note 34, at 671). That same day, Coxe wrote to Madison, discussing public reaction to Madison's proposed amendments and his own comments thereon which appeared in the Federal Gazette. See Young, supra note 34, at 672. Madison responded:
Letter from James Madison to Tench Coxe (June 24, 1789) (excerpt reprinted in Young, supra note 34, at 673-74). Thus, consistent with his other statements, Madison seems to have endorsed Coxe's individual rights explanation of what would become the Second Amendment. Note that Coxe made no mention of the philosophical declaration regarding a well regulated militia, but only referred to the provision's substantive guarantee and also that Coxe's reference to "private arms" is essentially inconsistent with both the states' rights and sophisticated collective rights models.
Opponents of the individual rights view dispute that Madison's letter was an endorsement of Coxe's explanation of the amendments, claiming that Madison disagreed with Coxe's explanation of the right of conscience. In other words, they say
Letter from Joseph Jones to James Madison (June 24, 1789) (excerpt reprinted in Young, supra note 34, at 673). Surely Mr. Jones would have distinguished an amendment that did not secure "personal rights."
Anti-Federalist Samuel Nasson recognized that the amendment guaranteed the right of individuals to keep arms for any lawful purpose.
Letter from Samuel Nasson to George Thatcher (July 9, 1789) (excerpt reprinted in Young, supra note 34, at 796-97) (emphasis added).
While Congressman Fisher Ames, a very strong Federalist, was pleased that Madison's amendments seemed unlikely to cause discord, he also expressed chagrin that the amendments were so focused on protecting the rights of the rabble that they did not belong in the Constitution.
Letter from Fisher Ames to George Richards Minot (July 23, 1789) (excerpt reprinted in Young, supra note 34, at 679).
Congressman William L. Smith viewed the Bill of Rights as recognizing individual rights, not the structure of government.
Letter from William L. Smith to Edward Rutledge (August 9, 1789) (excerpt reprinted in Young, supra note 34, at 798) (emphasis added).
Pennsylvania Congressman Frederick A. Muhlenberg believed the Bill of Rights would placate "our Minority in Pennsylvania."
Letter from Frederick A. Muhlenberg to Benjamin Rush (August 18, 1789) (excerpt reprinted in Young, supra note 34, at 799) (emphasis added). Recall that the Pennsylvania Minority proposed what was indisputably an individual right to keep and bear arms.
Some Anti-Federalists were upset that Federalist James Madison was getting all the credit for proposing the Bill of Rights. They believed much of this credit was due Samuel Adams. Recall that Adams unsuccessfully proposed his own set of amendments to the Massachusetts Convention (and was much criticized for making the attempt).
Letter from Mssrs. Adams & Nourse to the Editor of the Boston Independent Chronicle, Philadelphia INDEPENDENT GAZETTEER, August 20, 1789 (reprinted in Young, supra note 34, at 701-702). This is significant because Adams' amendments prohibited the Constitution from ever being construed to "prevent the people of the United States who are peaceable citizens, from keeping their own arms." Id. This language is not at all susceptible to the
Many Anti-Federalists supported the Bill of Rights, notwithstanding that it fell far short of delivering what they had fought for in the state conventions. But at least one famous Anti-Federalist was enraged that the amendments did not alter the balance of power between the federal and state governments, particularly as to control over the militia.
Centinel, Revived, No. XXIX, Philadelphia INDEPENDENT GAZETTEER, September 9, 1789 (excerpt reprinted in Young, supra note 34, at 711-12). Extreme Anti-Federalists like the Centinel would not be placated by mere recognition of a right about which the Federalists and Anti-Federalists were in agreement: the right of the people to keep and bear arms. In the Centinel's view, as long as the federal government had such extensive power over the militia, the people's liberties were not safe. The Centinel simply rejected the Federalists repeated argument that there was no need to worry about a standing army as long as individuals were armed. The Centinel also correctly observed that the amendment's preamble did nothing to alter the balance (or imbalance) of power between the state and federal governments as to the militia.
6. 19th Century Commentary
The great Constitutional scholars of the 19th Century recognized that the Second Amendment guarantees the right of individual Americans to possess and carry firearms. We list their contributions in the
1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA, 300 (1803) (ellipsis in original). Note how the fact that the Second Amendment applies to Americans generally is sharply contrasted with, and favorably compared to, the relevant part of the English Bill of Rights, which only pertained to Protestants and even for those only as "suitable to their condition and degree." The Amendment is said to facilitate the right of self defense. Having individuals armed is particularly necessary when standing armies are kept up, as the combination of a standing army and a disarmed populace threatens the destruction of liberty.
Second, William Rawle:
WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 125-26 (Da Capo Press 1970) (2d ed. 1829) (footnotes omitted). This explanation recognizes that the preamble is a declaration, a "proposition," setting forth the desirability of reliance upon a militia during peacetime. A well-regulated militia is the opposite of a disorderly, disgraceful militia. Rawle also observes that the Amendment's substantive guarantee applies to all Americans — "[t]he prohibition is general." He likewise makes plain that it precludes legislation "to disarm the people." Rawle, like St. George Tucker, makes clear that the Second Amendment does not suffer from the infirmities of the corresponding part of the English Bill of Rights.
