USA v. Emerson (5th Cir. 2001)

^[1]The district court’s opinion observes that “[d]uring the [September 4, 1998] hearing, Mrs. Emerson alleged that her husband threatened over the telephone to kill the man with whom Mrs. Emerson had been having an adulterous affair.” United States v. Emerson, 46 F.Supp.2d 598, 599 (N.D. Tex. 1999).

^[2]On August 28, 1998, the day Sacha’s petition was filed, Judge Sutton had issued an ex-parte temporary restraining order prohibiting Emerson from engaging in any of the 29 acts enumerated in Sacha’s petition pending a hearing on Sacha’s request for a temporary injunction. These acts included all those quoted in the text above which the September 14, 1998 order enjoined Emerson from committing. The August 28, 1998 order stated that, after examining the petition, the court “finds that . . . unless [r]espondent . . . is immediately restrained from the commission of the acts hereinafter prohibited, [r]espondent will commit such acts before notice of the hearing on temporary injunction can be served and a hearing had.” This August 28, 1998 order is not the order alleged in the indictment, and in any event it is not within the terms of § 922(g)(8)(A) which requires that the order have been “issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate.”

^[3]The motion was apparently made because of problems with a witness. On February 25, 1999, the district court granted the government’s motion.

^[4]The presently relevant portions of the September 14, 1998, order here cannot be characterized as having only a transparent or frivolous pretense to validity.

^[5]The reference in this proposed amendment’s subparagraph (B) to “a person described in subparagraph (A)” plainly is to the “who is a spouse, former spouse, domestic partner, child, or former child” language of subparagraph (A).

^[6]So far as the record reflects, this case does not present a situation where the defendant’s firearm possession is merely incident to (and/or is simply passive pending initiation and completion of) a good faith effort to rid himself, as soon as after issuance of the disqualifying court order as reasonably practicable under the circumstances, of the continued possession of a previously possessed firearm. Whether such possession is outside the intended scope of § 922(g)(8), or whether such circumstances constitute a defense akin to that of necessity, justification or the like, or whether some such result is constitutionally required (under the Second or Fifth or Eighth Amendments, or otherwise), is thus not now before us. See, generally, e.g., United States v. Newcomb, 6 F.3d 1129, 1133-38 (6th Cir. 1993) (preventing harm to others). Cf. United States v. Gomez, 81 F.3d 846, 850-54 (9th Cir. 1996) (self-defense); United States v. Panter, 688 F.2d 268, 269-72 (5th Cir. 1982) (same). We also observe that the charged possession here was more than 60 days after the September 14, 1998 order. There is no assertion that Emerson did not know of the order when it was entered or within a day or two thereafter.

^[7]The front of the form contains a section 8 which consists of 11 separate questions (respectively labeled “a” through “i”) each of which has an adjoining blank box in which the purchaser must fill in the answer “yes” or “no.” Question “8j” asks:

“j. Are you subject to a court order restraining you from harassing, stalking, or threatening an intimate partner or child of such partner?” (See important Notice 4 and Definition 4.)”

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:

“4. Under 18 U.S.C. § 922 firearms may not be sold to or received by persons subject to a court order that: (A) was issued after a hearing of which the person received actual notice and had an opportunity to participate; (B) restrains such person from harassing, stalking or threatening an intimate partner or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child, or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.”

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.

^[8]Emerson assumed, for purposes of his pretrial motion to dismiss on Commerce Clause grounds, that the pistol had traveled into Texas in interstate or foreign commerce at some time prior to his October 10, 1997, purchase of it in Texas. The government likewise so assumed. Neither party alleged, the record does not reflect, and the district court made no finding as to, when such travel in interstate or foreign commerce occurred.

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 leader, 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, 115 S.Ct. 1624 (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.

^[9]See Michael A. Bellesiles, The Second Amendment in Action, 76 Chi.-Kent L. Rev. 61 (2000); Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-Kent L. Rev. 3 (2000); Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L.Rev. 309 (1998); Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989); Paul Finkelman, “A Well Regulated Militia”: The Second Amendment in Historical Perspective, 76 Chi.-Kent L. Rev. 195 (2000); Steven J. Heyman, Natural Rights and the Second Amendment, 76 Chi.-Kent L. Rev. 237 (2000); H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev. 403 (2000).

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.

^[10]In Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995), a citizen brought suit under 42 U.S.C. § 1983 against state officials for violating, inter alia, her Second Amendment rights by denying her application to purchase a handgun. After stating that “[t]he Second Amendment does not apply to the states,” id. at 123, the court goes on to observe that “the Second Amendment preserves a collective, rather than individual, right.” Id. at 124.

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.

