United States v. Emerson

REVISED NOVEMBER 2, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-10331

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

TIMOTHY JOE EMERSON,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Texas

October 16, 2001

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

The United States appeals the district court’s dismissal of

the indictment of Defendant-Appellee Dr. Timothy Joe Emerson

(Emerson) for violating 18 U.S.C. § 922(g)(8)(C)(ii). The district

court held that section 922(g)(8)(C)(ii) was unconstitutional on

its face under the Second Amendment and as applied to Emerson under

the Due Process Clause of the Fifth Amendment. We reverse and

remand.
 Facts and Proceedings Below

On August 28, 1998, Sacha Emerson, Emerson’s wife, filed a

petition for divorce in the 119th District Court of Tom Green

County, Texas. The petition also requested, inter alia, a

temporary injunction enjoining Emerson from engaging in any of

twenty-nine enumerated acts. On September 4, 1998, Judge Sutton

held a temporary orders evidentiary hearing. Sacha Emerson was

represented by counsel while Emerson appeared pro se. There is no

evidence that Emerson was unable (financially or otherwise) to

retain counsel for the hearing or that he desired representation by

counsel on that occasion. He announced ready at the beginning of

the September 4 hearing. Almost all of Sacha Emerson’s direct

testimony concerned financial matters, but the following relevant

exchange took place on direct examination by her attorney:

Q You are here today asking the Court for temporary
orders regarding yourself and your daughter; is
that correct?

A Yes.

Q You have asked in these restraining orders
regarding Mr. Emerson in that he not communicate
with you in an obscene, vulgar, profane, indecent
manner, in a coarse or offensive manner?

A Yes.

Q He has previous to today threatened to kill you; is
that correct?

A He hasn’t threatened to kill me. He’s threatened
to kill a friend of mine.

Q Okay. And he has threatened – he has made some

2
 phone calls to you about that?

A Yes.1

Emerson declined an opportunity to cross-examine Sacha and

presented no evidence tending to refute any of her above quoted

testimony or to explain his conduct in that respect. In his

testimony he stated in another connection, among other things, that

he was suffering from “anxiety” and was not “mentally in a good

state of mind.”

On September 14, 1998, Judge Sutton issued a temporary order

that included a “Temporary Injunction” which stated that Emerson

“is enjoined from” engaging in any of twenty-two enumerated acts,

including the following:

“2. Threatening Petitioner in person, by telephone, or in
writing to take unlawful action against any person.”
“4. Intentionally, knowingly, or recklessly causing
bodily injury to Petitioner or to a child of either
party.”
“5. Threatening Petitioner or a child of either party
with imminent bodily injury.”

The order provides that it “shall continue in force until the

signing of the final decree of divorce or until further order of

this court.” The September 14, 1998 order did not include any

express finding that Emerson posed a future danger to Sacha or to

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).

3
his daughter Logan.2 There is nothing to indicate that Emerson

ever sought to modify or challenge any of the provisions of the

September 14, 1998 order.

On December 8, 1998, the grand jury for the Northern District

of Texas, San Angelo division, returned a five-count indictment

against Emerson. The government moved to dismiss counts 2 through

5, which motion the district court subsequently granted.3 Count 1,

the only remaining count and the count here at issue, alleged that

Emerson on November 16, 1998, unlawfully possessed “in and

affecting interstate commerce” a firearm, a Beretta pistol, while

subject to the above mentioned September 14, 1998 order, in

violation of 18 U.S.C. § 922(g)(8). It appears that Emerson had

purchased the pistol on October 10, 1997, in San Angelo, Texas,

from a licensed firearms dealer. Emerson does not claim that the

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
pistol had not previously traveled in interstate or foreign

commerce. It is not disputed that the September 14, 1998 order was

in effect at least through November 16, 1998.

Emerson moved pretrial to dismiss the indictment, asserting

that section 922(g)(8), facially and as applied to him, violates

the Second Amendment and the Due Process Clause of the Fifth

Amendment. He also moved to dismiss on the basis that section

922(g)(8) was an improper exertion of federal power under the

Commerce Clause and that, in any case, the law unconstitutionally

usurps powers reserved to the states by the Tenth Amendment. An

evidentiary hearing was held on Emerson’s motion to dismiss.

The district court granted Emerson’s motions to dismiss.

Subsequently, the district court issued an amended memorandum

opinion reported at 46 F.Supp.2d 598 (N.D. Tex. 1999). The

district court held that dismissal of the indictment was proper on

Second or Fifth Amendment grounds, but rejected Emerson’s Tenth

Amendment and Commerce Clause arguments.

The government appealed. Emerson filed a notice of cross-

appeal, which was dismissed by this Court. The government

challenges the district court’s dismissal on Second and Fifth

Amendment grounds. Emerson defends the district court’s dismissal

on those grounds and also urges that dismissal was in any event

proper under the Commerce Clause and on statutory grounds.

Discussion

5
I. Construction of 18 U.S.C. § 922(g)(8)

18 U.S.C. § 922 provides in relevant part:

“(g) It shall be unlawful for any person–
....
(8) who is subject to a court order that–
(A) was issued after a hearing of which such person
received actual notice, and at which such person had an
opportunity to participate;
(B) restrains such person from harassing, stalking,
or threatening an intimate partner of such person 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; or
....
to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign
commerce.”

Emerson argues that section 922(g)(8)(C)(ii) should be

construed to require that the particular predicate court order

include an explicit finding that the person enjoined posed a

credible threat of violence to his spouse or child. Emerson

further argues that the statute must also be read to require that

the predicate order be supported by sufficient evidence before the

court entering it to sustain such a finding, so that the court in

the criminal prosecution must examine the record in the proceeding

before the court entering the predicate order and must acquit the

6
defendant in the criminal case if the evidence before the court

entering the predicate order was not sufficient to sustain such a

finding. It is, of course, our duty to construe a statute so as to

avoid any serious constitutional questions. However, the statute

must be susceptible to that construction, i.e. our construction

must be fairly possible; the duty to avoid constitutional questions

is not a license to rewrite the statute. Jones v. United States,

119 S.Ct. 1215, 1222 (1999); Feltner v. Columbia Pictures

Television, Inc., 118 S.Ct. 1279, 1283 (1998); United States v.

Albertini, 105 S.Ct. 2897, 2902 (1985). “If the statutory language

is unambiguous, in the absence of ‘a clearly expressed legislative

intent to the contrary, that language must ordinarily be regarded

as conclusive.’” Russello v. United States, 104 S.Ct. 296, 299

(1983) (quoting United States v. Turkette, 101 S.Ct. 2524, 2527

(1981)). In addition, if uncertainty remains after an examination

of the statute’s text, its legislative history and the policies it

advances, the rule of lenity requires this uncertainty to be

resolved in favor of Emerson. United States v. Prestenbach, 230

F.3d 780, n.23 (5th Cir. 2000).