Next, Justice Joseph Story:
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 708-709 (Carolina Academic Press 1987) (1833) (emphasis added). Justice Story calls the right of "citizens" to keep and bear arms the "palladium" of our liberties. He viewed the private ownership of firearms as reducing the need for the maintenance of large standing armies by promoting the vitality of the militia, and laments that militia participation is on the decline, fearing this will result in fewer Americans being armed.
And finally, Thomas Cooley:
THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 270-72 (Rothman & Co.1981) (original ed. 1880) (footnotes omitted) (emphasis added).
The history we have recounted largely speaks for itself. We briefly summarize. The Anti-Federalists desired a bill of rights, express provision for increased state power over the militia, and a meaningful express limitation of the power of the federal government to maintain a standing army. These issues were somewhat interrelated. The prospect of federal power to render the militia useless and to maintain a large standing army combined with the absence of any specific guarantees of individual liberty frightened Anti-Federalists. But the Anti-Federalist complaint that resonated best with the people at large was the lack of a bill of rights.
In mid-1788 the Constitution was ratified unchanged and in the spring of 1789 the Federalists gained control of both houses of the First Congress. Hard-core Anti-Federalists persisted in all three demands, but more moderate Anti-Federalists and the people at large were primarily focused on securing a bill of rights. Most Federalists were not really averse to a bill of rights, but, like James Madison himself, had been forced to oppose any modifications to the Constitution since it could only be ratified unchanged. The Federalists wanted to please the Anti-Federalists as much as possible without fundamentally altering the balance of federal-state power. James Madison plainly stated this goal when he submitted his proposed amendments to the House.
Given the political dynamic of the day, the wording of the Second Amendment is exactly what would have been expected. The Federalists had no qualms with recognizing the individual right of all Americans to keep and bear arms. In fact, as we have documented, one of the Federalists' favorite 1787-88 talking points on the standing army and federal power over the militia issues was to remind the Anti-Federalists that the American people were armed and hence could not possibly be placed in danger by a federal standing army or federal control over the militia. The Second Amendment's preamble represents a successful attempt, by the Federalists, to further pacify moderate Anti-Federalists without actually conceding any additional ground, i.e. without limiting the power of the federal government to maintain a standing army or increasing the power of the states over the militia.
This is not to say that the Second Amendment's preamble was not appropriate or is in any way marginal or lacking in true significance. Quite the contrary. Absent a citizenry generally keeping and bearing their own private arms, a militia as it was then thought of could not meaningfully exist. As pointed out by Thomas Cooley, the right of individual Americans to keep, carry, and acquaint themselves with firearms does indeed promote a well-regulated militia by fostering the development of a pool of firearms-familiar citizens that could be called upon to serve in the militia. While standing armies are not mentioned in the preamble, history shows
Finally, the many newspaper articles and personal letters cited indicate that, at the time, Americans viewed the Second Amendment as applying to individuals. This is confirmed by the First Congress's rejection of amendments that would have directly and explicitly addressed the Anti-Federalists' standing army and power over the militia concerns.
We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government's power to maintain a standing army, or applies only to members of a select militia while on active duty.
We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.
E. Second Amendment protects individual rights
We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights.
VI. Application to Emerson
The district court held that section 922(g)(8) was unconstitutionally overbroad because it allows second amendment rights to be infringed absent any express judicial finding that the person subject to the order posed a future danger. In other words, the section 922(g)(8) threshold for deprivation of the fundamental right to keep and bear arms is too low.
Though we are concerned with the lack of express findings in the order, and with the absence of any requirement for same in clause (C)(ii) of section 922(g)(8), we are ultimately unpersuaded by Emerson's argument. Section 922(g)(8)(A) requires an actual hearing with prior notice and an opportunity to participate, and section 922(g)(8)(C)(ii) requires that the order "explicitly" prohibit
We conclude that Congress in enacting section 922(g)(8)(C)(ii) proceeded on the assumption that the laws of the several states were such that court orders, issued after notice and hearing, should not embrace the prohibitions of paragraph (C)(ii) unless such either were not contested or evidence credited by the court reflected a real threat or danger of injury to the protected party by the party enjoined. We do not imply that Congress intended to authorize collateral review of the particular state court predicate order in section 922(g)(8)(C)(ii) prosecutions to determine whether in that individual case the state court adequately followed state law in issuing the order. What we do suggest is that Congress did not have in mind orders issued under a legal system whose rules did not approximate the above stated general minimum standards for the issuance of contested injunctive orders after notice and hearing.
In any event, it is clear to us that Texas law meets these general minimum standards. See, e.g., Texas Indus. Gas v. Phoenix Metallurgical, 828 S.W.2d 529, 532 (Tex.App.-Hou. [1st Dist.] 1992):
See also State v. Morales, 869 S.W.2d 941, 946 (Tex.1994) ("An injunction will not issue unless it is shown that the respondent will engage in the activity enjoined"); Armendariz v. Mora, 526 S.W.2d 542, 543 (Tex.1975) (reversing temporary injunction where no "evidence establishing probable injury"); Dallas General Drivers v. Wamix, 156 Tex. 408, 295 S.W.2d 873, 879 (1956); In re Marriage of Spiegel, 6 S.W.3d 643, 645 (Tex.App.-Amarillo 1999).