^[11]In Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942), also discussed in note 19, infra, the First Circuit concluded that the Second Amendment was not infringed because there was no evidence that the defendant “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” and the evidence showed he was “on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia.” Id. While the First Circuit did not explicitly adopt the sophisticated collective rights model, its analysis is in many respects consonant with it.

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).

^[12]See Scott Bursor, Toward a Functional Framework for Interpreting the Second Amendment, 74 Texas L. Rev. 1125 (1996); Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L. J. 995 (1995); Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 Okla. L. Rev. 65 (1983); Stephen P. Halbrook, The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment, 26 Val. U. L. Rev. 131 (1991); Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to “Bear Arms”, 49 Law & Contemp. Probs. 151 (1986); Don B. Kates, Jr., The Second Amendment and the Ideology of Self-Protection, 9 Const. Comm. 87 (1992); Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989); Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157 (1999); Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 Ga. L. Rev. 1 (1996); Glenn H. Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995); Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599 (1982); William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994); Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).

^[13]In United States v. Cruikshank, 23 L.Ed. 588 (1875), the Court held that the Second Amendment “is one of the amendments that has no other effect than to restrict the powers of the National Government.” Id. at 592. In Presser v. Illinois, 6 S.Ct. 580, 584 (1886), the Court, reaffirming Cruikshank and citing Barron v. Baltimore, 8 L.Ed. 672 (1833), held that the Second “amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.” And, in Miller v. Texas, 14 S.Ct. 874 (1894), the Court held, with respect to “the second and fourth amendments” that “the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts,” citing Barron v. Baltimore and Cruikshank. As these holdings all came well before the Supreme Court began the process of incorporating certain provisions of the first eight amendments into the Due Process Clause of the Fourteenth Amendment, and as they ultimately rest on a rationale equally applicable to all those amendments, none of them establishes any principle governing any of the issues now before us.

^[14]The Court’s opinion quotes the entire indictment, id. at 816, and likewise quotes all the relevant provisions of the National Firearms Act (then codified at 26 U.S.C. §§ 1132 et seq.), including the definition (in its section 1) of a “firearm” as including “a shotgun or rifle having a barrel of less than eighteen inches in length.” Id. n.1.

^[15]The demurrer further urged that the National Firearms Act was also unconstitutional because it was “not a revenue measure but an attempt to usurp police power reserved to the States.” Miller at 817. The district court did not address this contention. The Supreme Court dismissed it as “plainly untenable,” citing Sonzinksky v. United States, 57 S.Ct. 554 (1937), and several cases “under the Harrison Narcotic Act,” including Nigro v. United States, 48 S.Ct. 388 (1927). Miller at 818. The government’s brief addressed only the issue of whether section 11 of the National Firearms Act contravened the Second Amendment.

^[16]The government’s Miller brief (pp. 12-14) also quotes at length from Aymette at pp. 156-57 as background support for its first argument (namely that the Second Amendment protects arms bearing only where it occurs during actual militia service). However, while some of the Aymette language quoted tends in that direction, the actual holding of that case appears to rest on the basis stated in the quotation set out in the text above. In Aymette the defendant appealed his conviction of violating the statute making it a misdemeanor to “wear any bowie knife . . . under his clothes, or . . . concealed about his person.” The evidence showed that the defendant, with “a bowie-knife concealed under his vest,” went into a hotel looking for an individual he said he intended to kill. He contended on appeal that the conviction violated the provision of the Tennessee constitution declaring “that the free white men of this State have a right to keep and bear arms for their common defence.” The court emphasized the presence and significance of the word “common.” But although it was obvious from the facts recited that the defendant was not engaged in any character of militia service on the occasion in question, but was rather engaged only in an entirely personal activity of his own, the Aymette court did not make this a ground for its decision. Rather, it appears to have affirmed on the basis that [t]he Legislature . . . have a right to prohibit the wearing or keeping weapons . . . which are not usual in civilized warfare, or would not contribute to the common defence” and, alternatively, that “the Legislature may prohibit such manner of wearing [arms] as would never be resorted to by persons engaged in the common defence.” Id. at 159.

^[17]In Robertson the Court, in upholding the constitutionality of the federal statute authorizing the apprehension, imprisonment and return of deserting merchant seamen, stated, in the passage obviously referred to in the government’s Miller brief, as follows (17 S.Ct. at 329):

“. . . the first 10 amendments to the constitution, commonly known as the ‘Bill of Rights,’ were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (article 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant’s motion . . . nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if a prosecution against him be barred by the lapse of time, a pardon, or by statutory enactment . . . Nor does the provision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the depositions of witnesses who have died since the former trial.” (emphasis added)

The Miller opinion cites Robertson. Miller, 59 S.Ct. at 820 n.3.