Turning first to Emerson’s second statutory argument, there is

nothing in the text of the statute to support it. Moreover, it is

contrary to uniform construction of section 922(g) and its

predecessors under which the courts have construed this and other

similar subsections of section 922. See, e.g., Lewis v. United

7
States, 100 S.Ct. 915 (1980); United States v. Chambers, 922 F.2d

228, 232-40 (5th Cir. 1991). Just as Lewis observed that “nothing

[in the statutory text] suggests any restriction on the scope of

the term ‘convicted,’” id. at 918, so also nothing in section

922(g)(8) suggests that the validity of the particular predicate

court order may be inquired into in the section 922(g)(8) criminal

prosecution. Moreover, this is consistent with the long standing

federal rule that violation of an injunction that is subsequently

invalidated may, at least so long as it cannot be characterized as

having only a transparent or frivolous pretense to validity, be

punished as criminal contempt. See Chambers at 239-40; National

Maritime Union v. Aquaslide ‘N’ Drive Corp., 737 F.2d 1395, 1399-

1400 (5th Cir. 1984).4

We likewise reject the argument that section 922(g)(8)

requires that the predicate order contain an express judicial

finding that the defendant poses a credible threat to the physical

safety of his spouse or child. If the requirements of 922(g)(8)(A)

and (B) are fulfilled, then by its terms section 922(g)’s firearms

disability attaches if either clause (C)(i) or clause (C)(ii)

applies. Although an express judicial finding of future

dangerousness pursuant to section 922(g)(8)(C)(i) is one way

section 922(g)(8)’s firearms disability can attach, to construe

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.

8
section 922(g)(8) as always requiring an express judicial finding

would be to substitute the word “and” for the word “or” that

appears at the end of 922(g)(8)(C)(i). If Congress intended to

require an express judicial finding, it would have arranged the

elements as 922(g)(8)(A)-(D) and used the word “and” rather than

“or” to join them.

Notwithstanding the lack of textual ambiguity, Emerson

maintains that we should either imply the express judicial finding

requirement into section 922(g)(8) or at least recognize the lack

of an express judicial finding as an affirmative defense to section

922(g)(8). He argues that, without the requirement of an express

judicial finding, sections 922(g)(8)(B) and (C)(ii) are redundant

while section 922(g)(8)(A) is rendered a nullity. While there is

some overlap between section 922(g)(8)(B) and (C)(ii), each still

has some independent scope in the statutory scheme. Section

922(g)(8)(B) broadly refers to orders that restrain harassing,

stalking or threatening. It is quite possible that an order could

surmount the section 922(g)(8)(B) hurdle and yet only fulfill one

of the section 922(g)(8)(C) criteria. Congress obviously felt that

if the order only “restrains” harassing, stalking, threatening, or

otherwise causing fear of injury, an express judicial finding of a

credible threat of violence was necessary. Section 922(g)(8)(B)

and (C)(i). However, if the order “by its terms explicitly

prohibits” the use, attempted use or threatened use of physical

9
force, no such express finding was necessary. Section

922(g)(8)(C)(ii). Thus, Congress affirmatively drew a distinction

between orders “explicitly prohibiting” the actual, attempted or

threatened physical attack and those merely “restraining” stalking

or harassment. It is true that both sections embrace orders that

proscribe threats, but this degree of congruence is insufficient to

overcome the plain meaning of the text. Nor do we agree that the

absence of a requirement of an express judicial finding renders

section 922(g)(8)(A) a nullity.

Emerson also argues that the word “restrain”, as used in

922(g)(8)(B), necessarily requires an express judicial finding that

the defendant poses a credible threat of violence to his spouse or

child. The argument is simply that both temporary and permanent

injunctions traditionally require, in addition to notice and

hearing, some express judicial finding supporting the court’s

order. While this may be generally true, it is not invariably the

case that injunctions must contain such findings and, more

importantly, the argument made does not overcome the fact that

Congress specifically required notice and hearing in all section

922(g)(8) cases but affirmatively and specifically required an

express finding only in cases governed by clause (C)(i). The crux

of the matter is that we cannot imply in clause (C)(ii) an express

finding requirement that is not stated in it while being

affirmatively and specifically stated in clause (C)(i).

10
 Relying on the legislative history of section 922(g)(8),

Emerson and amicus the State of Alabama contend that all three

versions of the bill (one from the House, two from the Senate) that

went to the Conference Committee required an express judicial

finding. They contend that the real purpose of section

922(g)(8)(C)(ii) is to close a “loophole” in section 922(g)(8) that

would have prevented it from applying if the express judicial

finding was not in the order itself, but instead, for example, in

an accompanying memorandum. We find neither argument ultimately

persuasive. Contrary to the assertions of Emerson and the State of

Alabama, one of the Senate versions of the bill that went to the

Conference Committee did authorize a firearms disability without

any express judicial finding. This version resulted from amendment

1179 to S.1607, submitted by Senator Biden for Senator Wellstone on

November 10, 1993. Amendment 1179 provided, in relevant part:

“(8)(A) has been convicted in any court of an offense
that-
(i) involves the use, attempted use, or threatened use of
physical force against a person who is a spouse, former
spouse, domestic partner, child, or former child of the
person; or
(ii) by its nature, involves a substantial risk that
physical force against a person who is a spouse, former
spouse, domestic partner, child, or former child of the
person may be used in the course of committing the
offense; or
(B) is required, pursuant to an order issued by any court
in a case involving a person described in subparagraph
(A), to refrain from any contact with or to maintain a
minimum distance from that person, or to refrain from
abuse, harassment, or stalking of that person.”

139 Cong. Rec. S15638-03, *S15650. This language was sent to the

11
Conference Committee on November 24, 1993, and clearly contemplates

a firearms disability without either a conviction or an express

judicial finding of future dangerousness. 139 Cong. Rec. S17095-

03, *S17174.5 Emerson’s contention that 922(g)(8)(C)(ii)’s

presence in the statute cannot be explained by anything sent to the

Conference Committee is unfounded. Similarly, there is nothing in

the legislative history suggesting that Congress, or any of its

committees or members, ever addressed, considered or had called to

its or their attention the supposed “loophole” in the statutory

scheme now put forth by Emerson.

Because the construction urged by Emerson is not fairly

possible, we must decline his invitation to rewrite section

922(g)(8). Likewise, because section 922(g)(8) is not ambiguous,

the rule of lenity provides no basis for relief.

II. Due Process Clause of the Fifth Amendment

The district court held that prosecution for violating section

922(g)(8) would deprive Emerson of his Fifth Amendment right to Due

Process because: 1) Dr. Emerson did not know that possession of a

firearm while being subject to the September 14, 1998 order was a

crime; 2) section 922(g)(8) is an “obscure criminal provision” that

would be difficult for Emerson to discover; 3) there is nothing

inherently evil about possessing a firearm; and 4) Emerson had no

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).

12
reason to suspect that being subject to the September 14, 1998

order would criminalize otherwise lawful behavior. United States

v. Emerson, 46 F.Supp.2d 598, 611-13. The district court relied

upon Lambert v. California, 78 S.Ct. 240, 243 (1957), in which the

Supreme Court struck down a Los Angeles law requiring resident

felons to register with the city. The Supreme Court observed that:

1) the defendant had been prosecuted for passive activity; 2) the

defendant was unaware of the need to register; 3) circumstances

that would have prompted an inquiry into the necessity of

registration were lacking; and 4) an average member of the

community would not consider the punished conduct blameworthy. Id.

At the outset, we note that “[t]he sweep of the Lambert case

has been limited by subsequent decisions of the Supreme Court, lest

it swallow the general rule that ignorance of the law is no

excuse.” United States v. Giles, 640 F.2d 621, 628 (5th Cir.