We are also somewhat troubled by the unavailability of review by direct appeal of interlocutory orders under section 6.502. See Texas Family Code § 6.507. However, appellate court review is available by mandamus under an "abuse of discretion" standard. Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523, 527 (1961). There are a number of reported appellate court decisions granting such relief from orders under the predecessors to section 6.502. See, e.g., Wallace; Little v. Daggett, 858 S.W.2d 368 (Tex.1993); Dancy v. Daggett, 815 S.W.2d 548 (Tex.1991); Post v. Garza, 867 S.W.2d 88 (Tex.App.-Corpus Christi 1993). We also note that it has more generally been said that a "trial court will abuse its discretion if it grants a temporary injunction when the evidence does not clearly establish that the applicant is threatened with an actual, irreparable injury," Texas Indus. Gas, supra, 828 S.W.2d at 532 (emphasis added), and that, with reference to ruling on a temporary injunction application, "[a]n abuse of discretion arises when the trial court acts without reference to applicable guiding principles ...; acts arbitrarily; ... or misinterprets or misapplies the law...." In Re Marriage of Spiegel, 6 S.W.3d 643, 645 (Tex.App.-Amarillo 1999) (emphasis added; citations omitted). We also note in this connection that orders such as that here of September 14, 1998, expire on the final decree of divorce (and are subject to modification by the trial court prior thereto; if incorporated into the final divorce decree they are then subject to review on direct appeal).
In light of the foregoing, we cannot say that section 922(g)(8)(C)(ii)'s lack of a requirement for an explicit, express credible threat finding by the court issuing the order — of itself or together with appellate court review being available (prior to final judgment) only by mandamus — renders that section infirm under the Second Amendment. The presence of such an explicit finding would likely furnish some additional indication that the issuing court properly considered the matter, but such findings can be as much "boilerplate" or in error as any other part of such an order.
As to Emerson's contention that the evidence before the court issuing the September 14, 1998 order was insufficient to show that he posed a credible threat to the physical safety of his wife or child, we conclude that under these circumstances Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) and our decision in United States v. Chambers, 922 F.2d 228
With respect to temporary injunctions and similar orders to be issued only after notice and hearing, the Texas rule of law, as we have noted, is that such an order, at least to the extent contested and explicitly prohibiting acts such as are covered by section 922(g)(8)(C)(ii), may not properly issue unless the issuing court concludes, based on adequate evidence at the hearing, that the party restrained would otherwise pose a realistic threat of imminent physical injury to the protected party, and this is so regardless of whether or not Texas law requires the issuing court to make on the record express or explicit findings to that effect. Moreover, such orders are subject to being set aside by the issuing court as well as being subject to some review by an appellate court. In such a case, we conclude that the nexus between firearm possession by the party so enjoined and the threat of lawless violence, is sufficient, though likely barely so, to support the deprivation, while the order remains in effect, of the enjoined party's Second Amendment right to keep and bear arms, and that this is so even though the party enjoined may not collaterally attack the particular predicate order in the section 922(g)(8) prosecution, at least so long as the order, as here, is not so transparently invalid as to have only a frivolous pretense to validity.
Error has not been demonstrated in the district court's refusal to dismiss the indictment on commerce clause grounds.
For the reasons stated, we reverse the district court's order granting the motion to dismiss the indictment under the Fifth Amendment.
We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia.
We remand the cause for further proceedings not inconsistent herewith.
REVERSED and REMANDED
The material in this appendix comes largely from Young, "The Origin of the Second Amendment" (2d ed.1995) (Golden Oaks Books), hereinafter cited as Young (all emphasis in original unless otherwise noted).
1. Anti-Federalists want a Bill of Rights.
Letter from Richard Henry Lee to William Shippen, Jr. (October 2, 1787) (reprinted in Young, at 31)("I have considered the new Constitution ... & I find it impossible for me to doubt, that in its present State, unamended, the adoption of it will put Civil Liberty and the happiness of the people at the mercy of Rulers who may possess the great unguarded powers given ... The necessary alterations will by no means interfere with the general nature of the plan, or limit the power of doing good; but they will restrain from oppression the wicked & Tyrannic...."); Letter from George Mason to George Washington (October 7, 1787) (reprinted in Young, at 34-35) ("Objections to the Constitution of Government formed by the Convention. There is no Declaration of Rights, and the Laws of the general Government being paramount to the Laws & Constitutions of the several States, the Declarations of Rights in the separate States are no Security."); An Old Whig II, PHILADELPHIA INDEPENDENT GAZETTEER, October 17, 1787 (excerpts reprinted in Young, at 49-51) ("[T]he future Congress will be fully authorized to assume all such powers as they in their wisdom or wickedness, according as the one or the other may happen to prevail, shall from time to time think proper to assume. ... [I]t is not of a farthing consequence whether they really are of opinion that the law is necessary and proper, or only pretend to think so; for who can overrule their pretensions? — No one, unless we had a bill of rights to which we might appeal ... In giving such immense, such unlimited powers, was there no necessity of a bill of rights to secure to the people their liberties?"); Letter from Elbridge Gerry to the Massachusetts General Court (October 18, 1787) (excerpt reprinted in Young, at 51) ("My principal objections to the plan, are ... that the system is without the security of a bill of rights."); An Old Whig III, PHILADELPHIA INDEPENDENT GAZETTEER, October 20, 1787 (excerpt reprinted in Young, at 51) ("[T]here ought to be a bill of rights firmly established, which neither treaties nor acts of the legislature can alter."); Letter from Louis Guillaume Otto to Comte de Montmorin (October 21, 1787)
And, there were moderates who sought to make peace between the Federalists and Anti-Federalists and recognized the necessity of a Bill of Rights. See A True Friend, Broadside: Richmond, December 6, 1787 (reprinted in Young, at 143) ("Let us then insert in the first page of this constitution, as a preamble to it, a declaration of our rights, or an enumeration of our prerogatives, as a sovereign people; that they may never hereafter be unknown, forgotten or contradicted by our representatives, our delegates, our servants in Congress....").
