http://www.nraila.org/research/20000120-SecondAmendment-001.shtml
SUMMARY OF ARGUMENT
The statute at issue in this case, 18 U.S.C. Sec. 922(g)(8), was intended to prevent persons with a demonstrated history of domestic violence from possessing firearms while under a valid restraining order. The government now contends that the statute also applies to a pro forma order entered in a state divorce proceeding without any judicial finding that the person subject to the order had ever engaged in domestic abuse, or was likely ever to do so. The court below
correctly concluded that such a sweeping and arbitrary infringement on the right to keep and bear arms violates the Second Amendment.
No court has ever approved a federal statute imposing a complete deprivation of the right to possess firearms without a particularized finding of some disabling characteristic. Nor could a court have done so, for Congress has never before enacted such a statute. The cases cited by the government in its brief all relate to restrictions on narrow categories of weapons or to settled categories of disqualified persons such as convicted felons. This Court should make no mistake about the difference between those cases and this one: the government is now asking for a radical extension of federal power when it insists on disarming law-abiding American citizens simply because they are involved in divorce proceedings.
After briefly reviewing the meaning of the Second Amendment, we will demonstrate that the case law on which the government relies does not compel this Court to adopt an interpretation of the Constitution that is at odds with its text and history.
ARGUMENT
I. The Second Amendment protects the fundamental, individual right to keep and bear arms.
The Second Amendment provides: "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." Notwithstanding the confusion about this text engendered by twentieth-century debates over gun control, its meaning was perfectly clear to those who framed and ratified it, and to virtually every serious legal commentator during the first century of the Constitution's existence. The Second Amendment simply forbids the federal government from infringing the right of individual American citizens to keep and bear arms, and this prohibition contributes to fostering "a well regulated militia" by preserving the armed citizenry from which the framers believed that such a militia should be drawn. Like every other provision of the Bill of Rights, the Second Amendment has its limits. But, like every other provision of the Bill of Rights, the Second Amendment must mean something. The Second Amendment will
mean nothing if the government can arbitrarily disarm American citizens who have never been shown to be dangerous or irresponsible.
A. The text and history of the Second Amendment are consistent and unambiguous.
The Second Amendment unequivocally states that "the right of the people to keep and bear arms shall not be infringed." Modern scholarship has repeatedly and conclusively demonstrated that this is a right belonging to individuals, just like the "right(s) of the people" set out in the First and Fourth Amendments. See, e.g., Laurence H. Tribe, 1 American Constitutional Law 902 n. 221 (2000) (Second Amendment recognizes "a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes.") The Constitution's unequivocal statement is not qualified or diminished by the prefatory phrase, "A well regulated Militia, being necessary to the security of a free State . . ." Such prefatory statements of purpose were very common in state constitutions with which the framers were familiar, and they were never interpreted to detract from the operative clauses to which they were appended. Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998) (discussing dozens of examples). Any attempt to use this prefatory language to
recast the individual right as some sort of collective or governmental right leads to intolerable textual difficulties, and even outright absurdities. See, e.g., William Van
Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994); Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 Ga. L. Rev. 1, 20-29 (1996); Reynolds & Kates, The Second Amendment and States' Rights: A Thought Experiment, 36 Wm. & Mary L. Rev.
1737 (1995).
As the constitutional text suggests, the right of the individual to keep and bear arms was closely associated by the framers with the militia tradition that the American
colonists brought with them from England. Many Americans of the late eighteenth century were mistrustful of standing armies, and the Federalists and Anti-Federalists were agreed on at least one fundamental point: liberty was more secure on these shores than in England because the American people were armed.
James Madison, for example, excoriated the European governments that were "afraid to trust the people with arms" and stressed "the advantage of being armed, which the Americans possess over the people of almost every other nation." The Federalist No. 46, at 299 (C. Rossiter, ed. 1961). Patrick Henry, who opposed ratification of the Constitution partly because he feared the specter of federal control over weapons and their use, similarly proclaimed: "The great object is that every man be armed. . . . Everyone who is able may have a gun." 3 J. Elliot, Debates in the Several State Conventions 45 (2d ed. 1836).
The militia tradition with which the Framers associated the right to keep and bear arms was fundamentally different from our contemporary National Guard system.
As the Supreme Court has recognized, the eighteenth century militia "comprised all males physically capable of acting in concert for the common defense." United States v. Miller, 307 U.S. 174, 179 (1939). This was not a legal definition, and in fact the Constitution provides no definition of the militia. But the legal definition adopted in the first Militia Act was perfectly consistent with the spirit of this formulation. Act of May 8, 1792, ch. 33, 1 Stat. 271 (requiring militia enrollment for
most able-bodied white males between the ages of 17 and 45). To this very day, Congress has continued to define the militia so that it includes almost all men
between the ages of 17 and 45. 10 U.S.C. Sec. 311.
For the framers, the militia was always put in sharp contrast with standing military organizations of any kind. See, e.g., Articles of Confederation art. VI, para. 4; 3
J. Elliot, Debates in the Several State Conventions 425 (3d ed. 1937) (statement of George Mason, June 14, 1788) ("Who are the Militia? They consist now of the whole people. . . ."); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 148 (Harvard University Press 1994)
("Because of their long-standing prejudice against a select militia as constituting a form of standing army liable to be skewed politically and dangerous to liberty,
every state had (in the post-Revolutionary period) created a general militia."). It was hoped that government would provide military training so that the militia could operate effectively when the need arose, but this training was not a sine qua non for the existence of the militia. The essential character of the militia lay in two
fundamental qualities: that it remained inactive until a need for its services arose, and that it remained armed while in its usual inactive state. See, e.g., Miller, 307
U.S. at 179 ("(O)rdinarily when called for service these (militia) men were expected to appear bearing arms supplied by themselves and of the kind in common use
at the time.")