1981). 18 U.S.C. § 924(a)(2) provides that the required mens rea

for conviction under section 922(g) is knowledge (“Whoever

knowingly violates subsection . . . (g) . . . of section 922 . .

.”). “Knowingly”–in contrast to at least some uses of

“wilfully”–does not require that the defendant know that his

actions are unlawful, but only that he know he is engaging in the

activity that the legislature has proscribed. Bryan v. United

States, 118 S.Ct. 1939, 1945-47 (1998). Bryan explained that

Staples v. United States, 114 S.Ct. 1793 (1994), exemplifies this

13
distinction. In Staples, the Supreme Court held that conviction

for unlawful possession of a machine gun did not require knowledge

that machine gun possession was unlawful, but only knowledge that

the weapon possessed was a machine gun. Bryan, 118 S.Ct. at 1946

(under Staples “[i]t was not, however, necessary to prove that the

defendant knew that his possession was unlawful”). Here, there is

no question that Emerson was aware that on November 16, 1998, he

actively possessed a firearm of the kind covered by the statute

while subject to the September 14, 1998 order or that he

misapprehended the actual contents of that order.6

Moreover, Emerson filled out and signed BATF Form 4473 when,

on October 10, 1997, he purchased the Beretta semi-automatic pistol

referred to in Count 1. This afforded notice to Emerson that so

long as he was under a court order such as that of September 14,

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.

14
1998, federal law prohibited his continued possession of that

weapon.7 In Giles, we distinguished Lambert on this basis (as

well as others), noting “Giles’ situation, of course, is far

different from that of Ms. Lambert, for he was directly confronted

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.

15
with accurate written notice of the conduct proscribed by the

statute [then § 922(h)(1)] when he filled out and signed a Form

4473 as part of each firearm purchase.” Giles, 640 F.2d at 628.

Finally, we agree with the district court that firearms ownership

is not inherently evil or suspect and that thus a certain mens rea

is required. Staples, 114 S.Ct. at 1799-1801. However, Bryan and

Staples make clear that the necessary mens rea in this context does

not require knowledge of the law but merely of the legally relevant

facts. Giles rejects application of Lambert at least where, as

here, there is the notice provided by the Form 4473. For these

reasons, we hold that Emerson’s case does not merit relief under

Lambert, and that the district court erred when it granted

Emerson’s motion to dismiss the indictment as violating his Fifth

Amendment Due Process rights on that basis.

III. Commerce Clause

The district court rejected Emerson’s contention that, in

enacting section 922(g)(8), Congress exceeded its power under the

Commerce Clause. As the district court noted, this Court has held

that, because section 922(g)(8) only criminalizes the possession of

firearms or ammunition “in or affecting commerce” and the reception

of firearms that have been “shipped or transported in interstate or

foreign commerce”, Congress did not exceed its Article I, Section

8 powers in enacting it. United States v. Pierson, 139 F.3d 501,

503 (5th Cir.), cert. denied, 119 S.Ct. 220 (1998). Accordingly,

16
the district court, as bound by this precedent as we are, did not

err in denying Emerson’s motion to dismiss the indictment on

Commerce Clause grounds.8

IV. Tenth Amendment

The district court held that congressional enactment of

section 922(g)(8) did not violate the Tenth Amendment to the

Constitution. Finding no reference to this issue in Emerson’s

brief to this Court, we must consider his Tenth Amendment claim

abandoned.

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 dealer, although any possible relevance of that to the
issue of congressional Commerce Clause power has not been raised by
either party here or below. See United States v. Lopez, 2 F.3d 1342,
1348 & n.9 (5th Cir. 1993), affirmed, 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.

17
V. Second Amendment

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.”

A. Introduction and Overview of Second Amendment Models

The district court held that the Second Amendment recognizes

the right of individual citizens to own and possess firearms, and

declared that section 922(g)(8) was unconstitutional on its face

because it requires that a citizen be disarmed merely because of

being subject to a “boilerplate [domestic relations injunctive]

order with no particularized findings.” Emerson, 46 F.Supp.2d at

611. The government opines that stare decisis requires us to

reverse the district court’s embrace of the individual rights

model. Amici for the government argue that even if binding

precedent does not require reversal, the flaws in the district

court’s Second Amendment analysis do.

In the last few decades, courts and commentators have offered

what may fairly be characterized as three different basic

interpretations of the Second Amendment. The first is that the

Second Amendment does not apply to individuals; rather, it merely

recognizes the right of a state to arm its militia.9 This “states’

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

18
rights” or “collective rights” interpretation of the Second

Amendment has been embraced by several of our sister circuits.10

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

19
The government commended the states’ rights view of the Second

Amendment to the district court, urging that the Second Amendment

does not apply to individual citizens.

Proponents of the next model admit that the Second Amendment

recognizes some limited species of individual right. However, this

supposedly “individual” right to bear arms can only be exercised by

members of a functioning, organized state militia who bear the arms

while and as a part of actively participating in the organized

militia’s activities. The “individual” right to keep arms only

applies to members of such a militia, and then only if the federal

and state governments fail to provide the firearms necessary for

such militia service. At present, virtually the only such

organized and actively functioning militia is the National Guard,

and this has been the case for many years. Currently, the federal

government provides the necessary implements of warfare, including

firearms, to the National Guard, and this likewise has long been

the case. Thus, under this model, the Second Amendment poses no

obstacle to the wholesale disarmament of the American people. A

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.

20
number of our sister circuits have accepted this model, sometimes

referred to by commentators as the sophisticated collective rights

model.11 On appeal the government has abandoned the states’ rights

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

21
model and now advocates the sophisticated collective rights model.

The third model is simply that the Second Amendment recognizes

the right of individuals to keep and bear arms. This is the view

advanced by Emerson and adopted by the district court. None of our

sister circuits has subscribed to this model, known by commentators

as the individual rights model or the standard model. The

individual rights view has enjoyed considerable academic

endorsement, especially in the last two decades.12

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

22
 We now turn to the question of whether the district court

erred in adopting an individual rights or standard model as the

basis of its construction of the Second Amendment.

B. Stare Decisis and United States v. Miller

The government steadfastly maintains that the Supreme Court’s

decision in United States v. Miller, 59 S.Ct. 816 (1939), mandated

acceptance of the collective rights or sophisticated collective

rights model, and rejection of the individual rights or standard

model, as a basis for construction of the Second Amendment. We

disagree.

Only in United States v. Miller has the Supreme Court rendered

any holding respecting the Second Amendment as applied to the

federal government.13 There, the indictment charged the defendants

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,

23
with transporting in interstate commerce, from Oklahoma to

Arkansas, an unregistered “Stevens shotgun having a barrel less

than 18 inches in length” without having the required stamped

written order, contrary to the National Firearms Act.14 The

defendants filed a demurrer challenging the facial validity of the

indictment on the ground that “[t]he National Firearms Act . . .

offends the inhibition of the Second Amendment,” and “[t]he

District Court held that section 11 of the Act [proscribing

interstate transportation of a firearm, as therein defined, that

lacked registration or a stamped order] violates the Second

Amendment. It accordingly sustained the demurrer and quashed the

indictment.” Id. at 817-18. The government appealed, and we have

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.