2. Federalists say bill of rights not needed because federal government given no power to infringe fundamental rights.
One of the People, PHILADELPHIA PENNSYLVANIA GAZETTE, October 17, 1787 (excerpt reprinted in Young, at 45) ("The freedom of the press and trials by jury are not infringed on. The Constitution is silent, and with propriety too, on these and every other subject relative to the internal government of the states. These are secured by the different state constitutions. I repeat again, that the Federal Constitution does not interfere with these matters. Their power is defined and limited by the 8th section of the first Article of the Constitution, and they have not power to take away the freedom of the press, nor can they interfere in the smallest degree with the judiciary of any of the states."); A Citizen, CARLISLE GAZETTE, October 24, 1787 (excerpt reprinted in Young, at 57) ("The consideration of the nature and object of this general government will also shew you how weak it is to talk of a bill of rights in it. It is a government of states; not of individuals. The constitution of each state has a bill of rights for its own citizens; and the proposed plan guaranties to every state a republican form of government for ever. But it would be a novelty indeed to form a bill of rights for states."); James Wilson, Pennsylvania Convention, November 28, 1787 (excerpt reprinted in Young, at 114) ("[A] bill of rights is by no means a necessary measure. In a government possessed of enumerated powers, such a measure would be not only unnecessary, but preposterous and dangerous."); Brutus, Alexandria VIRGINIA JOURNAL, December 6, 1787 (excerpt reprinted in Young, at 144) ("The powers which the people delegate to their rulers are completely defined, and if they should assume more than is there warranted they would soon find that there is a power in the United States of America paramount to their own, which would bring upon them the just resentment of an injured people."); Cassius XI, Boston MASSACHUSETTS
3. Federalists argue that bill of rights may imply federal government has power to infringe those rights not mentioned.
James Wilson, Pennsylvania Convention, November 28, 1787 (excerpt reprinted in Young, at 116) ("In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power
4. Federalists argue bill of rights not needed as Americans, used to freedom, would not allow infringement of rights.
Letter from William Pierce to St. George Tucker (September 28, 1787) (reprinted in Young, at 29) ("I set this down as a truth founded in nature, that a nation habituated to freedom will never remain quiet under an invasion of its liberties."); A CITIZEN OF PHILADELPHIA [Pelatiah Webster], THE WEAKNESS OF BRUTUS EXPOSED, November 8, 1787 (reprinted in Young, at 85) ("[S]hould they [Congress] assume tyrannical powers, and make incroachments on liberty without the consent of the people, they would soon attone for their temerity, with shame and disgrace, and probably with their heads."); The State Soldier, Richmond VIRGINIA INDEPENDENT CHRONICLE, January 16, 1788 (excerpt reprinted in Young, at 209) ("[T]here is nothing in this constitution itself that particularly bargains for a surrender of your liberties, it must be your own faults if you become enslaved. Men in power may usurp authorities under any constitution — and those they govern may oppose their tyranny."); Marcus, NORFOLK AND PORTSMOUTH JOURNAL, March 12, 1788 (excerpt reprinted in Young, at 297-98) ("It is in the power of the Parliament if they dare to exercise it, to abolish the trial by jury altogether — but woe be to the man who should dare to attempt it — it would undoubtedly produce an insurrection that would hurl every tyrant to the ground who attempted to destroy that great and just favorite of the English nation. We certainly shall be always sure of this guard at least, upon any such act of folly or insanity in our Representatives: They soon would be taught the consequence of sporting with the feelings of a free people."); Publius [Alexander Hamilton], The Federalist, No. 8, THE NEW YORK PACKET, November 20, 1787 (excerpt reprinted in Young, at 105-06) (footnote omitted) ("The smallness of the army renders the natural strength of the community an overmatch for it; and the citizens, not habituated to look up to the military power for [protection], or to submit to its oppressions, neither love nor fear the soldiery: They view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. The army under such circumstances, may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people.").
5. Federalists argue that federal power to maintain a standing army should not be feared because the American people are armed and hence could resist an oppressive standing army.