The purpose of the Second Amendment is not and cannot be to ensure that the militia receives adequate military training from the government. The government had already been given the power to provide for such training. U.S. Const. art. I, Sec. 8, cl. 16. Nor does the Second Amendment purport to require that this congressional power be exercised responsibly, or indeed exercised at all. The more well-trained the militia was, the more effective it would be, and so the less often
would circumstances require the raising of real armies consisting of full-time, paid troops. And since standing armies were seen as a dangerous tool that would-be tyrants might use to oppress the people, a well-trained militia was widely viewed as a desirable goal, so long as the militia retained its essentially civilian character.
See, e.g., The Federalist No. 29, at 183 (A. Hamilton). But the Constitution gave the federal government virtually unlimited authority to raise armies, and it imposed no requirement that the militia receive effective training. See U.S. Const. art. I, Sec. 8, cls. 12-16. The framers consciously considered and rejected a constitutional provision discouraging peace-time standing armies, and they no doubt recognized that it would be infeasible to write a constitutional rule requiring that the militia be well trained. See 2 Max Farrand, The Records of the Federal Convention 616-17 (1911).
What the Second Amendment does for the militia is to ensure that "the people," from which the militia must be drawn, can remain armed while the militia is in its normal, inactive state. This is why theConstitution's reference to a "well regulated militia" does not mean organizations like our National Guard. Eighteenth century readers, unfamiliar with the modern administrative state, would naturally have recognized that "well regulated" does not necessarily mean "heavily regulated." Rather,
it can just as easily mean "not overly regulated" or "not inappropriately regulated." This insight is crucial to understanding the prefatory language of the Second Amendment. A "well regulated" militia is, among other things, not inappropriately regulated. The Second Amendment simply forbids one form of inappropriate
regulation that the government might be especially tempted to promulgate: disarming the civilian population from which the militia must be drawn. See Nelson Lund,
The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Politics 157 (1999).
Article I authorizes the federal government to adopt a wide range of militia regulations, such as requiring civilians to possess arms and requiring them to undergo military training. See, e.g., Act of May 8, 1792, ch. 33, 1 Stat. 271. The Second Amendment is not a foolish redundancy on Article I, but an important prohibition against the one intolerable form of regulation: civilian disarmament.
B. The right to keep and bear arms continues to serve its constitutional purpose in contemporary America.
A civilian population that is protected from the threat of disarmament contributes to "the security of a free state" in two principal ways. First, the very existence of an
armed citizenry will tend to discourage would-be tyrants from attempting to use paid troops to "pacify" the population. This is not and could not be a guarantee against tyranny, but it surely raises the risks and costs of a tyrannous pacification, and thereby reduces the probability of its being attempted. See, e.g., Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 657 & n.96 (1989). Second, and no less important, an armed citizenry is much less
dependent on the government for protection from the hazards of everyday life, both in a world (like that of the eighteenth century) where organized police forces did not exist, and in a world (like ours) in which the police can almost never put a stop to crimes in progress.
It may be true that we have less reason to fear standing armies today. It is certainly true that our reliance on the traditional militia system for national defense and law
enforcement has declined. But unreasonable gun control policies could still facilitate the tyrannical oppression of political minorities, as they have in the past. See,
e.g., Cottrol & Diamond, The Second Amendment: Toward an Afro- Americanist Reconsideration, 80 Georgetown L.J. 309 (1991). And even if one discounts such dangers, the constitutional right to arms contributes to "the security of a free state" in a second way.
As the Founders were well aware, the right of civilians to arm themselves enables citizens to exercise their fundamental, natural right to self-defense when they are
threatened with criminal attack. See, e.g., Don B. Kates, The Second Amendment and the Ideology of Self-Protection, 9 Const. Commentary 87 (1992). The most reliable studies indicate that armed civilians defend themselves against criminal violence over two million times each year. Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 164 (1995). Simply displaying a weapon is
almost always sufficient to stop an attack, though armed civilians (who far outnumber the police) also shoot many more criminals than the police do. Gary Kleck, Targeting Guns: Firearms and their Control 162, 163 (Aldine de Gruyter 1997). In addition, the widespread civilian ownership of firearms in the United States creates powerful deterrent effects on criminal activity. Burglaries of occupied dwellings, for example, are rare in the United States compared with Canada and Great
Britain. Id. at 183. The recent wave of liberalized concealed-carry laws has produced dramatic declines in violent crime in Texas and the other states that have adopted this policy. John R. Lott, Jr., More Guns, Less Crime: Understanding Crime and Gun Control Laws (University of Chicago Press 1998). Among the greatest beneficiaries of this policy have been women (who are more physically vulnerable than men) and minorities (who tend to live in areas where violent crime rates are higher). Id. at 60-70.