24
examined a copy of its brief.15 The Miller defendants neither filed

any brief nor made any appearance in the Supreme Court.

The government’s Supreme Court brief “[p]reliminarily” points

out that:

“. . . the National Firearms Act does not apply to all
firearms but only to a limited class of firearms. The
term ‘firearm’ is defined in Section 1 of the Act. . . to
refer only to ‘a shotgun or rifle having a barrel of less
than 18 inches in length, or any other weapon, except a
pistol or revolver, from which a shot is discharged by an
explosive if such weapon is capable of being concealed on
the person, or a machine gun, and includes a muffler or
silencer for any firearm whether or not such firearm is
included within the foregoing definition.’” (id. at 6).

In this connection the brief goes on to assert that it is

“indisputable that Congress was striking not at weapons intended

for legitimate use but at weapons which form the arsenal of the

gangster and the desperado” (id. at 7) and that the National

Firearms Act restricts interstate transportation “of only those

weapons which are the tools of the criminal” (id. at 8).

The government’s brief thereafter makes essentially two legal

arguments.

First, it contends that the right secured by the Second

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.

25
Amendment is “only one which exists where the arms are borne in the

militia or some other military organization provided for by law and

intended for the protection of the state.” Id. at 15. This, in

essence, is the sophisticated collective rights model.

The second of the government’s two arguments in Miller is

reflected by the following passage from its brief:

“While some courts have said that the right to bear arms
includes the right of the individual to have them for the
protection of his person and property as well as the
right of the people to bear them collectively (People v.
Brown, 253 Mich. 537; State v. Duke, 42 Tex. 455), the
cases are unanimous in holding that the term “arms” as
used in constitutional provisions refers only to those
weapons which are ordinarily used for military or public
defense purposes and does not relate to those weapons
which are commonly used by criminals. Thus in Aymette v.
State [2 Humph., Tenn. 154 (1840)], supra, it was said
(p. 158):
‘As the object for which the right to keep and
bear arms is secured, is of general and public
nature, to be exercised by the people in a
body, for their common defence, so the arms,
the right to keep which is secured, are such
as are usually employed in civilized warfare,
and that constitute the ordinary military
equipment. If the citizens have these arms in
their hands, they are prepared in the best
possible manner to repel any encroachments
upon their rights by those in authority. They
need not, for such a purpose, the use of those
weapons which are usually employed in private
broils, and which are efficient only in the
hands of the robber and the assassin. These
weapons would be useless in war. They could
not be employed advantageously in the common
defence of the citizens. The right to keep
and bear them, is not, therefore, secured by
the constitution.’” (Id. at 18-19).16

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

26
The government’s Miller brief then proceeds (at pp. 19-20) to cite

various other state cases, and Robertson v. Baldwin, 17 S.Ct. 326,

329 (1897),17 in support of its second argument, and states:

(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

27
 “That the foregoing cases conclusively establish that the
Second Amendment has relation only to the right of the
people to keep and bear arms for lawful purposes and does
not conceivably relate to weapons of the type referred to
in the National Firearms Act cannot be doubted. Sawed-
off shotguns, sawed-off rifles and machine guns are
clearly weapons which can have no legitimate use in the
hands of private individuals.”

Thereafter, the government’s brief in its “conclusion” states:

“. . . we respectfully submit that Section 11 of the National

Firearms Act does not infringe ‘the right of the people to keep and

bear arms’ secured by the Second Amendment.”

Miller reversed the decision of the district court and

“remanded for further proceedings.” Id. at 820. We believe it is

entirely clear that the Supreme Court decided Miller on the basis

of the government’s second argument–that a “shotgun having a barrel

of less than eighteen inches in length” as stated in the National

Firearms Act is not (or cannot merely be assumed to be) one of the

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.

28
“Arms” which the Second Amendment prohibits infringement of the

right of the people to keep and bear–and not on the basis of the

government’s first argument (that the Second Amendment protects the

right of the people to keep and bear no character of “arms” when

not borne in actual, active service in the militia or some other

military organization provided for by law”). Miller expresses its

holding as follows:

“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 818 (emphasis added).

Note that the cited page of Aymette (p. 158) is the page from which

the government’s brief quoted in support of its second argument

(see text at call for note 16 supra).18

Nowhere in the Court’s Miller opinion is there any reference

to the fact that the indictment does not remotely suggest that

either of the two defendants was ever a member of any organized,

active militia, such as the National Guard, much less that either

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”).

29
was engaged (or about to be engaged) in any actual military service

or training of such a militia unit when transporting the sawed-off

shotgun from Oklahoma into Arkansas. Had the lack of such

membership or engagement been a ground of the decision in Miller,

the Court’s opinion would obviously have made mention of it. But

it did not.19

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

30
 Nor do we believe that any other portion of the Miller opinion

supports the sophisticated collective rights model.

Just after the above quoted portion of its opinion, the Miller

court continued in a separate paragraph initially quoting the

militia clauses of article 1, § 8 (clauses 15 and 16)20 and

concluding:

“With obvious purpose to assure the continuation and
render possible the effectiveness of such forces
[militia] the declaration and guarantee of the Second
Amendment were made. It must be interpreted and applied

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;”

31
 with that end in view.” Id. at 818.

Miller then proceeds to discuss what was meant by the term

“militia,” stating in part:

“The signification attributed to the term Militia appears
from the debates in the Convention, the history and
legislation of Colonies and States, and the writings of
approved commentators. These show plainly enough that
the Militia comprised all males physically capable of
acting in concert for the common defense. . . .
ordinarily when called for service these men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.
. . .
“The American Colonies In the 17th Century,” Osgood, Vol.
1, ch. XIII, affirms in reference to the early system of
defense in New England–
“In all the colonies, as in England, the militia system
was based on the principle of the assize of arms. This
implied the general obligation of all adult male
inhabitants to possess arms, and, with certain
exceptions, to cooperate in the work of defence.’” Id. at
818 (emphasis added).
“The General Court of Massachusetts, January Session 1784
(Laws and Resolves 1784, c. 55, pp. 140, 142), provided
for the organization and government of the Militia. It
directed that the Train Band should ‘contain all able
bodied men, from sixteen to forty years of age, and the
Alarm List, all other men under sixty years of age, * *
*.’” Id. at 819 (emphasis added).

These passages from Miller suggest that the militia, the assurance

of whose continuation and the rendering possible of whose

effectiveness Miller says were purposes of the Second Amendment,

referred to the generality of the civilian male inhabitants

throughout their lives from teenage years until old age and to

their personally keeping their own arms, and not merely to

individuals during the time (if any) they might be actively engaged

32
in actual military service or only to those who were members of

special or select units.

We conclude that Miller does not support the government’s

collective rights or sophisticated collective rights approach to

the Second Amendment. Indeed, to the extent that Miller sheds

light on the matter it cuts against the government’s position. Nor

does the government cite any other authority binding on this panel

which mandates acceptance of its position in this respect.21

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,

33
However, we do not proceed on the assumption that Miller actually

accepted an individual rights, as opposed to a collective or

sophisticated collective rights, interpretation of the Second

Amendment. Thus, Miller itself does not resolve that issue.22 We

turn, therefore, to an analysis of history and wording of the

Second Amendment for guidance. In undertaking this analysis, we

are mindful that almost all of our sister circuits have rejected

any individual rights view of the Second Amendment. However, it

respectfully appears to us that all or almost all of these opinions

seem to have done so either on the erroneous assumption that Miller

resolved that issue or without sufficient articulated examination

of the history and text of the Second Amendment.