A CITIZEN OF AMERICA [Federalist Noah Webster], AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION (October 10, 1787) (reprinted in Young, at 40) ("Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States."); Essay on Federal Sentiments, PHILADELPHIA INDEPENDENT GAZETTEER, October 23, 1787 (excerpt reprinted in Young, at 57) ("If the president and the whole senate should happen to be the boldest wealthiest, most artful men in the union, supported by the most powerful connexions, and unanimous in the design of subduing the nation; and if by the concurrence of the representatives they obtained money and troops for the purpose; yet the whole personal influence of Congress, and their parricide army could never prevail over an hundred thousand men armed and disciplined, owners of the country, animated not only with a spirit of liberty, but ardent resentment against base treacherous tyrants."); Mr. Sedgwick, Massachusetts Convention, January 24, 1788 (excerpt reprinted in Young, at 230-31) ("It was, he said, a chimerical idea to suppose that a country like this could ever be enslaved. How is an army for that purpose to be obtained from the freemen of the United States? They certainly, said he, will know to what object it is to be applied. Is it possible, he asked, that an army could be raised for the purpose of enslaving themselves and their brethren? [O]r if raised, whether they could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?"); Aristides [Alexander Contee Hanson], REMARKS ON THE PROPOSED PLAN OF A FEDERAL GOVERNMENT, ADDRESSED TO THE CITIZENS OF THE UNITED STATES OF AMERICA, AND PARTICULARLY TO THE PEOPLE OF MARYLAND, January 31, 1788 (excerpt reprinted in Young, at 240) ("If indeed it be possible in the nature of things, that congress shall, at any future period, alarm us by an improper augmentation of troops, could we not, in that case, depend on the militia, which is ourselves."); A Pennsylvanian III [Tench Coxe], Philadelphia PENNSYLVANIA GAZETTE, February 20, 1788 (excerpt reprinted in Young, at 275-76) ("The power of the sword, say the minority of Pennsylvania is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared to any possible army must be tremendous and irresistable. Who are these militia? [A]re they not our selves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or foedral constitution hath given away that important right.... I do not hesitate to affirm, that the unlimited power of the sword is not in the hands of either the foedral or state governments, but, where I trust in God it will ever remain, in the hands of the people."); Foreign Spectator, REMARKS on the Amendments to the federal Constitution, proposed by the Conventions of Massachusetts,
Madison expresses largely the same thought in Federalist No. 46, as follows: "Extravagant as the supposition is, let it, however, be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. ... Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power [Europeans] would be to rescue theirs from the hands
6. Federalist argue that federal militia powers obviated the need for and minimized the likelihood of there being a large standing army.
In Federalist No. 29 Hamilton states: "If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of national security. If standing armies are dangerous to liberty, an efficacious power over the militia in the same body ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary will be a more certain method of preventing its existence than a thousand prohibitions upon paper." (The Federalist Papers, Rossiter, New American Library, at 183). See also James Madison, Virginia Convention, June 14, 1788 (excerpt reprinted in Young, at 400, 402, 404): "If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed, to suppress and repel them, rather than a standing army. The best way to do these things was to put the militia on a good and sure footing, and enable the government to make use of their services when necessary.... [After a response by George Mason] The most effectual way to guard against a standing army, is to render it unnecessary. The most effectual way to render it unnecessary, is to give the general government full power to call forth the militia, and exert the whole natural strength of the Union, when necessary.... If you limit their [the federal government's] power over the militia, you give them a pretext for substituting a standing army."
ROBERT M. PARKER, Circuit Judge, specially concurring:
I concur in the opinion except for Section V. I choose not to join Section V, which concludes that the right to keep and bear arms under the Second Amendment is an individual right, because it is dicta and is therefore not binding on us or on any other court. The determination whether the rights bestowed by the Second Amendment are collective or individual is entirely unnecessary to resolve this case and has no bearing on the judgment we dictate by this opinion. The fact that the 84 pages of dicta contained in Section V are interesting, scholarly, and well written does not change the fact that they are dicta and amount to at best an advisory treatise on this long-running debate.
As federal judges it is our special charge to avoid constitutional questions when the outcome of the case does not turn on how we answer. See Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944)("If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable."); Walton v. Alexander, 20 F.3d 1350, 1356 (5th Cir.1994)(Garwood, J., concurring specially)("It is settled that courts have a strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration.")(internal quotations omitted). Following this cardinal rule, we will
No doubt the special interests and academics on both sides of this debate will take great interest in the fact that at long last some court has determined (albeit in dicta) that the Second Amendment bestows an individual right. The real issue, however, is the fact that whatever the nature or parameters of the Second Amendment right, be it collective or individual, it is a right subject to reasonable regulation. The debate, therefore, over the nature of the right is misplaced. In the final analysis, whether the right to keep and bear arms is collective or individual is of no legal consequence. It is, as duly noted by the majority opinion, a right subject to reasonable regulation. If determining that Emerson had an individual Second Amendment right that could have been successfully asserted as a defense against the charge of violating § 922(g)(8), then the issue would be cloaked with legal significance. As it stands, it makes no difference. Section 922(g)(8) is simply another example of a reasonable restriction on whatever right is contained in the Second Amendment.
And whatever the scope of the claimed Second Amendment right, no responsible individual or organization would suggest that it would protect Emerson's possession of the other guns found in his military-style arsenal the day the federal indictment was handed down. In addition to the Beretta nine millimeter pistol at issue here, Emerson had a second Beretta like the first, a semi-automatic M-1 carbine, an SKS assault rifle with bayonet, and a semi-automatic M-14 assault rifle. Nor would anyone suggest that Emerson's claimed right to keep and bear arms supercedes that of his wife, their daughter, and of others to be free from bodily harm or threats of harm. Though I see no mention of it in the majority's opinion, the evidence shows that Emerson pointed the Beretta at his wife and daughter when the two went to his office to retrieve an insurance payment. When his wife moved to retrieve her shoes, Emerson cocked the hammer and made ready to fire. Emerson's instability and threatening conduct also manifested itself in comments to his office staff and the police. Emerson told an employee that he had an AK-47 and in the same breath that he planned to pay a visit to his wife's boyfriend. To a police officer he said that if any of his wife's friends were to set foot on his property they would "be found dead in the parking lot."