None of this implies that the Second Amendment prevents Congress from adopting reasonable measures to prevent the misuse of firearms. On the contrary, just as there are many permissible restrictions on free speech--ranging from laws against perjury and fraud, to restrictions on obscenity and child pornography--so there
are numerous ways in which government may regulate exceptionally dangerous weapons and prevent dangerous persons (such as juveniles, violent felons, and the mentally ill) from possessing guns at all. But all such laws must be narrowly tailored to serve compelling public purposes, and all such laws must be subject to strict scrutiny by the courts. A statute arbitrarily imposing a complete and automatic firearms disability on a citizen who has merely been told to obey the law in a pro forma divorce court order, without any finding of past or future dangerousness, simply cannot survive constitutional scrutiny. If it could, the government would be free to impose the same disability on all Americans--any of whom might someday break the law--or on any disfavored subset of the population. If that could be done, the Second Amendment would protect only those rights that the government chose not to infringe. This absurd conclusion is inconsistent with the constitutional text and with everything the Framers said about the right to keep and bear arms.
II. Supreme Court precedent does not support the constitutionality of the government's attempted application of section 922(g)(8).
The Supreme Court has issued only one opinion dealing with a Second Amendment challenge to a federal statute: United States v. Miller, 307 U.S. 174 (1939). Before turning to that case, we should note that the government's repeated reliance on a dictum in Lewis v. United States, 445 U.S. 55, 65 n.8 (1980), is entirely misplaced. The Second Amendment was not at issue in Lewis, which dealt with an equal-protection challenge to the federal statute forbidding felons to possess firearms. In the course of its equal-protection analysis, the Court dropped a footnote that included a passing reference to Miller. Although the citation to Miller was inapposite, the Lewis Court's actual decision upholding the federal felon-in- possession statute was perfectly consistent with Second Amendment protection of the
rights of law-abiding citizens. As Lewis noted, 445 U.S. at 66, even the most fundamental of rights, like voting, can be taken away from convicted felons.
The government's extensive discussions of dicta in cases dealing with Second Amendment challenges to state laws are also misplaced. During the nineteenth century, the Supreme Court held that the Bill of Rights, including the Second Amendment, applies only to the federal government. See, e.g., United States v. Cruikshank, 92 U.S. 542 (1875); Presser v. Illinois, 116 U.S. 252 (1886). That Court has subsequently held that some parts of the Bill of Rights (but not others) also constrain state governments by virtue of "incorporation" through the Fourteenth Amendment's Due Process Clause. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147-50 (1968). The Supreme Court has never decided whether the Second Amendment is "incorporated," and courts have continued to apply the holdings in Cruikshank and Presser. See, e.g., Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983); Love v.
Pepersack, 47 F.3d 120 (4th Cir.), cert. denied, 516 U.S. 813 (1995). The case before this Court, however, involves a federal statute, which renders Cruikshank and Presser (and lower court decisions, like Quilici and Love, that follow their holdings) simply irrelevant.
A. The Miller decision.
In United States v. Miller, two men were indicted for violating the National Firearms Act of 1934 by transporting an unregistered short-barreled (or sawed-off) shotgun across state lines. The District Court quashed the indictment, holding without explanation that the statute was inconsistent with the Second Amendment. The government appealed to the Supreme Court, which ruled for the government without hearing any argument on behalf of the defendants.
The Miller opinion is short and cryptic, and its holding must be interpreted narrowly. Most of the Court's opinion is devoted to a discussion of the Framers' understanding of the militia, which the Court characterized as "civilians primarily, soldiers on occasion." 307 U.S. at 179. Without raising any question as to whether the defendants in the case were members of the militia, the Court rested its holding on the presumed nature of sawed-off shotguns:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear
such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the
common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
Id. at 178. This statement of the holding is both tentative and indefinite. The Court does not say that short-barreled shotguns fall outside the Second Amendment, but only that the Court has not been provided with a persuasive reason to regard them as protected. The Court does not say that military weapons alone are protected by the Second Amendment, but only that protected weapons must at least have some ability to contribute to "the common defense." The Court does not say that "the common defense" comprehends only foreign invaders, thus allowing for the usefulness of privately owned firearms against domestic insurrections, for ordinary law enforcement, and for self-defense against criminal attacks. And perhaps most important, the Court never embraces the erroneous suggestion, repeatedly suggested by the government in this case, that the "militia" means a military organization like the National Guard.
B. Miller accepted the individual right interpretation of the Second Amendment.
Miller clearly, if implicitly, acknowledged that the Second Amendment protects the individual right of citizens to keep and bear arms. This is clear from the face of
the Court's opinion, which never asked whether the defendants in that case were members of the National Guard, or of the militia. Nor did the Court suggest that
defendants' status as members of the militia would have had the slightest bearing on the outcome of the case. As the Justices saw it, the only issue in the case was whether the defendants had a right to possess a particular type of weapon in violation of a federal registration requirement. Furthermore, the Court remanded the
case, thereby offering the defendants an opportunity to provide evidence demonstrating exactly what the Supreme Court had been unwilling to take judicial notice
of: that short-barreled shotguns "could contribute to the common defense."
Nor can it be supposed that the Court somehow overlooked the possibility that Second Amendment rights belong only to members of the National Guard or the
militia. On the contrary, the government's brief (the only brief filed in Miller) specifically, repeatedly, and forcefully argued that the right to arms applies only to
members of military organizations. See Brief of the United States, Miller (No. 696), at 4-5, 12, 15, 16. The Supreme Court refused to accept the government's argument.
C. Miller's holding applies only to weapons peculiarly adapted to criminal purposes.
The Miller opinion must be read cautiously and narrowly, in part because some of its language seems to carry implications that the Court could not have intended. The last sentence in the quotation set forth above, for example, appears to assume that private possession of weapons that constitute "any part of the ordinary military equipment" is per se protected by the Second Amendment. In 1939, this would have included fully automatic rifles, mortars, and bazookas. Indeed, as the First Circuit pointed out shortly thereafter, it would have to include the sawed-off shotguns at issue in Miller itself, as well as almost any gun except militarily useless antique weapons like flintlock muskets. Cases v. United States, 131 F.2d 916, 922 (1942), cert. denied, 319 U.S. 770 (1943).