^[18]We also observe that the Miller opinion’s above reference in quotation marks to a shotgun “‘having a barrel of less than eighteen inches in length’” is a quotation from section 1 of the National Firearms Act, not from the indictment (which refers to “a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length”).

^[19]We note that Justice Thomas, in his concurring opinion in Printz v. United States, 117 S.Ct. 2365, 2386 n.1 (1997), remarked that “[i]n Miller, we determined that the Second Amendment did not guarantee a citizen’s right to possess a sawed-off shotgun because that weapon had not been shown to be ‘ordinary military equipment’ that could ‘contribute to the common defense.’ The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.”

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:

“Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.” Id.

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 7 ½ 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.

^[20]Article 1, § 8 commences “The Congress shall have Power,” and states in clauses 15 and 16:

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

^[21]The government relies on language in a footnote in Lewis v. United States, 100 S.Ct. 915, 921 n.8 (1980), stating with respect to the then felon-in-possession statute (former 18 U.S.C. App. § 1202(a)(1)):

“These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, . . ., 59 S.Ct. 816, 818 . . . (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have “some reasonable relationship to the preservation or efficiency of a well regulated militia”).”

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, 17 S.Ct. 326, 329 (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.

^[22]There is no contention here that the Beretta pistol possessed is a kind or type of weapon that is neither “any part of the ordinary military equipment” nor such “that its use could contribute to the common defense” within the language of Miller (nor that it is otherwise within the kind or type of weapon embraced in the government’s second Miller argument, e.g., “weapons which can have no legitimate use in the hands of private individuals” so as to be categorically excluded from the scope of the Second Amendment under Miller’s holding).

^[23]As noted below in our discussion of the history of the Second Amendment, many Americans at this time not only feared a standing army but also a select militia, a militia comprised of only a relatively few selected individuals (perhaps the youngest and fittest) who were more frequently and better trained and equipped than the general, unorganized militia. Such a select militia would be analogous to today’s National Guard.

^[24]See U.S. Const. Art. I, § 1, Cl. 1 (“[a]ll legislative Powers herein granted shall be vested in a Congress of the United States . . . .”); Art 1, § 8, Cl. 16 (“reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”); Art. II, § 1, Cl. 1 (“The executive Power shall be vested in a President of the United States of America.”); Art. III, § 1, Cl. 1 (“The judicial Power of the United States, shall be vested in one supreme Court . . . .”); amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”) (emphasis added); amend. II (“[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.”) (emphasis added); amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”) (emphasis added); amend. IX (“[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”); amend. X (“[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).

It is also plain that the First Congress knew full well how to distinguish between “the people” and the states, e.g. amend. X.

^[25]See U.S. Const. Art. 1, § 8, Cl. 15 (“[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentation or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . .”).

^[26]The cited portions of Casey and Moore quote with approval from Justice Harlan’s dissenting opinion in Poe v. Ullman, 81 S.Ct. 1752, 1776-77 (1961), the following passage (among others), viz:

“‘[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.’”

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).

^[27]Justice Black’s concurring opinion in Duncan quotes with approval a portion of the remarks of Senator Howard on introducing the Fourteenth Amendment for passage in the Senate, stating that its privileges and immunities clause should include:

“‘. . . the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.’” Id. at 1456 (emphasis added).

^[28]New Hampshire’s 1784 Constitution contained such a provision and Rhode Island’s 1790 ratification convention proposed an amendment to the United States Constitution that would have included a conscientious objector clause.

^[29]See Ala. Const. Art. 1, § 23 (1819) (“Every citizen has a right to bear arms in defense of himself and the state.”); Conn. Const. Art. I, § 17 (1818) (“Every citizen has a right to bear arms in defense of himself and the State.”); Ind. Const. Art. I, § 20 (1816) (“That the people have a right to bear arms for the defence of themselves and the State; and that the military shall be kept in strict subordination to the civil power.”); Ky. Const. Art. 10, ¶ 23 (1792) (“That the right of the citizens to bear arms in defense of themselves and the State, shall not be questioned”); Mich. Const. Art. I, § 13 (1835) (“Every person has a right to keep and bear arms for the defense of himself and the State.”); Miss. Const. Art. I, § 23 (1817) (“Every citizen has a right to bear arms, in defence of himself and the State.”); Mo. Const. Art. XIII, § 3 (1820) (“That the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defense of themselves and of the State cannot be questioned.”);Ohio Const. Art. VIII, § 20 (1802) (“That the people have a right to bear arms for the defense of themselves and the State; and as standing armies, in time of peace, are dangerous to liberty, they shall not be kept up, and that the military shall be kept under strict subordination to the civil power.”); Pa. Const., Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania, Art. XIII (September 28, 1776) (“That the people have a right to bear arms for the defence of themselves and the state;”); Pa. Const. Art. I, § 21 (1790) (“The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”); Vt. Declaration of the Rights of the Inhabitants of the State of Vermont Chp. 1 art. XV (July 8, 1777) (“That the people have a right to bear arms for the defence of themselves and the State”) (note, Vermont was claimed by New York, and was not recognized as a state until 1791).