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).

34
 C. Text

We begin construing the Second Amendment by examining its

text: “[a] well regulated Militia, being necessary to the security

of a free State, the right of the people to keep and bear Arms,

shall not be infringed.” U.S. CONST. amend. II.

1. Substantive Guarantee

a. “People”

The states rights model requires the word “people” to be read

as though it were “States” or “States respectively.” This would

also require a corresponding change in the balance of the text to

something like “to provide for the militia to keep and bear arms.”

That is not only far removed from the actual wording of the Second

Amendment, but also would be in substantial tension with Art. 1, §

8, Cl. 16 (Congress has the power “To provide for . . . arming . .

. the militia. . .”). For the sophisticated collective rights

model to be viable, the word “people” must be read as the words

“members of a select militia”.23 The individual rights model, of

course, does not require that any special or unique meaning be

attributed to the word “people.” It gives the same meaning to the

words “the people” as used in the Second Amendment phrase “the

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.

35
right of the people” as when used in the exact same phrase in the

contemporaneously submitted and ratified First and Fourth

Amendments.

There is no evidence in the text of the Second Amendment, or

any other part of the Constitution, that the words “the people”

have a different connotation within the Second Amendment than when

employed elsewhere in the Constitution. In fact, the text of the

Constitution, as a whole, strongly suggests that the words “the

people” have precisely the same meaning within the Second Amendment

as without. And, as used throughout the Constitution, “the people”

have “rights” and “powers,” but federal and state governments only

have “powers” or “authority”, never “rights.”24 Moreover, the

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 I, § 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

36
Constitution’s text likewise recognizes not only the difference

between the “militia” and “the people” but also between the

“militia” which has not been “call[ed] forth” and “the militia,

when in actual service.”25

Our view of the meaning of “the people,” as used in the

Constitution, is in harmony with the United States Supreme Court’s

pronouncement in United States v. Verdugo-Urquidez, 110 S.Ct. 1056,

1060-61 (1990), that:

“‘[T]he people’ seems to have been a term of art employed
in select parts of the Constitution. The Preamble
declares that the Constitution is ordained and
established by ‘the People of the United States.’ The
Second Amendment protects ‘the right of the people to
keep and bear Arms,’ and the Ninth and Tenth Amendments
provide that certain rights and powers are retained by

and reserved to ‘the people.’ While this textual
exegesis is by no means conclusive, it suggests that ‘the
people’ protected by the Fourth Amendment, and by the
First and Second Amendments, and to whom rights and
powers are reserved in the Ninth and Tenth Amendments,
refers to a class of people who are part of a national
community or who have otherwise developed sufficient
connection with this country to be considered part of
that community.” (citations omitted)

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. I, § 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 . . . .”).

37
 Several other Supreme Court opinions speak of the Second

Amendment in a manner plainly indicating that the right which it

secures to “the people” is an individual or personal, not a

collective or quasi-collective, right in the same sense that the

rights secured to “the people” in the First and Fourth Amendments,

and the rights secured by the other provisions of the first eight

amendments, are individual or personal, and not collective or

quasi-collective, rights. See, e.g., Planned Parenthood v. Casey,

112 S.Ct. 2791, 2805 (1992); Moore v. City of East Cleveland, 97

S.Ct. 1932, 1937 (1977);26 Robertson v. Baldwin, supra (see

quotation in note 17 supra); Scott v. Sandford, 60 U.S. (19 How.)

393, 417, 450-51, 15 L.Ed. 691, 705, 719 (1856). See also Justice

Black’s concurring opinion in Duncan v. Louisiana, 88 S.Ct. 1444,

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).

38
1456 (1968).27

It appears clear that “the people,” as used in the

Constitution, including the Second Amendment, refers to individual

Americans.

b. “Bear Arms”

Proponents of the states’ rights and sophisticated collective

rights models argue that the phrase “bear arms” only applies to a

member of the militia carrying weapons during actual militia

service. Champions of the individual rights model opine that “bear

arms” refers to any carrying of weapons, whether by a soldier or a

civilian. There is no question that the phrase “bear arms” may be

used to refer to the carrying of arms by a soldier or militiaman.

The issue is whether “bear arms” was also commonly used to refer to

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).

39
the carrying of arms by a civilian.

The best evidence that “bear arms” was primarily used to refer

to military situations comes from Aymette v. State, 2 Humph., Tenn.

154 (1840), a prosecution for carrying a concealed bowie knife.

The Supreme Court of Tennessee, in construing section 26 of its

declaration of rights, providing that “the free white men of this

State have a right to keep and bear arms for their common defence,”

stated:

“The 28th section of our bill of rights provides ‘that no
citizen of this State shall be compelled to bear arms
provided he will pay an equivalent, to be ascertained by
law.’ Here we know that the phrase has a military sense,
and no other; and we must infer that it is used in the
same way in the 26th section, which secures to the
citizen the right to bear arms. A man in pursuit of
deer, elk, and buffaloes might carry his rifle every day
for forty years, and yet it would never be said of him
that he had borne arms . . . .”

Unlike the Tennessee constitution at issue in Aymette, the Second

Amendment has no “for their common defence” language and the United

States Constitution contains no provision comparable to section 28

of the Tennessee constitution on which the Aymette court relied.

Amici supporting the government also cite other examples of

state constitutional provisions allowing a conscientious objector

to be excused from the duty of bearing arms if he pays an

equivalent so that another can serve in his place.28

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.

40
 However, there are numerous instances of the phrase “bear

arms” being used to describe a civilian’s carrying of arms. Early

constitutional provisions or declarations of rights in at least

some ten different states speak of the right of the “people” [or

“citizen” or “citizens”] “to bear arms in defense of themselves [or

“himself”] and the state,” or equivalent words, thus indisputably

reflecting that under common usage “bear arms” was in no sense

restricted to bearing arms in military service.29 And such

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).

41
provisions were enforced on the basis that the right to bear arms

was not restricted to bearing arms during actual military service.

See Bliss v. Commonwealth, 13 Am. Dec. 251, 12 Ky. 90 (Ky. 1822).

We also note that a minority of the delegates to the

Pennsylvania ratification convention proposed the following

amendment to the Constitution:

“That the people have a right to bear arms for the
defense of themselves and their own state, or the United
States, or for the purpose of killing game; and no law
shall be passed for disarming the people or any of them,
unless for crimes committed, or real danger of public
injury from individuals; and as standing armies in the
time of peace are dangerous to liberty, they ought not to
be kept up; and that the military shall be kept under
strict subordination to and be governed by the civil
powers.”

2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 623-24 (Merill

Jensen ed., 1976). This is yet another example of “bear arms”

being used to refer to the carrying of arms by civilians for non-

military purposes. Also revealing is a bill drafted by Thomas

Jefferson and proposed to the Virginia legislature by James Madison

(the author of the Second Amendment) on October 31, 1785, that

would impose penalties upon those who violated hunting laws if they

“shall bear a gun out of his [the violator’s] inclosed ground,

unless whilst performing military duty.” 2 THE PAPERS OF THOMAS

JEFFERSON 443-44 (J.P. Boyd, ed. 1950). A similar indication that

“bear arms” was a general description of the carrying of arms by

anyone is found in the 1828 edition of Webster’s American

Dictionary of the English Language; where the third definition of

42
bear reads: “[t]o wear; to bear as a mark of authority or

distinction, as, to bear a sword, a badge, a name; to bear arms in

a coat.”