If the majority was only filling the Federal Reporter with page after page of non-binding
Emerson, correctly, filled in the answer "no" to each of questions 8b through 8k.
Just below section 8 of the form, and just above where Emerson signed the form, is a five line certificate, all in bold faced and capital letters, which includes the statement: "I understand that a person who answers `yes' to any of the questions 8b through 8k is prohibited from purchasing or possessing a firearm."
The "important Notice 4 and Definition 4" to which question 8j refers the purchaser is set out on the back of the form as follows:
We also note that paragraph (8) of § 922(g) became law in September 1994, P.L. 103-322, Sec. 110401(c), 108 Stat. 1796, 2014-2015, 2151, approximately three years prior to Emerson's acquisition of the firearm in question and approximately four years prior to the September 14, 1998 order.
Emerson did not contend below, and does not contend on appeal, that the pistol had not traveled in interstate or foreign commerce after the 1994 enactment of the current version of § 922(g)(8). We also note that Emerson's 1997 purchase of the pistol was apparently from a federally licensed firearms dealer, although any possible relevance of that to the issue of congressional Commerce Clause power has not been raised by either party here or below. See United States v. Lopez, 2 F.3d 1342, 1348 & n. 9 (5th Cir.1993), affirmed, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Emerson's Commerce Clause challenge as presented below and on appeal, and the government's and the district court's response thereto, does not address either of those matters, and we do not address either of them. Emerson has not demonstrated error in the district court's denial of his pretrial motion to dismiss under the Commerce Clause.
Even assuming, as we do, that the instant firearm traveled in interstate commerce after the September 1994 enactment of § 922(g)(8), and though we are bound by our prior precedent, it nevertheless appears to us that the founding generation would have regarded as clearly illegitimate any construction of the Commerce Clause which allowed federal prohibition of mere passive, non-commercial, personal possession of a firearm acquired in accordance with federal (as well as state) law which thereafter always remained within the state in which it was acquired.
Not every proponent of this model conceives of it in exactly the same way. For example, Heyman and Uviller argue that the Second Amendment simply guarantees that the federal government will not do anything to destroy the militia.
In United States v. Warin, 530 F.2d 103, 106 (6th Cir.1976), also discussed in note 19, infra, the Sixth Circuit stated: " `Since the Second Amendment right "to keep and bear Arms" applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.'" Id. (quoting Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971)).
In Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir.1999), a police officer convicted of a misdemeanor crime of domestic violence was fired because, under 18 U.S.C. § 922(g)(9), he could no longer possess a firearm and was, as a result, unable to perform his duties. He brought suit against the city officials and challenged the constitutionality of § 922(g)(9) on, inter alia, Second Amendment grounds. The Seventh Circuit rejected the challenge, noting that the Second Amendment's introductory clause "suggests" that it "inures not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia." Id. at 710. Despite the collective nature of the Second Amendment, the court found the plaintiff had standing to mount his Second Amendment challenge. Id. at 711. The court also said that the Second Amendment was not violated because under no "plausible set of facts" would "the viability and efficacy of state militias ... be undermined by prohibiting those convicted of perpetrating domestic violence from possessing weapons in or affecting interstate commerce." Id.
Hickman v. Block, 81 F.3d 98, 99 (9th Cir. 1996), involved another § 1983 suit by a citizen against state officials who denied his application for a concealed weapons permit. The Ninth Circuit decided to "follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen." Id. at 101. Thus, the plaintiff's lack of standing was dispositive, though the court did note that the Second Amendment "is not incorporated against the states." Id. at 103 n. 10.
In United States v. Rybar, 103 F.3d 273, 286 (3d Cir.1996), the Third Circuit held that Rybar's membership in the general, unorganized militia established by 10 U.S.C. § 311(a) did not cause his possession of a machine gun to be so connected with militia activity that the Second Amendment applied. While Rybar was not clear about whether it was adopting the states' rights view or the sophisticated collective rights view, it seems more consistent with the latter.
In United States v. Hale, 978 F.2d 1016 (8th Cir.1992), the Eighth Circuit found it unnecessary to commit to either the states' rights or the sophisticated collective rights model of the Second Amendment. The court proclaimed that "[c]onsidering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons." Id. at 1019. Yet, the court went on to consider whether the defendant's actual possession of machine guns was "reasonably related to the preservation of a well regulated militia." Id. at 1020. Like the Third Circuit in Rybar, the Eighth Circuit held that membership in an unorganized militia did not satisfy the reasonable relationship test. The court felt that unless the reasonable relationship test was satisfied, it was "irrelevant" whether the Second Amendment was collective or individual in nature. Id. However, the court's inquiry into the nature of the defendant's possession of the machine guns is more compatible with the sophisticated collective rights model.