Reading Miller in light of the facts of the case, as one must, it is clear that the Court meant its holding to extend no farther than the National Firearms Act itself extended, namely to the regulation of short-barreled shotguns and rifles, machine guns, and silencers. These devices have only one characteristic in common. They
appear to be particularly well-suited to criminal uses, and ill-suited to legitimate civilian purposes. This, at any rate, is certainly the view that Congress adopted, and
to which the Miller Court provisionally deferred.
We know this, first, because the government's brief in Miller strongly emphasized that the National Firearms Act was directed at weapons that "clearly have no
legitimate use in the hands of private individuals but, on the contrary frequently constitute the arsenal of the gangster and the desperado." Brief for the United States,
Miller (No. 696), at 5; see also id. at 7-8 (extensive excerpt from legislative history discussing "gangster" use of machine guns); 8 ("weapons which are the tools of the criminal"); 18 ("weapons which are commonly used by criminals"); 20 ("arsenal of the 'public enemy' and the 'gangster'").
In addition, the "criminal's weapon" theory is the only way to make sense of the Miller Court's otherwise inapposite citation to the Tennessee Supreme Court's opinion in Aymette v. State. See Miller, 307 U.S. at 178 (quoted above). The Tennessee court, which was construing a state constitutional provision that had a substantially different wording from the Second Amendment, could hardly have provided authority for any general interpretation of the Second Amendment. The
only reason Aymette might have been relevant to the Miller case is that it dealt with certain knives that the Tennessee court said were "usually employed in private
broils, and which are efficient only in the hands of the robber and the assassin." It is no accident that this language, which was quoted in the government's Miller Brief, at 19, occurs on exactly the page of Aymette cited by the Supreme Court in Miller. Compare 307 U.S. at 178 (quoted above) with Aymette, 2 Humphr. (Tenn.) at 156.
Under Miller, Congress may protect the public safety with measures designed to prevent criminals from acquiring weapons that are especially well suited to criminal
purposes and that have few legitimate civilian purposes. The statute at issue in Miller involved plausible examples of such weapons (sawed-off shotguns and rifles,
machine guns, and silencers), and the statute placed relatively limited obstacles (registration and a tax) in the path of the civilian who might have a genuine and
legitimate need for such weapons. Miller, 307 U.S. at 175 n.1 (quoting National Firearms Act). Whatever Miller may imply about more stringent regulation of such
weapons, no reasonable reading of Miller can possibly justify the government's current effort to impose a complete firearms disability on any citizen who becomes subject to a routine divorce court restraining order, unsupported by any finding of past or future dangerousness.
III. The Fifth Circuit precedents cited by the government do not address the issue in this case.
Contrary to the government's startling assertions about stare decisis, this case differs fundamentally from United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971), and United States v. Williams, 446 F.2d 486 (5th Cir. 1971). Both Johnson and Williams involved prosecutions for unlawful possession of an unregistered sawed- off shotgun, which was exactly the same issue decided by the Supreme Court in Miller. Faced with cases indistinguishable from Miller, this
Court adhered to stare decisis and decided them the same way the Supreme Court had decided Miller.
Stare decisis has no bearing on a case involving a statute utterly different from the statute at issue in Miller, Johnson, and Williams. As we have explained, Miller
should not, indeed cannot, be read to encompass a total firearms disability imposed without any finding of future dangerousness. The government's contention that Johnson and Williams control this case is simply insupportable.
IV. Precedent from other circuits provides no persuasive reason to accept the government's attempted application of Sec. 922(g)(8).
Several post-Miller decisions in other circuits have variously, and often erroneously, interpreted both the Second Amendment and Miller. One line of cases adopts a theory under which Second Amendment rights belong only to state governments. Modern scholarship has repeatedly demolished this theory, which has no basis whatsoever in Supreme Court precedent. In a different series of cases, courts have reached essentially the same conclusion through a far-fetched reading of Miller, under which it is impossible for private citizens ever to meet the requirements for Second Amendment protection of their rights.
A. The "states' right" theory should not be adopted by this Court.
The leading case for the "states' right" theory, according to which the Second Amendment does not protect any individual right, is United States v. Tot, 131 F.2d
261 (3rd Cir. 1942) (upholding statutory ban on possession of firearms by violent felons), reversed on other grounds, 319 U.S. 463 (1943). The Tot court's entire analysis, which is sheer dicta, reads as follows:
It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since13 that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.14 The experiences in England under James II of an armed royal force quartered upon a defenseless citizenry15 was fresh in the minds of the Colonists. They wanted no repetition of that experience in their newly formed government. The almost uniform course of decision in this country,16 where provisions similar in language are found in many of the State Constitutions, bears out this concept of the constitutional guarantee. A notable instance is the refusal to extend its application to weapons thought incapable of military use.
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I sounds good for the most part, but I am having enourmous problems with what they say about machine guns, silencers and sawed-offs.
I consider a $200 tax to be an infringement. Suppressors are for protecting people's hearing, not just for criminals. Machine guns are obvious militia weapons. Sawed-offs are self-defense weapons, period. Why not just say the Miller decision was wrong?