^[30]We also observe that to interpret state constitutional provision protecting the right of the citizen or the people to “bear arms” as applying only where the individual is actively engaged in actual military service is necessarily to either (1) contemplate actual military service for that purpose as including military service other than that which is ordered or directed by the government; or (2) construe the constitutional provision as saying no more than that the citizen has a right to do that which the state orders him to do and thus neither grants the citizen any right nor in any way restricts the power of the state. Of course, the latter difficulty is especially applicable to the theory that such state constitutional provisions grant rights only to the state. While two (and only two) state courts (both in the twentieth century) have seemingly adopted that view, those two decisions do not appear to even recognize, much less attempt to justify, the anomaly of construing a constitutional declaration of rights as conferring rights only on the state which had them anyway. See City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (Kan. 1905) (in prosecution for carrying a pistol within city limits while intoxicated, construing bill of rights provision “that the people have the right to bear arms for their defense and security” as one which “refers to the people as a collective body” and which “deals exclusively with the military. Individual rights are not considered in this section.”); Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976) (in prosecution for possession of shotgun with barrel less than 18 inches long, provision of § 17 of bill of rights that “the people have a right to keep and bear arms for the common defense” is “not directed to guaranteeing individual ownership or possession of weapons;” while a “law forbidding the keeping by individuals of arms that were used in the militia service might then have interfered with the effectiveness of the militia and thus offended the art. 17 right . . . that situation no longer exists; our militia, of which the backbone is the National Guard, is now equipped and supported by public funds.”).

^[31]We note that in Aymette, supra, the Tennessee Supreme Court, in analyzing § 26 of its bill of rights (“that the free white men of this State have a right to keep and bear arms for their common defence”), construed differently the “keep” and the “bear” portions of that section. As to the “bear” aspect, the court looked to § 28 of the bill of rights (“no citizen of this State shall be required to bear arms provided he will pay an equivalent”) and opined that “bear” arms “has a military sense.” It likewise said that in § 26 “the arms the right to keep which is secured are such as are usually employed in civilized warfare” not “those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin.” Aymette thereafter observed that as to “arms” of the type covered by § 26:

“The citizens have the unqualified right to keep the weapon, it being of the character before described as being intended by this provision. But the right to bear arms is not of that unqualified character. The citizens may bear them for the common defence; but it does not follow that they may be borne by an individual, merely to terrify the people or for purposes of private assassination. And, . . . the Legislature may prohibit such manner of wearing as would never be resorted to by persons engaged in the common defence.” (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;” thought the “the right to bear arms is not of that unqualified character.”

^[32]It seems clear under longstanding and generally accepted principles of statutory construction, that, at least where the preamble and the operative portion of the statute may reasonably be read consistently with each other, the preamble may not properly support a reading of the operative portion which would plainly be at odds with what otherwise would be its clear meaning. See, e.g., Dwarris, A General Treatise on Statutes, 268, 269 (Wm. Gould & Sons, 1871) (footnotes omitted) (“The general purview of a statute is not, however, necessarily to be restrained by any words introductory to the enacting clauses. Larger and stronger words in the enactment part of a statute may extend it beyond the preamble. If the enacting words are plain, and sufficiently comprehensive to embrace the mischief intended to be prevented, they shall extend to it, though the preamble does not warrant the construction. . . . But though the preamble cannot control the enacting part of a statute, which is expressed in clear and unambiguous terms, yet, if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it. In truth, it then resolves itself into a question of intention; or in other words, recourse is had to the primary rules of interpretation. For the words being doubtful, the preamble is compared to the rest of the act, in order to collect the intention of the legislature, whether they meant it to extend to a case like that under consideration.”); Sedgwick, The Interpretation and Construction of Statutes and Constitutional Law, 43 (Fred Rothman & Co. 1980) (reprint of 1874 edition with notes) (“In the modern English cases it is said that the preamble may be used to ascertain and fix the subject matter to which the enacting part is to be applied. So, the purview or body of the act may even be restrained by the preamble, when no inconsistency or contradiction results. But it is well settled that where the intention of the Legislature is clearly expressed in the purview, the preamble shall not restrain it, although it be of much narrower import.”); Joel P. Bishop, Commentaries on the Written Laws and Their Interpretation, 49 (Little, Brown, 1882) (footnotes omitted) (“As showing the inducements to the act, it may have a decisive weight in a doubtful case. But where the body of the statute is distinct, it will prevail over a more restricted preamble. . . . We look to this introductory matter for the general intent of the legislature,–the reasons and principles upon which the law proceeds. So that, to the extent to which these can influence the interpretation, the preamble becomes important. . . . In the words of Ellenborough, C.J.: ‘In a vast number of acts of Parliament, although a particular mischief is recited in the preamble, yet the legislative provisions extend far beyond the mischief recited. And whether the words shall be restrained or not must depend on a fair exposition of the particular statute in each particular case, and not upon any universal rule of construction.’”).