United States v. Oakes, 564 F.2d 384 (10th Cir.1977), is similar to Rybar. In Oakes the Tenth Circuit first rebuffed the individual rights view of the Second Amendment, then rejected defendant's argument that, because he was "technically" a member of the Kansas militia, as Kansas law defined its militia to include all able-bodied male citizens between ages 21 and 45, his possession of a machine gun preserved the effectiveness of the militia such that the Second Amendment applied. The court did not specify whether the Second Amendment was an individual right of extremely limited scope or whether it protected only states rather than individuals; however, the court's willingness to address the defendant's state militia argument is more in accord with the sophisticated collective rights model.
United States v. Wright, 117 F.3d 1265 (11th Cir.1997), is similar to, and relied upon, Hale. The court held that the defendant's membership in Georgia's "unorganized militia"(defined as all able-bodied males between ages 17 and 45 not in the organized or retired militia-or national guard-or on the reserve list) did not render his possession of machine guns and pipe bombs so related to the preservation of a well regulated militia that it was necessary to determine whether the Second Amendment "creates" a collective or individual right. Id. at 1273-74 & n. 18. The court also stated that "[t]he possibility that in responding to a future crisis state authorities might seek the aid of members of the unorganized militia does not speak to the militia's current state of regulation." Again, this approach is consistent with the sophisticated states' rights model.
For further discussion of the sophisticated collective rights model, see Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 YALE L.J. 995, 1003-1004 (1995) and Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 TEX. REV. L. & POL. 157, 184-86 (1999).
The Miller opinion cites Robertson. Miller, 59 S.Ct. at 820 n. 3.
Further, in Cases v. United States, 131 F.2d 916, 922 (1st Cir.1942), the First Circuit interpreted Miller as resting entirely on the type of weapon involved not having any reasonable relationship to preservation or efficiency of a well regulated militia. The Cases court, however, stated that "we do not feel that the Supreme Court in this case [Miller] was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go." Id., 131 F.2d at 922. Cases thereafter observes:
Cases then goes on, without further analysis or citation of authority, to conclude that although the weapon there involved (a .38 caliber revolver) "may be capable of military use, or ... familiarity with it ... of value in training a person to use a comparable weapon of military type," nevertheless the Second Amendment was not infringed because "there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon ... was in preparation for a military career" but he was rather "simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second Amendment was designed to foster...." Id. at 922-23.
In United States v. Warin, 530 F.2d 103 (6th Cir.1976), the court (rejecting a Second Amendment challenge to a conviction for possessing an unregistered 7½ inch barrel submachine gun contrary to the National Firearms Act), though concluding that " `the Second Amendment right' `to keep and bear arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms,'" nevertheless recognized that this conclusion was not based on Miller, stating that Miller "did not reach the question of the extent to which a weapon which is `part of the ordinary military equipment' or whose `use could contribute to the common defense' may be regulated" and agreeing with Cases "that the Supreme Court did not lay down a general rule in Miller." Id., 530 F.2d at 105-06. The court also stated that the Second Amendment, even if it protected individual rights, "does not constitute an absolute barrier to the congressional regulation of firearms," noting that "even the First Amendment has never been treated as establishing an absolute prohibition against limitations on the rights guaranteed therein." Id. at 107.
This does not suggest a collective rights or sophisticated collective rights approach to the Second Amendment any more than does Miller itself. We also note that recognition that the Second Amendment does not prohibit legislation such as former § 1202(a)(1) is in no way inconsistent with an individual rights model. See, e.g., Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 329, 41 L.Ed. 715 (1897) (quoted in note 17, supra) (bill of rights protections are not absolutes but subject to exceptions, so the First Amendment does not permit the publication of libels, the Second Amendment "is not infringed by laws prohibiting the carrying of concealed weapons," the double jeopardy clause does not preclude retrial where the jury fails to agree, the confrontation clause does not exclude dying declarations, etc.). See also Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 OKLA L.REV. 65, 96 (1983) ("Colonial and English societies of the eighteenth century, as well as their modern counterparts, have excluded infants, idiots, lunatics, and felons [from possessing firearms]."); Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms", 49 LAW & CONTEMP. PROBS. 151 (1986) ("violent criminals, children, and those of unsound mind may be deprived of firearms...."); Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 266 (1983) ("Nor does it seem that the Founders considered felons within the common law right to arms or intended to confer any such right upon them."). We further observe that Lewis presented no Second Amendment challenge to the § 1202(a)(1) conviction and the Second Amendment was not at issue there.
The government also cites in this connection our decisions in United States v. Williams, 446 F.2d 486 (5th Cir.1971), and United States v. Johnson, 441 F.2d 1134 (5th Cir.1971), but these National Firearms Act unregistered sawed-off shotgun prosecutions do no more than apply Miller to virtually identical facts and do not adopt or suggest that Miller adopted a collective rights or sophisticated collective rights approach to the Second Amendment.
It is also plain that the First Congress knew full well how to distinguish between "the people" and the states, e.g. amend. X.
The same language is quoted with approval in Justice White's Moore dissent. Id., 97 S.Ct. at 1957-58. An earlier portion of the Casey opinion speaks of rejecting the notion that Fourteenth Amendment "liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments." Id. at 2804-05 (emphasis added).