[This message has been edited by BTR (edited January 22, 2000).]
SUMMARY OF ARGUMENT
The statute at issue in this case, 18 U.S.C. Sec. 922(g)(8), was intended to prevent persons with a demonstrated history of domestic violence from possessing firearms while under a valid restraining order. The government now contends that the statute also applies to a pro forma order entered in a state divorce proceeding without any judicial finding that the person subject to the order had ever engaged in domestic abuse, or was likely ever to do so. The court below
correctly concluded that such a sweeping and arbitrary infringement on the right to keep and bear arms violates the Second Amendment.
No court has ever approved a federal statute imposing a complete deprivation of the right to possess firearms without a particularized finding of some disabling characteristic. Nor could a court have done so, for Congress has never before enacted such a statute. The cases cited by the government in its brief all relate to restrictions on narrow categories of weapons or to settled categories of disqualified persons such as convicted felons. This Court should make no mistake about the difference between those cases and this one: the government is now asking for a radical extension of federal power when it insists on disarming law-abiding American citizens simply because they are involved in divorce proceedings.
After briefly reviewing the meaning of the Second Amendment, we will demonstrate that the case law on which the government relies does not compel this Court to adopt an interpretation of the Constitution that is at odds with its text and history.
ARGUMENT
I. The Second Amendment protects the fundamental, individual right to keep and bear arms.
The Second Amendment provides: "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." Notwithstanding the confusion about this text engendered by twentieth-century debates over gun control, its meaning was perfectly clear to those who framed and ratified it, and to virtually every serious legal commentator during the first century of the Constitution's existence. The Second Amendment simply forbids the federal government from infringing the right of individual American citizens to keep and bear arms, and this prohibition contributes to fostering "a well regulated militia" by preserving the armed citizenry from which the framers believed that such a militia should be drawn. Like every other provision of the Bill of Rights, the Second Amendment has its limits. But, like every other provision of the Bill of Rights, the Second Amendment must mean something. The Second Amendment will
mean nothing if the government can arbitrarily disarm American citizens who have never been shown to be dangerous or irresponsible.
A. The text and history of the Second Amendment are consistent and unambiguous.
The Second Amendment unequivocally states that "the right of the people to keep and bear arms shall not be infringed." Modern scholarship has repeatedly and conclusively demonstrated that this is a right belonging to individuals, just like the "right(s) of the people" set out in the First and Fourth Amendments. See, e.g., Laurence H. Tribe, 1 American Constitutional Law 902 n. 221 (2000) (Second Amendment recognizes "a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes.") The Constitution's unequivocal statement is not qualified or diminished by the prefatory phrase, "A well regulated Militia, being necessary to the security of a free State . . ." Such prefatory statements of purpose were very common in state constitutions with which the framers were familiar, and they were never interpreted to detract from the operative clauses to which they were appended. Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998) (discussing dozens of examples). Any attempt to use this prefatory language to
recast the individual right as some sort of collective or governmental right leads to intolerable textual difficulties, and even outright absurdities. See, e.g., William Van
Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994); Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 Ga. L. Rev. 1, 20-29 (1996); Reynolds & Kates, The Second Amendment and States' Rights: A Thought Experiment, 36 Wm. & Mary L. Rev.
1737 (1995).
As the constitutional text suggests, the right of the individual to keep and bear arms was closely associated by the framers with the militia tradition that the American
colonists brought with them from England. Many Americans of the late eighteenth century were mistrustful of standing armies, and the Federalists and Anti-Federalists were agreed on at least one fundamental point: liberty was more secure on these shores than in England because the American people were armed.
James Madison, for example, excoriated the European governments that were "afraid to trust the people with arms" and stressed "the advantage of being armed, which the Americans possess over the people of almost every other nation." The Federalist No. 46, at 299 (C. Rossiter, ed. 1961). Patrick Henry, who opposed ratification of the Constitution partly because he feared the specter of federal control over weapons and their use, similarly proclaimed: "The great object is that every man be armed. . . . Everyone who is able may have a gun." 3 J. Elliot, Debates in the Several State Conventions 45 (2d ed. 1836).
The militia tradition with which the Framers associated the right to keep and bear arms was fundamentally different from our contemporary National Guard system.
As the Supreme Court has recognized, the eighteenth century militia "comprised all males physically capable of acting in concert for the common defense." United States v. Miller, 307 U.S. 174, 179 (1939). This was not a legal definition, and in fact the Constitution provides no definition of the militia. But the legal definition adopted in the first Militia Act was perfectly consistent with the spirit of this formulation. Act of May 8, 1792, ch. 33, 1 Stat. 271 (requiring militia enrollment for
most able-bodied white males between the ages of 17 and 45). To this very day, Congress has continued to define the militia so that it includes almost all men
between the ages of 17 and 45. 10 U.S.C. Sec. 311.
For the framers, the militia was always put in sharp contrast with standing military organizations of any kind. See, e.g., Articles of Confederation art. VI, para. 4; 3
J. Elliot, Debates in the Several State Conventions 425 (3d ed. 1937) (statement of George Mason, June 14, 1788) ("Who are the Militia? They consist now of the whole people. . . ."); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 148 (Harvard University Press 1994)
("Because of their long-standing prejudice against a select militia as constituting a form of standing army liable to be skewed politically and dangerous to liberty,
every state had (in the post-Revolutionary period) created a general militia."). It was hoped that government would provide military training so that the militia could operate effectively when the need arose, but this training was not a sine qua non for the existence of the militia. The essential character of the militia lay in two
fundamental qualities: that it remained inactive until a need for its services arose, and that it remained armed while in its usual inactive state. See, e.g., Miller, 307
U.S. at 179 ("(O)rdinarily when called for service these (militia) men were expected to appear bearing arms supplied by themselves and of the kind in common use
at the time.")