We conclude that the phrase “bear arms” refers generally to

the carrying or wearing of arms. It is certainly proper to use the

phrase in reference to the carrying or wearing of arms by a soldier

or militiaman; thus, the context in which “bear arms” appears may

indicate that it refers to a military situation, e.g. the

conscientious objector clauses cited by amici supporting the

government. However, amici’s argument that “bear arms” was

exclusively, or even usually, used to only refer to the carrying or

wearing of arms by a soldier or militiaman must be rejected.30 The

30
We also observe that to interpret state constitutional provisions
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

43
appearance of “bear Arms” in the Second Amendment accords fully

with the plain meaning of the subject of the substantive guarantee,

“the people,” and offers no support for the proposition that the

Second Amendment applies only during periods of actual military

service or only to those who are members of a select militia.

Finally, our view of “bear arms” as used in the Second Amendment

appears to be the same as that expressed in the dissenting opinion

of Justice Ginsburg (joined by the Chief Justice and Justices

Scalia and Souter) in Muscarello v. United States, 118 S.Ct. 1911,

1921 (1998); viz:

“Surely a most familiar meaning [of carrying a firearm]
is, as the Constitution’s Second Amendment (“keep and
bear Arms”) (emphasis added) and Black’s Law Dictionary,
at 214, indicate: “wear, bear, or carry . . . upon the
person or in the clothing or in a pocket, for the purpose
. . . of being armed and ready for offensive or defensive
action in a case of conflict with another person.”

c. “Keep . . . Arms”

Neither the government nor amici argue that “keep . . . Arms”

commands a military connotation.31 The plain meaning of the right

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”),

44
of the people to keep arms is that it is an individual, rather than

a collective, right and is not limited to keeping arms while

engaged in active military service or as a member of a select

militia such as the National Guard.

d. Substantive Guarantee as a Whole

Taken as a whole, the text of the Second Amendment’s

substantive guarantee is not suggestive of a collective rights or

sophisticated collective rights interpretation, and the

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;” though “the right to bear arms
is not of that unqualified character.”

45
implausibility of either such interpretation is enhanced by

consideration of the guarantee’s placement within the Bill of

Rights and the wording of the other articles thereof and of the

original Constitution as a whole.

2. Effect of Preamble

We turn now to the Second Amendment’s preamble: “A well-

regulated Militia, being necessary to the security of a free

State.” And, we ask ourselves whether this preamble suffices to

mandate what would be an otherwise implausible collective rights or

sophisticated collective rights interpretation of the amendment.

We conclude that it does not.

Certainly, the preamble implies that the substantive guarantee

is one which tends to enable, promote or further the existence,

continuation or effectiveness of that “well-regulated Militia”

which is “necessary to the security of a free State.” As the Court

said in Miller, immediately after quoting the militia clauses of

Article I, § 8 (cl. 15 and 16), “[w]ith obvious purpose to assure

the continuation and render possible the effectiveness of such

forces the declaration and guarantee of the Second Amendment were

made.” Id., 59 S.Ct. at 818. We conclude that the Second

Amendment’s substantive guarantee, read as guaranteeing individual

rights, may as so read reasonably be understood as being a

guarantee which tends to enable, promote or further the existence,

continuation or effectiveness of that “well-regulated Militia”

46
which is “necessary to the security of a free State.” Accordingly,

the preamble does not support an interpretation of the amendment’s

substantive guarantee in accordance with the collective rights or

sophisticated collective rights model, as such an interpretation is

contrary to the plain meaning of the text of the guarantee, its

placement within the Bill of Rights and the wording of the other

articles thereof and of the original Constitution as a whole.32

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

47
 As observed in Miller, “the Militia comprised all males

physically capable of acting in concert for the common defense” and

“that ordinarily when called for service these men were expected to

appear bearing arms supplied by themselves.” Id., 59 S.Ct. at 818.

Miller further notes that “‘[i]n all the colonies . . . the militia

systems . . . implied the general obligation of all adult male

inhabitants to possess arms.’” Id. (citation omitted).33 There are

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 note 12, 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

48
frequent contemporaneous references to “a well-regulated militia”

being “composed of the body of the people, trained in arms.”34

Plainly, then, “a well-regulated Militia” refers not to a special

or select subset or group taken out of the militia as a whole but

rather to the condition of the militia as a whole, namely being

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.

49
well disciplined and trained.35 And, “Militia,” just like “well-

regulated Militia,” likewise was understood to be composed of the

people generally possessed of arms which they knew how to use,

rather than to refer to some formal military group separate and

distinct from the people at large.36 Madison also plainly shared

these views, as is reflected in his Federalist No. 46 where he

argued that power of Congress under the proposed constitution “[t]o

raise and support Armies” (art. 1, § 8, cl.12) posed no threat to

liberty because any such army, if misused, “would be opposed [by]

a militia amounting to near half a million of citizens with arms in

their hands” and then noting “the advantage of being armed, which

the Americans possess over the people of almost every other

nation,” in contrast to “the several kingdoms of Europe” where “the

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).

50
governments are afraid to trust the people with arms.” The

Federalist Papers at 299 (Rossiter, New American Library). Plainly,

Madison saw an armed people as a foundation of the militia which

would provide security for a “free” state, one which, like America

but unlike the “kingdoms of Europe,” was not afraid to trust its

people to have their own arms.37 The militia consisted of the

people bearing their own arms when called to active service, arms

which they kept and hence knew how to use. If the people were

disarmed there could be no militia (well-regulated or otherwise) as

it was then understood. That expresses the proper understanding of

the relationship between the Second Amendment’s preamble and its

substantive guarantee. As stated in Kates, Handgun Prohibition and

the Original Meaning of the Second Amendment, supra note 12, “the

[second] amendment’s wording, so opaque to us, made perfect sense

to the Framers: believing that a militia (composed of the entire

people possessed of their individually owned arms) was necessary

for the protection of a free state, they guaranteed the people’s

right to possess those arms.” Id. at 217-18. Similarly, Cooley,

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.

51
GENERAL PRINCIPLES OF CONSTITUTIONAL LAW (Little, Brown, 1880; 1981

Rothman & Co. reprint) rejects, as “not warranted by the intent,”

an interpretation of the Second Amendment “that the right to keep

and bear arms was only guaranteed to the Militia,” and states

“[t]he meaning of the provision undoubtedly is, that the people,

from whom the militia must be taken, shall have the right to keep

and bear arms; and they need no permission or regulation of law for

the purpose. But this enables the government to have a well-

regulated militia; for to bear arms implies something more than the

mere keeping; it implies the learning to handle and use them in a

way that makes those who keep them ready for their efficient use.”