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.

^[33]See also Senate Subcomm. on the Constitution of the Committee on The Judiciary, 97 Cong., 2nd Sess., The Right to Keep and Bear Arms (Comm. Print 1982): “In 1623, Virginia forbade its colonists to travel unless they were ‘well armed’ . . . In 1658 it required every householder to have a functioning firearm within his house.” Id. at 9 (footnote omitted). 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:

“(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are–

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

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

^[34]“That the People have a Right to keep & to 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 . . . .” Richmond Antifederal Committee Proposed Bill of Rights, § 17, reprinted in Young, The Origin of the Second Amendment (2nd ed. 1995) (Golden Oak Books) (hereafter Young), at 390.

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.

^[35]“It has been urged that they [standing armies] are necessary to provide against sudden attacks. Would not a well regulated militia, duly trained to discipline, afford ample security?” The Impartial Examiner, Virginia Independent Chronicle, February 27, 1788, excerpt reprinted in Young, supra, at 285.

“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.

^[36]See, e.g., Debates In The Convention of the Commonwealth of Virginia, reprinted in 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....”); letters from the federal farmer to the republican 123 (W. Bennett ed. 1978) (ascribed to Richard Henry Lee) (“[a] militia, when properly formed, are in fact the people themselves....”); Letter from Tench Coxe to the Pennsylvania Gazette (Feb. 20, 1778), reprinted in The documentary history of the ratification of the constitution (Mfm. Supp. 1976) (“Who are these militia? are they not ourselves.”) (emphasis in original).

^[37]Hamilton in Federalist 29 likewise obviously considered the militia as being composed of “the people at large,” though he did not believe such a force could be made very effective. He states that “disciplining all of the militia” would be “futile,” requiring more than “a month” (obviously per year), and that “[l]ittle more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.” Hamilton therefore took the position that “the proper establishment of the militia” also required “the formation of a select corps of moderate size.” The Federalist Papers, supra at 184-85.

^[38]See Appendix–part 1.

^[39]See Patrick Henry, Virginia Convention, June 5, 1788 (excerpt reprinted in Young, supra 34 at 373) (“Your militia is given up to Congress . . . of what service would militia be to you, when, most probably, you will not have a single musket in the state? [F]or, as arms are to be provided by Congress, they may or may not furnish them.”); Patrick Henry, Virginia Convention, June 9, 1788 (excerpt reprinted in Young, supra at 381) (“We have not one fourth of the arms that would be sufficient to defend ourselves. The power of arming the militia, and the means of purchasing arms, are taken from the states by the paramount powers of Congress. If Congress will not arm them, they will not be armed at all.”); George Mason, Virginia Convention, June 14, 1788 (excerpt reprinted in Young, supra at 401) (“Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them . . . . Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.”).

^[40]Aristocrotis, The Government of Nature Delineated or An Exact Picture of the New Federal Constitution [Anti-Federalist satire of the Federalist position], April 15, 1788 (excerpts reprinted in Young, supra note 34, at 329-335) (“The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc. which good policy will prompt government to disarm. It would be dangerous to trust such a rable as this with arms in their hands.”); Letter from George Mason to Thomas Jefferson (May 26, 1788) (excerpt reprinted in Young, supra at 365-66) (“There are many other things very objectionable in the proposed new Constitution; particularly the almost unlimited Authority over the Militia of the several States; whereby, under Colour of regulating, them may disarm, or render useless the Militia, the more easily to govern by a standing Army; or they may harass the Militia, by such rigid Regulations, and intollerable Burdens, as to make the People themselves desire it’s Abolition.”); George Mason, Virginia Convention, June 14, 1788 (excerpt reprinted in Young, supra at 401) (“There are various ways of destroying the militia. A standing army may be perpetually established in their stead. I abominate and detest the idea of a government, where there is a standing army. The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless–by disarming them.”); William Lenoir, North Carolina Convention, July 30, 1788 (excerpt reprinted in Young, supra at 496-500) (“When we consider the great powers of Congress, there is great cause of alarm. They can disarm the militia. If they were armed, they would be a resource against great oppressions.”).

^[41]Patrick Henry, Virginia Convention, June 5, 1788 (excerpt reprinted in Young, supra note 34, at 374) (“If they [Congress] neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither–this power being exclusively given to Congress.”).