The purpose of the Second Amendment is not and cannot be to ensure that the militia receives adequate military training from the government. The government had already been given the power to provide for such training. U.S. Const. art. I, Sec. 8, cl. 16. Nor does the Second Amendment purport to require that this congressional power be exercised responsibly, or indeed exercised at all. The more well-trained the militia was, the more effective it would be, and so the less often
would circumstances require the raising of real armies consisting of full-time, paid troops. And since standing armies were seen as a dangerous tool that would-be tyrants might use to oppress the people, a well-trained militia was widely viewed as a desirable goal, so long as the militia retained its essentially civilian character.
See, e.g., The Federalist No. 29, at 183 (A. Hamilton). But the Constitution gave the federal government virtually unlimited authority to raise armies, and it imposed no requirement that the militia receive effective training. See U.S. Const. art. I, Sec. 8, cls. 12-16. The framers consciously considered and rejected a constitutional provision discouraging peace-time standing armies, and they no doubt recognized that it would be infeasible to write a constitutional rule requiring that the militia be well trained. See 2 Max Farrand, The Records of the Federal Convention 616-17 (1911).
What the Second Amendment does for the militia is to ensure that "the people," from which the militia must be drawn, can remain armed while the militia is in its normal, inactive state. This is why theConstitution's reference to a "well regulated militia" does not mean organizations like our National Guard. Eighteenth century readers, unfamiliar with the modern administrative state, would naturally have recognized that "well regulated" does not necessarily mean "heavily regulated." Rather,
it can just as easily mean "not overly regulated" or "not inappropriately regulated." This insight is crucial to understanding the prefatory language of the Second Amendment. A "well regulated" militia is, among other things, not inappropriately regulated. The Second Amendment simply forbids one form of inappropriate
regulation that the government might be especially tempted to promulgate: disarming the civilian population from which the militia must be drawn. See Nelson Lund,
The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Politics 157 (1999).
Article I authorizes the federal government to adopt a wide range of militia regulations, such as requiring civilians to possess arms and requiring them to undergo military training. See, e.g., Act of May 8, 1792, ch. 33, 1 Stat. 271. The Second Amendment is not a foolish redundancy on Article I, but an important prohibition against the one intolerable form of regulation: civilian disarmament.
B. The right to keep and bear arms continues to serve its constitutional purpose in contemporary America.
A civilian population that is protected from the threat of disarmament contributes to "the security of a free state" in two principal ways. First, the very existence of an
armed citizenry will tend to discourage would-be tyrants from attempting to use paid troops to "pacify" the population. This is not and could not be a guarantee against tyranny, but it surely raises the risks and costs of a tyrannous pacification, and thereby reduces the probability of its being attempted. See, e.g., Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 657 & n.96 (1989). Second, and no less important, an armed citizenry is much less
dependent on the government for protection from the hazards of everyday life, both in a world (like that of the eighteenth century) where organized police forces did not exist, and in a world (like ours) in which the police can almost never put a stop to crimes in progress.
It may be true that we have less reason to fear standing armies today. It is certainly true that our reliance on the traditional militia system for national defense and law
enforcement has declined. But unreasonable gun control policies could still facilitate the tyrannical oppression of political minorities, as they have in the past. See,
e.g., Cottrol & Diamond, The Second Amendment: Toward an Afro- Americanist Reconsideration, 80 Georgetown L.J. 309 (1991). And even if one discounts such dangers, the constitutional right to arms contributes to "the security of a free state" in a second way.
As the Founders were well aware, the right of civilians to arm themselves enables citizens to exercise their fundamental, natural right to self-defense when they are
threatened with criminal attack. See, e.g., Don B. Kates, The Second Amendment and the Ideology of Self-Protection, 9 Const. Commentary 87 (1992). The most reliable studies indicate that armed civilians defend themselves against criminal violence over two million times each year. Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 164 (1995). Simply displaying a weapon is
almost always sufficient to stop an attack, though armed civilians (who far outnumber the police) also shoot many more criminals than the police do. Gary Kleck, Targeting Guns: Firearms and their Control 162, 163 (Aldine de Gruyter 1997). In addition, the widespread civilian ownership of firearms in the United States creates powerful deterrent effects on criminal activity. Burglaries of occupied dwellings, for example, are rare in the United States compared with Canada and Great
Britain. Id. at 183. The recent wave of liberalized concealed-carry laws has produced dramatic declines in violent crime in Texas and the other states that have adopted this policy. John R. Lott, Jr., More Guns, Less Crime: Understanding Crime and Gun Control Laws (University of Chicago Press 1998). Among the greatest beneficiaries of this policy have been women (who are more physically vulnerable than men) and minorities (who tend to live in areas where violent crime rates are higher). Id. at 60-70.