Id. at 271. Much the same thought was expressed more than one

hundred years later in the following passage from Tribe, AMERICAN

CONSTITUTIONAL LAW (3d ed. 2000):

“Perhaps the most accurate conclusion one can reach with
any confidence is that the core meaning of the Second
Amendment is a populist/republican/federalism one: Its
central object is to arm “We the People” so that ordinary
citizens can participate in the collective defense of
their community and their state. But it does so not
through directly protecting a right on the part of states
or other collectivities, assertable by them against the
federal government, to arm the populace as they see fit.
Rather, the amendment achieves its central purpose by
assuring that the federal government may not disarm
individual citizens without some unusually strong
justification consistent with the authority of the states
to organize their own militias. That assurance in turn
is provided through recognizing a right (admittedly of
uncertain scope) on the part of individuals to possess
and use firearms in the defense of themselves and their
homes . . . a right that directly limits action by
Congress or by the Executive Branch . . .” Id., Vol. 1,
n.221 at 902.

52
 In sum, to give the Second Amendment’s preamble its full and

proper due there is no need to torture the meaning of its

substantive guarantee into the collective rights or sophisticated

collective rights model which is so plainly inconsistent with the

substantive guarantee’s text, its placement within the bill of

rights and the wording of the other articles thereof and of the

original Constitution as a whole.

D. History

1. Introduction

Turning to the history of the Second Amendment’s adoption, we

find nothing inconsistent with the conclusion that as ultimately

proposed by Congress and ratified by the states it was understood

and intended in accordance with the individual rights model as set

out above.

On May 25, 1787, the Federal Convention began meeting in

Philadelphia to craft what would become the United States

Constitution. The primary shortcoming of the Articles of

Confederation was that the central government it provided for was

too weak. It was generally recognized that, although a stronger

central government was needed, the central government was to remain

one of limited and enumerated powers only, lest the cure be worse

than the disease. Thus, the challenge was to design a federal

government strong enough to deal effectively with that particular

range of issues requiring federal control, without enabling the

53
federal government to become an instrument of tyranny. Not

surprisingly, political leaders of that day differed as to the

proper balance of these concerns. The Federalists favored a strong

federal government. The Anti-Federalists were much more suspicious

and fearful of a strong federal government and wanted numerous

safeguards in place to protect the people and the states from being

tyrannized and oppressed by the federal government. The Federal

Convention was dominated by the Federalists. On September 17,

1787, the Convention completed its work and forwarded the

Constitution to the Confederation Congress.

2. The Anti-Federalists’ Fears

The Constitution alarmed Anti-Federalists for three reasons

relevant to the debate over the meaning of the Second Amendment.

First, although the proposed federal government appeared to be

one of limited and enumerated powers, the Anti-Federalists feared

that it would someday attempt to infringe one or more of the

people’s fundamental rights. To help prevent this, the Anti-

Federalists wanted the United States Constitution, like most of the

state Constitutions, to contain a Bill of Rights.38

Second, the Constitution gave the federal government large

powers over the militia, allowing the Congress:

“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

38
See Appendix–part 1.

54
 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;”.

U.S. CONST. art. I, § 8, cl. 15, 16. Congress was also given the

power “To raise and support Armies.” Id. art. I, § 8, cl. 12. The

states were also forbidden to keep troops without the consent of

Congress. Id. art. I, § 10, cl. 3.

The Anti-Federalists feared that the federal government would

act or fail to act so as to destroy the militia, e.g. failure to

arm the militia,39 disarmament of the militia40, failure to prescribe

39
See Patrick Henry, Virginia Convention, June 5, 1788 (excerpt
reprinted in Young, supra note 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

55
training for the militia41, creation of a select militia42 or making

militia service so unpleasant that the people would demand a

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.

56
standing army or select militia.43 These concerns over the militia

were exacerbated by the third issue: the federal government’s power

to maintain a standing army (art. I, § 8, cl.12). The Anti-

Federalists feared that the federal government’s standing army

could be used to tyrannize and oppress the American people.44

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

57
Without a militia to defend against the federal government’s

standing army, the states and their citizens would be defenseless.45

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

58
 Thus, the Anti-Federalists wanted the Constitution amended in

three ways prior to ratification: 1) addition of a Bill of Rights;

2) recognition of the power of the states to arm and train their

militias;46 and 3) curtailment of the federal government’s power to

maintain a standing army.

3. The Federalist Response

The Federalists, of course, wanted the Constitution to be

ratified. Because the Constitution could only be ratified

unchanged, this forced the Federalists to oppose all attempts to

alter it prior to ratification. The Federalists argued that no

bill of rights was needed for three reasons: 1) it was beyond the

purview of the federal government, intended to be one of limited

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.”).

59
and enumerated powers, to infringe upon fundamental rights;47 2) any

enumeration of fundamental rights might imply that the federal

government had power to infringe upon those not mentioned;48 and 3)

the American people were used to being free–they would not allow

their rights to be infringed.49

Realizing that the Anti-Federalists’ two other concerns

(federal control of arming and training of the militia and

maintenance of a standing army) boiled down to a fear that the

federal government’s standing army would oppress a defenseless

people, the Federalists’ responded that: 1) the American people are

armed and hence could successfully resist an oppressive standing

army;50 and 2) federal militia powers obviated the need for, or

minimized the likelihood of, a large standing army being kept in

existence.51

The Federalists also responded to the militia issue by arguing

that the states had concurrent power to arm the militia, but this

position was undermined when the Anti-Federalists invited the

Federalists to put that state power in writing and that would have

necessitated the return to the drawing board in another

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.

60
Constitutional convention that the Federalists were committed to

avoiding.52

The Federalist position as to the militia and standing army

issues depended upon the people being armed notwithstanding that

the Constitution did not guarantee the right of the people to be

armed.53

4. State Ratifications

Congress forwarded the Constitution to the states on September

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.

61
28, 1787. State conventions began considering the Constitution

later that year. By April 28, 1788, Delaware, New Jersey, Georgia,

Connecticut and Maryland had ratified the Constitution without

proposing any additions or changes to it. The first sign of

trouble in a state convention was in Pennsylvania in December of

1787.

a. Pennsylvania

In the Pennsylvania convention, the Federalists outnumbered

the Anti-Federalists about two to one. Not surprisingly, then, on

December 12, 1787, the Pennsylvania convention ratified the

Constitution by a vote of 46 to 23. The convention did not propose

any changes to the Constitution. However, the disenchanted Anti-

Federalists, known as the Pennsylvania Minority, explained that

they would have agreed to the Constitution if it had been amended

to reflect fourteen principles, among which were the following:

“7. That the people have a right to bear arms for the
defense of themselves and their own state, or the United
States, or for the purpose of killing game; and no law
shall be passed for disarming the people or any of them,
unless for crimes committed, or real danger of public
injury from individuals; and as standing armies in the
time of peace are dangerous to liberty, they ought not to
be kept up; and that the military shall be kept under
strict subordination to and be governed by the civil
power.
....
11. That the power of organizing, arming, and
disciplining the militia (the manner of disciplining the
militia to be prescribed by Congress) remain with the
individual states, and that Congress shall not have
authority to call or march any of the militia out of
their own state, without the consent of such state and
for such length of time only as such state shall agree.”