^[42]See A Number of Letters from the Federal Farmer to the Republican, Letter III, November 8, 1787 (reprinted in Young, supra note 34, at 91) (“it is true, the yoemanry of the country possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended–and, therefore, it is urged [by the Federalists], they will take care of themselves, that men who shall govern will not dare pay any disrespect to their opinions. It is easily perceived, that if they have not their proper negative upon passing laws in congress, or on the passage of laws relative to taxes and armies, they may in twenty or thirty years be by means imperceptible to them, totally deprived of that boasted weight and strength: This may be done in a great measure by congress, if disposed to do it, by modelling the militia. Should one fifth, or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless.”). See also note 58, infra.

^[43]Luther Martin, Baltimore Maryland Journal, March 18, 1788 (excerpt reprinted in Young, supra note 34, at 301-302) (“That a system [the Constitution] may enable government wantonly to exercise power over the militia, to call out an unreasonable number from any particular state without its permission, and to march them upon, and continue them in, remote and improper services–that the same system should enable the government totally to discard, render useless, and even disarm the militia, when it would remove them out of the way of opposing its ambitious views, is by no means inconsistent, and is really the case in the proposed constitution . . . . It [the federal government] has also, by another clause, the powers, by which only the militia can be organized and armed, and by the neglect of which they may be rendered utterly useless and insignificant, when it suits the ambitious purposes of government:–Nor is the suggestion unreasonable . . . that the government might improperly oppress and harass the militia, the better to reconcile them to the idea of regular troops, who might relieve them of the burthen, and to render them less opposed to the measures it might be disposed to adopt for the purpose of reducing them to that state of insignificancy and uselessness.”); George Mason, Virginia Convention, June 14, 1788 (excerpt reprinted in Young, supra at 401,402) (“If they [Congress] ever attempt to harass and abuse the militia, they may abolish them, and raise a standing army in their stead. . . . If, at any time, our rulers should have unjust and iniquitous designs against our liberties, and should wish to establish a standing army, the first attempt would be to render the service and use of militia odious to the people themselves–subjecting them to unnecessary severity of discipline in time of peace, confining them under martial law, and disgusting them so much as to make them cry out. ‘Give us a standing army!’”).

^[44]See A Democratic Federalist, Philadelphia Pennsylvania Herald, October 17, 1787 (excerpts reprinted in Young, supra note 34, at 46) (“[T]he federal rulers are vested with each of the three essential powers of government–their laws are to be paramount to the laws of the different states. What then will there be to oppose their encroachments? Should they ever pretend to tyrannize over the people, their standing army will silence every popular effort; it will be theirs to explain the powers which have been granted to them. . . . [T]he liberty of the people will be no more. . . .” Centinel II, Philadelphia Independent Gazetteer, October 24, 1787 (excerpts reprinted in Young, supra at 59) (“A standing army with regular provision of pay and contingencies, would afford a strong temptation to some ambitious man to step up into the throne, and to seize absolute power.”); Philadelphienses III, Philadelphia Freeman’s Journal, December 5, 1787 (excerpts reprinted in Young, supra at 139) (“And in respect to the standing army, it will only be made up of profligate idle ruffians, whose prowess will chiefly consist of feats of cruelty exercised on their innocent fellow citizens . . . .”); A Farmer, Exeter, New Hampshire Freeman’s Oracle, January 11, 1788 (excerpts reprinted in Young, supra at 206) (“An army, either in peace or war, is like the locust and caterpillers of Egypt; they bear down all before them–and many times, by designing men, have been used as an engine to destroy the liberties of a people, and reduce them to the most abject slavery. . . . Organize your militia, arm them well, and under Providence they will be a sufficient security.”); A Ploughman, Winchester Virginia Gazette, March 19, 1788 (reprinted in Young, supra at 303) (“And in order to rivet the chains of perpetual slavery upon us, they have made a standing army an essential part of the Federal Constitution, which the world cannot produce an instance of a more permanent foundation to erect the fabrik of tyranny upon; . . . to keep a standing army, gives cause to suspect that the rulers are afraid of the people, or that they may have a design upon them. If their designs are oppressive, the army is necessary to compleat the tyranny; if the army is the strongest force in a State, it must be a military government, and it is eternally true, that a free government and a standing army are absolutely incompatible.”).