None of this implies that the Second Amendment prevents Congress from adopting reasonable measures to prevent the misuse of firearms. On the contrary, just as there are many permissible restrictions on free speech--ranging from laws against perjury and fraud, to restrictions on obscenity and child pornography--so there
are numerous ways in which government may regulate exceptionally dangerous weapons and prevent dangerous persons (such as juveniles, violent felons, and the mentally ill) from possessing guns at all. But all such laws must be narrowly tailored to serve compelling public purposes, and all such laws must be subject to strict scrutiny by the courts. A statute arbitrarily imposing a complete and automatic firearms disability on a citizen who has merely been told to obey the law in a pro forma divorce court order, without any finding of past or future dangerousness, simply cannot survive constitutional scrutiny. If it could, the government would be free to impose the same disability on all Americans--any of whom might someday break the law--or on any disfavored subset of the population. If that could be done, the Second Amendment would protect only those rights that the government chose not to infringe. This absurd conclusion is inconsistent with the constitutional text and with everything the Framers said about the right to keep and bear arms.
II. Supreme Court precedent does not support the constitutionality of the government's attempted application of section 922(g)(8).
The Supreme Court has issued only one opinion dealing with a Second Amendment challenge to a federal statute: United States v. Miller, 307 U.S. 174 (1939). Before turning to that case, we should note that the government's repeated reliance on a dictum in Lewis v. United States, 445 U.S. 55, 65 n.8 (1980), is entirely misplaced. The Second Amendment was not at issue in Lewis, which dealt with an equal-protection challenge to the federal statute forbidding felons to possess firearms. In the course of its equal-protection analysis, the Court dropped a footnote that included a passing reference to Miller. Although the citation to Miller was inapposite, the Lewis Court's actual decision upholding the federal felon-in- possession statute was perfectly consistent with Second Amendment protection of the
rights of law-abiding citizens. As Lewis noted, 445 U.S. at 66, even the most fundamental of rights, like voting, can be taken away from convicted felons.
The government's extensive discussions of dicta in cases dealing with Second Amendment challenges to state laws are also misplaced. During the nineteenth century, the Supreme Court held that the Bill of Rights, including the Second Amendment, applies only to the federal government. See, e.g., United States v. Cruikshank, 92 U.S. 542 (1875); Presser v. Illinois, 116 U.S. 252 (1886). That Court has subsequently held that some parts of the Bill of Rights (but not others) also constrain state governments by virtue of "incorporation" through the Fourteenth Amendment's Due Process Clause. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147-50 (1968). The Supreme Court has never decided whether the Second Amendment is "incorporated," and courts have continued to apply the holdings in Cruikshank and Presser. See, e.g., Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983); Love v.
Pepersack, 47 F.3d 120 (4th Cir.), cert. denied, 516 U.S. 813 (1995). The case before this Court, however, involves a federal statute, which renders Cruikshank and Presser (and lower court decisions, like Quilici and Love, that follow their holdings) simply irrelevant.
A. The Miller decision.
In United States v. Miller, two men were indicted for violating the National Firearms Act of 1934 by transporting an unregistered short-barreled (or sawed-off) shotgun across state lines. The District Court quashed the indictment, holding without explanation that the statute was inconsistent with the Second Amendment. The government appealed to the Supreme Court, which ruled for the government without hearing any argument on behalf of the defendants.
The Miller opinion is short and cryptic, and its holding must be interpreted narrowly. Most of the Court's opinion is devoted to a discussion of the Framers' understanding of the militia, which the Court characterized as "civilians primarily, soldiers on occasion." 307 U.S. at 179. Without raising any question as to whether the defendants in the case were members of the militia, the Court rested its holding on the presumed nature of sawed-off shotguns:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear
such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the
common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
Id. at 178. This statement of the holding is both tentative and indefinite. The Court does not say that short-barreled shotguns fall outside the Second Amendment, but only that the Court has not been provided with a persuasive reason to regard them as protected. The Court does not say that military weapons alone are protected by the Second Amendment, but only that protected weapons must at least have some ability to contribute to "the common defense." The Court does not say that "the common defense" comprehends only foreign invaders, thus allowing for the usefulness of privately owned firearms against domestic insurrections, for ordinary law enforcement, and for self-defense against criminal attacks. And perhaps most important, the Court never embraces the erroneous suggestion, repeatedly suggested by the government in this case, that the "militia" means a military organization like the National Guard.
B. Miller accepted the individual right interpretation of the Second Amendment.
Miller clearly, if implicitly, acknowledged that the Second Amendment protects the individual right of citizens to keep and bear arms. This is clear from the face of
the Court's opinion, which never asked whether the defendants in that case were members of the National Guard, or of the militia. Nor did the Court suggest that
defendants' status as members of the militia would have had the slightest bearing on the outcome of the case. As the Justices saw it, the only issue in the case was whether the defendants had a right to possess a particular type of weapon in violation of a federal registration requirement. Furthermore, the Court remanded the
case, thereby offering the defendants an opportunity to provide evidence demonstrating exactly what the Supreme Court had been unwilling to take judicial notice
of: that short-barreled shotguns "could contribute to the common defense."
Nor can it be supposed that the Court somehow overlooked the possibility that Second Amendment rights belong only to members of the National Guard or the
militia. On the contrary, the government's brief (the only brief filed in Miller) specifically, repeatedly, and forcefully argued that the right to arms applies only to
members of military organizations. See Brief of the United States, Miller (No. 696), at 4-5, 12, 15, 16. The Supreme Court refused to accept the government's argument.
C. Miller's holding applies only to weapons peculiarly adapted to criminal purposes.
The Miller opinion must be read cautiously and narrowly, in part because some of its language seems to carry implications that the Court could not have intended. The last sentence in the quotation set forth above, for example, appears to assume that private possession of weapons that constitute "any part of the ordinary military equipment" is per se protected by the Second Amendment. In 1939, this would have included fully automatic rifles, mortars, and bazookas. Indeed, as the First Circuit pointed out shortly thereafter, it would have to include the sawed-off shotguns at issue in Miller itself, as well as almost any gun except militarily useless antique weapons like flintlock muskets. Cases v. United States, 131 F.2d 916, 922 (1942), cert. denied, 319 U.S. 770 (1943).