This is consistent with the Court's earlier observation respecting § 26 that "although this right must be inviolably preserved, yet it does not follow that the Legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed." (emphasis added). A "military" connotation is given to "bear" and to some extent to "arms" but not to "keep." Beyond such connection as may arise from the general type of weapon, no character of military status or activity whatever was required to come within the protected right to "keep ... arms;" that right was "unqualified;" though "the right to bear arms is not of that unqualified character."
We also observe the various particular provisions of the bill of rights of many early state constitutions contained introductory justification clauses, usually in the form of a general statement of political or governmental philosophy. Examples are given in Volokh, COMMONPLACE SECOND AMENDMENT, supra n. 10, 794-95, 814-21. One such example is the provision of the New Hampshire Constitution of 1784 (pt. 1, art. XVII) stating: "[i]n criminal prosecutions, the trial of facts in the vicinity where they happen is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed...." It would be absurd to construe this provision to apply only when a judge agrees with the defendant that trial of the case in another county would likely jeopardize that particular defendant's life, liberty or estate.
The Militia Act of 1792, enacted May 8, 1792, defined the militia as "each and every free able-bodied white male citizen ... who is or shall be of age eighteen years, and under the age of forty-five years...." and required each to "provide himself with a good musket ... or with a good rifle ..." 1 Stat. 271 (1792).
The modern militia statute, 10 U.S.C. § 311 provides:
Virginia's proposed Bill of Rights included a similar provision: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state...." 3 Jonathan Elliot, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 659 (2d ed., 1836). North Carolina proposed a virtually identical provision, 4 Jonathan Elliot, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 244 (2d ed., 1836), as also did New York, New York Convention, July 26, 1788, reprinted in Young, supra, at 480-88.
"A well regulated and disciplined militia, is at all times a good objection to the introduction of that bane of all free governments-a standing army." Governor John Hancock, NEW YORK JOURNAL, January 28, 1790, reprinted in Young, supra, at 731.
The other portions of what became the Fifth and Sixth Amendments, as well as what became the Seventh Amendment, Madison's proposal would have as additions to Article III, § 2.
Madison's proposal called for what became the Tenth Amendment to be (together with a separation of powers provision) in a new Article VII, with existing Article VII to be renumbered Article VIII.
Madison also proposed to amend Art. I, § 2, cl. 3 (number of representatives), Art. I, § 6, cl. 1 (compensation of representatives), and Art. I, § 10 (to prohibit states from denying equal rights of conscience, freedom of the press or jury trial in criminal cases).
"That each state, respectively, shall have the power to provide for organizing, arming, and disciplining, its own militia, whensoever Congress shall omit or neglect to provide for the same; that the militia shall not be subject to martial law, except when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state." JOURNAL OF THE FIRST SESSION OF THE SENATE 75 (Washington, D.C.1820).
In Houston v. Moore, 18 U.S. [5 Wheat.] 1, 5 L.Ed. 19 (1820), the Supreme Court held that states retain the power to organize, arm, and discipline their militias provided that the exercise thereof is not repugnant to the authority of the Union. The Court reasoned that because the Constitution failed to divest the states of their preexistent militia powers, such powers remained. Id. 5 L.Ed. at 22-23. The majority did not rely upon or even refer to the Second Amendment.
The only mention of the Second Amendment was by Justice Story in his dissent, wherein he observed that the Second Amendment probably did not have "any important bearing" on the question of whether states had power to organize, arm, and discipline their militias. Id. 5 L.Ed. at 31.
It seems likely that if the Second Amendment was intended only to grant the states concurrent power to organize, arm, and discipline their militias, the Supreme Court would have relied, at least in part, upon the Second Amendment for its holding. As it happened, the only mention of the Second Amendment was by the dissent in pointing out the Second Amendment's probable irrelevance to the state militia powers issue.
"18 U.S.C. § 922(g)(8) is unconstitutional because it allows a state court divorce proceeding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights.... All that is required for prosecution under the Act is a boilerplate order with no particularized findings. Thus, the statute has no real safeguards against an arbitrary abridgement of Second Amendment rights. Therefore, by criminalizing protected Second Amendment activity based upon a civil state court order with no particularized findings, the statute is over-broad and in direct violation of an individual's Second Amendment rights.
By contrast, § 922(g)(8) is different from the felon-in-possession statute, 18 U.S.C. § 922(g)(1), because once an individual is convicted of a felony, he has by his criminal conduct taken himself outside the class of law-abiding citizens who enjoy full exercise of their civil rights. Furthermore, the convicted felon is admonished in state and federal courts that a felony conviction results in the loss of certain civil rights, including the right to bear arms. This is not so with § 922(g)(8)....
It is absurd that a boilerplate state court divorce order can collaterally and automatically extinguish a law-abiding citizen's Second Amendment rights, particularly when neither the judge issuing the order, nor the parties nor their attorneys are aware of the federal criminal penalties arising from firearm possession after entry of the restraining order."
United States v. Emerson, 46 F.Supp.2d 598, 610-11 (N.D.Tex.1999).
We likewise reject the implied criticism (in the special concurrence's fourth paragraph) for not mentioning certain "facts" not alleged in the indictment, not found to be true by any trier of fact, and not relevant to the section 922(g)(8) violation alleged. The district court dismissed the indictment and Emerson has not yet been convicted of anything. In fact, we have been informed that he has been acquitted of state charges relating to the matter mentioned in the special concurrence.