^[45]See Philadelphia Freeman’s Journal, January 16, 1788 (excerpt reprinted in Young, supra note 34, at 211-13) (“They well know the impolicy of putting or keeping arms in the hands of a nervous people, at a distance from the seat of a government, upon whom they mean to exercise the powers granted in that government. . . . Tyrants have never placed any confidence on a militia composed of freemen. Experience has taught them that a standing body of regular forces, whenever they can be completely introduced, are always efficacious in enforcing their edicts, however arbitrary . . . . There is no instance of any government being reduced to a confirmed tyranny without military oppression; and the first policy of tyrants has been to annihilate all other means of national activity and defence, when they feared opposition, and to rely solely upon standing troops.”); Luther Martin, Genuine Information IV, Baltimore Maryland Gazette, January 17, 1788 (excerpt reprinted in Young, supra at 221) (“[W]hen a government wishes to deprive their citizens of freedom, and reduce them to slavery, it generally makes use of a standing army for that purpose, and leaves the militia in a situation as contemptible as possible, least they might oppose its arbitrary designs–That in this system [the Constitution], we give the general government every provision it could wish for, and even invite it to subvert the liberties of the States and their citizens, since we give them the right to encrease and keep up a standing army as numerous as it would wish, and by placing the militia under its power, enable it to leave the militia totally unorganized, undisciplined and even to disarm them; while the citizens, so far from complaining of this neglect, might even esteem it a favour in the general government, as thereby they would be freed from the burthen of military duties, and left to their own private occupations or pleasures.”); Patrick Henry, Virginia Convention, June 5, 1788 (excerpts reprinted in Young, supra at 370) (“Have we the means of resisting disciplined armies, when our only defence, the militia, is put into the hands of Congress?”).

^[46]George Mason, Virginia Convention, June 14, 1788 (excerpt reprinted in Young, supra note 34, at 402) (“I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them.”).

^[47]See Appendix–part 2.

^[48]See Appendix–part 3.

^[49]See Appendix–part 4.

^[50]See Appendix–part 5.

^[51]See Appendix–part 6.

^[52]James Madison, Virginia Convention, June 14, 1788 (excerpt reprinted in Young, supra note 34, at 403) (“I cannot conceive that this Constitution, by giving the general government the power of arming the militia, takes it away from the state governments. The power is concurrent, and not exclusive.”); Patrick Henry, Virginia Convention, June 14, 1788 (excerpt reprinted in Young, supra at 407) (“The great object is, that every man be armed. . . . When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it?”).

^[53]Some of the Federalists’ responses, e.g., James Madison’s in Federalist 46, spoke of the militia as defending the people against federal tyranny. Opponents of the individual rights view assert that these references to the militia indicate that the Federalists’ response depended not on the people being armed, but on the states having the power to arm the militia. While it is true that the Anti-Federalists desired this concession, the Second Amendment did not provide it. We think Madison’s message in Federalist 46 is clear: the Anti-Federalists were not to worry about federal tyranny because those who comprised the militia could resist such tyranny since the the American people were armed. Federalist 46 speaks about the significance of the government trusting the people with arms and of the states as a “barrier against the enterprises of ambition”, but does not say that the state governments had (or would be given) power to arm the militia. Federalist 46 clearly depends, in large part, on the American people being armed. In this respect, Madison’s rationale in Federalist 46 is substantially the same as that of the Second Amendment which he would craft over a year later.

^[54]This was one of several clauses which Madison’s proposal, in its fourth (“fourthly”) section, called for to be inserted in art. 1, § 9, between clauses 3 and 4, the others to be inserted there all being provisions which eventually became the First, Third, Fourth, Eighth and Ninth Amendments and portions of the Fifth and Sixth Amendments.

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 3, § 2.

Madison’s proposal called for what became the Tenth Amendment to be (together with a separation of powers provision) in a new Article 7, with existing Article 7 to be renumbered Article 8.

Madison also proposed to amend Art. 1, § 2, cl. 3 (number of representatives), Art. 1, § 6, cl. 1 (compensation of representatives), and Art. 1, § 10 (to prohibit states from denying equal rights of conscience, freedom of the press or jury trial in criminal cases).

^[55]Before the close vote was taken, Congressman Benson offered another rationale for striking the clause, and it was he who actually moved to strike. Benson believed there was no natural right to be exempted from military service and that such exemptions should be left to the “benevolence” of the legislature. House of Representatives, Debates, August 17, 1789 (excerpt reprinted in Young, supra note 34, at 697).

^[56]If this was what Scott was thinking, he was wrong. As will be shown, proposals to limit the federal government’s power to maintain a standing army were defeated in both the House and the Senate.

^[57]This rejected amendment read:

“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.