Reading Miller in light of the facts of the case, as one must, it is clear that the Court meant its holding to extend no farther than the National Firearms Act itself extended, namely to the regulation of short-barreled shotguns and rifles, machine guns, and silencers. These devices have only one characteristic in common. They
appear to be particularly well-suited to criminal uses, and ill-suited to legitimate civilian purposes. This, at any rate, is certainly the view that Congress adopted, and
to which the Miller Court provisionally deferred.
We know this, first, because the government's brief in Miller strongly emphasized that the National Firearms Act was directed at weapons that "clearly have no
legitimate use in the hands of private individuals but, on the contrary frequently constitute the arsenal of the gangster and the desperado." Brief for the United States,
Miller (No. 696), at 5; see also id. at 7-8 (extensive excerpt from legislative history discussing "gangster" use of machine guns); 8 ("weapons which are the tools of the criminal"); 18 ("weapons which are commonly used by criminals"); 20 ("arsenal of the 'public enemy' and the 'gangster'").
In addition, the "criminal's weapon" theory is the only way to make sense of the Miller Court's otherwise inapposite citation to the Tennessee Supreme Court's opinion in Aymette v. State. See Miller, 307 U.S. at 178 (quoted above). The Tennessee court, which was construing a state constitutional provision that had a substantially different wording from the Second Amendment, could hardly have provided authority for any general interpretation of the Second Amendment. The
only reason Aymette might have been relevant to the Miller case is that it dealt with certain knives that the Tennessee court said were "usually employed in private
broils, and which are efficient only in the hands of the robber and the assassin." It is no accident that this language, which was quoted in the government's Miller Brief, at 19, occurs on exactly the page of Aymette cited by the Supreme Court in Miller. Compare 307 U.S. at 178 (quoted above) with Aymette, 2 Humphr. (Tenn.) at 156.
Under Miller, Congress may protect the public safety with measures designed to prevent criminals from acquiring weapons that are especially well suited to criminal
purposes and that have few legitimate civilian purposes. The statute at issue in Miller involved plausible examples of such weapons (sawed-off shotguns and rifles,
machine guns, and silencers), and the statute placed relatively limited obstacles (registration and a tax) in the path of the civilian who might have a genuine and
legitimate need for such weapons. Miller, 307 U.S. at 175 n.1 (quoting National Firearms Act). Whatever Miller may imply about more stringent regulation of such
weapons, no reasonable reading of Miller can possibly justify the government's current effort to impose a complete firearms disability on any citizen who becomes subject to a routine divorce court restraining order, unsupported by any finding of past or future dangerousness.
III. The Fifth Circuit precedents cited by the government do not address the issue in this case.
Contrary to the government's startling assertions about stare decisis, this case differs fundamentally from United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971), and United States v. Williams, 446 F.2d 486 (5th Cir. 1971). Both Johnson and Williams involved prosecutions for unlawful possession of an unregistered sawed- off shotgun, which was exactly the same issue decided by the Supreme Court in Miller. Faced with cases indistinguishable from Miller, this
Court adhered to stare decisis and decided them the same way the Supreme Court had decided Miller.
Stare decisis has no bearing on a case involving a statute utterly different from the statute at issue in Miller, Johnson, and Williams. As we have explained, Miller
should not, indeed cannot, be read to encompass a total firearms disability imposed without any finding of future dangerousness. The government's contention that Johnson and Williams control this case is simply insupportable.
IV. Precedent from other circuits provides no persuasive reason to accept the government's attempted application of Sec. 922(g)(8).
Several post-Miller decisions in other circuits have variously, and often erroneously, interpreted both the Second Amendment and Miller. One line of cases adopts a theory under which Second Amendment rights belong only to state governments. Modern scholarship has repeatedly demolished this theory, which has no basis whatsoever in Supreme Court precedent. In a different series of cases, courts have reached essentially the same conclusion through a far-fetched reading of Miller, under which it is impossible for private citizens ever to meet the requirements for Second Amendment protection of their rights.
A. The "states' right" theory should not be adopted by this Court.
The leading case for the "states' right" theory, according to which the Second Amendment does not protect any individual right, is United States v. Tot, 131 F.2d
261 (3rd Cir. 1942) (upholding statutory ban on possession of firearms by violent felons), reversed on other grounds, 319 U.S. 463 (1943). The Tot court's entire analysis, which is sheer dicta, reads as follows:
It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since13 that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.14 The experiences in England under James II of an armed royal force quartered upon a defenseless citizenry15 was fresh in the minds of the Colonists. They wanted no repetition of that experience in their newly formed government. The almost uniform course of decision in this country,16 where provisions similar in language are found in many of the State Constitutions, bears out this concept of the constitutional guarantee. A notable instance is the refusal to extend its application to weapons thought incapable of military use.
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I sounds good for the most part, but I am having enourmous problems with what they say about machine guns, silencers and sawed-offs.
I consider a $200 tax to be an infringement. Suppressors are for protecting people's hearing, not just for criminals. Machine guns are obvious militia weapons. Sawed-offs are self-defense weapons, period. Why not just say the Miller decision was wrong?
[This message has been edited by BTR (edited January 22, 2000).]