^[58]See note 42, supra, and the following: John Smilie, Pennsylvania Convention, December 6, 1787 (excerpts reprinted in Young, supra note 34, at 145-46) (“I object to the power of Congress over the militia and to keep a standing army. . . . Congress may give us a select militia which will, in fact, be a standing army–or Congress, afraid of a general militia, may say there shall be no militia at all. When a select militia is formed, the people in general may be disarmed.”); Centinel IX, Philadelphia Independent Gazetteer, January 8, 1788 (excerpt reprinted in Young, supra 192) (footnote omitted) (“I was ever jealous of the select militia, consisting of infantry and troops of horse, instituted in this city and some of the counties, . . . . Are not these corps provided to suppress the first efforts of freedom, and to check the spirit of the people until a regular and sufficiently powerful military force shall be embodied to rivet the chains of slavery on a deluded nation.”); A Countryman, New York Journal, January 22, 1788 (excerpt reprinted in Young, supra at 224) (“Should the new constitution be sufficiently corrected by a substantial bill of rights . . . separating the legislative, judicial and executive departments entirely, and confining the national government to its proper objects; but, by no means admitting a standing army in time of peace, nor a select militia, which last, is a scheme that a certain head has, for some time, been teeming with, and is nothing else but an artful introduction to the other . . . I imagine we might become a happy and respectable people.”); See An Additional Number of Letters from the Federal Farmer to the Republican, Letter XVIII, May 1788 (reprinted in Young, supra at 354-55) (footnote omitted) (“First, the constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usuage of the states, all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided. . . . But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot well be called out, or be depended upon; that we must have a select militia; that is, as I understand it, particular corps or bodies of young men, and of men who have but little to do at home, particularly armed and disciplined in some measure, at the public expence, and always ready to take the field. These corps, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and always must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenceless; whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle . . . .”).

^[59]Sent to the states at the same time were proposed amendments to Art. 1, § 2, cl. 3 (number of representatives) and Art. 1, § 6, cl. 1 (compensation of representatives). Neither was ratified with the Bill of Rights, although the latter was (at least arguably) ultimately ratified as the Twenty-seventh Amendment in May 1992.

^[60]While there is no historical evidence that the states’ rights view of the Second Amendment is correct, we are struck by the absence of any indication that the result contemplated by the sophisticated collective rights view was desired, or even conceived of, by anyone.

^[61]The district court’s analysis of the constitutionality of section 922(g)(8), was essentially as follows:

“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).

^[62]Likewise, the Supreme Court has remarked that the right to keep and bear arms is, like other rights protected by the Bill of Rights, “subject to certain well-recognized exceptions, arising from the necessities of the case” and hence “is not infringed by laws prohibiting the carrying of concealed weapons,” Robertson v. Baldwin, 17 S.Ct. 326, 329 (1897), or by laws “which only forbid bodies of men to associate together as military organizations . . . to drill or parade in cities and towns unless authorized by law.” Presser v. Illinois, 6 S.Ct. 580, 584 (1886).

^[63]Emerson does not contest that the prohibitions of the order fall within the literal terms of § 922(g)(8)(C)(ii), and the district court did not determine otherwise.

^[64]See also, e.g., 42 Am Jur 2d, Injunctions, § 32 at 606-08 (“To be entitled to an injunction, the plaintiff must establish that he . . . is immediately in danger of sustaining, some direct injury as a result of the challenged conduct. The injunction will not issue unless there is an imminent threat of illegal action. In other words, the injury or threat of injury must be real and immediate . . . The apprehension of injury must be well grounded, which means there is a reasonable probability that a real injury . . . will occur if the injunction is not granted . . .”) (footnotes omitted; emphasis added); Id. § 8 at 566 (“The standard for granting a preliminary injunction is essentially the same as for a permanent injunction, with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success”) (footnote omitted).

^[65]As previously observed, see note 6, supra, the present record does not confront us with and we do not speak to, a situation in which the defendant’s firearm possession is merely incident to (and/or is simply passive pending initiation and completion of) a good faith effort to rid himself, as soon after issuance of the disqualifying court order as reasonably practicable under the circumstances, of the continued possession of a previously possessed firearm.

^[66]We reject the special concurrence’s impassioned criticism of our reaching the issue of whether the Second Amendment’s right to keep and bear arms is an individual right. That precise issue was decided by the district court and was briefed and argued by both parties in this court and in the district court. Moreover, in reaching that issue we have only done what the vast majority of other courts faced with similar contentions have done (albeit our resolution of that question is different). The vast majority have not, as the special concurrence would have us do, simply said it makes no difference whether or not the Second Amendment right to keep and bear arms is an individual right because even if it were an individual right the conviction (or the challenged statute) would be valid. In this case, unless we were to determine the issue of the proper construction of section 922(g)(8) in Emerson’s favor (which the special concurrence does not suggest), resolution of this appeal requires us to determine the constitutionality of section 922(g)(8), facially and as applied, under the Second Amendment (as well as under the due process clause and the commerce clause). We have done so on a straightforward basis.

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.

^[67]All pending undisposed motions are denied.