62
2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 623-24

(Merrill Jensen, ed. 1976). Note that “bear arms” clearly pertains

to private, civilian wearing or carrying of arms and the power of

the state to organize, arm and discipline the militia is in a

separate section, indicating that the Anti-Federalists viewed these

issues as distinct.

b. Massachusetts

Massachusetts ratified the Constitution on February 7, 1788,

by a vote of 187 to 168. Although the convention proposed nine

amendments, none of them has relevance to the issues with which we

are concerned. However, during the Massachusetts convention,

Samuel Adams proposed the following amendments:

“And that the said Constitution be never construed to
authorize Congress to infringe the just liberty of the
press, or the rights of conscience; or to prevent the
people of the United States, who are peaceable citizens,
from keeping their own arms; or to raise standing armies,
unless when necessary for the defense of the United
States, or of some one or more of them; or to prevent the
people from petitioning, in a peaceable and orderly
manner, the federal legislature, for a redress of
grievances; or to subject the people to unreasonable
searches and seizures of their persons, papers or
possessions.”

DEBATES OF THE MASSACHUSETTS CONVENTION OF 1788 86-87, 266 (Boston, 1856).

This is another indication that the Anti-Federalists desired

protection for the right of all peaceful citizens to keep arms as

well as a limitation on the power of the federal government to

maintain a large standing army.

c. South Carolina

63
 The South Carolina Convention ratified the Constitution on May

23, 1788, stating two understandings and proposing two amendments,

none of which are relevant to the issues before us.

d. New Hampshire

After adjourning on February 22, 1788, to avoid rejection of

the Constitution, New Hampshire ratified the Constitution on June

21, 1788, by a vote of 57 to 47. The New Hampshire convention

proposed twelve amendments, the first nine of which are identical

to Massachusetts’. New Hampshire’s proposed Amendments 10 and 12

were as follows:

“X. That no standing army shall be kept up in time of
peace, unless with the consent of three-fourths of the
members of each branch of Congress; nor shall soldiers,
in time of peace, be quartered upon private houses,
without the consent of the owners.
....
XII. Congress shall never disarm any citizen, unless such
as are or have been in actual rebellion.”

1 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION

OF THE FEDERAL CONSTITUTION 326 (2d ed., 1836). New Hampshire sought to

protect the individual right of all citizens to have arms and,

separately, to limit the power of the federal government to

maintain a large standing army.

e. Virginia

On June 25, 1788, the Virginia convention ratified the

Constitution by a vote of 89 to 79. The convention proposed a bill

of rights containing twenty separate provisions and, in a separate

section, proposed twenty amendments to the Constitution. The

64
seventeenth part of Virginia’s proposed Bill of Rights and the

ninth and eleventh parts of its proposed amendments to the

Constitution were as follows:

[Bill of Rights section.]
“17th. 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; that standing armies,
in time of peace, are dangerous to liberty, and therefore
ought to be avoided, as far as the circumstances and
protection of the community will admit; and that, in all
cases, the military should be under strict subordination
to, and governed by, the civil power.

[Amendments to the Constitution section.]
9th. That no standing army, or regular troops, shall be
raised, or kept up, in time of peace, without the consent
of two thirds of the members present, in both houses.

11th. 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.”

3 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION

OF THE FEDERAL CONSTITUTION 658, 660 (2d ed., 1836). The bill of rights

provision, after stating “[t]hat the people have a right to keep

and bear arms,” goes on to make general, philosophical observations

about the militia and standing armies. However, these general,

philosophical observations are given their legal effectuation

through separate, specific provisions apart from the Bill of

Rights. The Virginia convention realized that statements in the

65
proposed Bill of Rights that militias are good and standing armies

are bad fell short of adding to the power of the states or

subtracting from the power of the federal government. In the

separate and distinct amendments section, the states were

explicitly given militia powers and the federal government was

forbidden to maintain a standing army unless other specific

criteria were satisfied.

f. New York

On July 26, 1788, New York ratified the Constitution by a vote

of 30 to 27. New York incorporated an extensive Declaration of

Rights and thirty-three proposed amendments to the Constitution

into its ratification. The relevant portions of each are:

[Declaration of Rights section.]
“That the people have a right to keep and bear arms; that
a well-regulated militia, including the body of the
people capable of bearing arms, is the proper, natural,
and safe defence of a free state.
...
That standing armies, in time of peace, are dangerous to
liberty, and ought not to be kept up, except in cases of
necessity; and that at all times the military should be
under strict subordination to the civil power.

[Amendments to the Constitution section.]
That no standing army or regular troops shall be raised,
or kept up, in time of peace, without the consent of two
thirds of the senators and representatives present in
each house.”

1 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION

OF THE FEDERAL CONSTITUTION 328, 330 (2d ed., 1836). Note that: 1) the

philosophical declaration concerning the preferability of a

militia, which follows the statement “[t]hat the people have a

66
right to keep and bear arms,” is not effectuated in the amendments

section by a grant of power to the states to maintain a militia;

and 2) there is a separate clause in the Declaration of Rights

section regarding standing armies which is effectuated by a

separate proposed amendment to the Constitution. This is another

example that philosophical declarations alone were considered

insufficient to subtract from the federal government’s power or to

add to the states’ power.

g. North Carolina

On August 1, 1788, North Carolina refused to ratify the

Constitution until a bill of rights and other amendments were

added. The North Carolina convention demanded the same Bill of

Rights and amendments as proposed by Virginia. It was not until

November 21, 1789, after the Bill of Rights was forwarded by the

First Congress to the states, that North Carolina finally ratified

the Constitution by a vote of 194-77.

h. Rhode Island

Rhode Island did not ratify the Constitution until May 29,

1790, and then by a vote of 34-32. Rhode Island incorporated a

bill of rights into its ratification and proposed twenty-one

amendments to the Constitution. The apposite portions of each are:

[Declaration of Rights section.]
“XVII. That the people have a right to keep and bear
arms; that a well-regulated militia, including the body
of the people capable of bearing arms, is the proper,
natural, and safe defence of a free state; that the
militia shall not be subject to martial law, except in

67
 time of war, rebellion, or insurrection; that standing
armies, in time of peace, are dangerous to liberty, and
ought not to be kept up, except in cases of necessity;
and that, at all times, the military should be under
strict subordination to the civil power; that, in time of
peace, no soldier ought to be quartered in any house
without the consent of the owner, and in time of war only
by the civil magistrates, in such manner as the law
directs.

[Amendments to the Constitution section.]
XII. As standing armies, in time of peace, are dangerous
to liberty, and ought not to be kept up, except in cases
of necessity, and as, at all times, the military should
be under strict subordination to the civil power, that,
therefore, no standing army or regular troops shall be
raised or kept up in time of peace.”

Id. at 335-36. Note how even the amendment regarding standing

armies contains two philosophical declarations before getting to the

substantive restriction on federal power, namely that no army shall

be maintained during peacetime.

5. Proposal of Second Amendment

By mid 1788, the required nine states had ratified the

Constitution, and it was clear the Federalists had won a major

victory. But by the spring of 1789, the Anti-Federalists had

succeeded in persuading many that a bill of rights was absolutely

necessary. Some Anti-Federalists did continue to argue for

additional, structural changes to the Constitution, but most were

primarily concerned with a bill of rights. At the same time, while

some Federalists continued to reject any changes to the

Constitution, most softened their opposition to a bill of rights,

mindful of the strong public support for it and aware that a bill

68
of rights would not materially affect the plan of government they

had worked so diligently to implement. See President George

Washington, Inaugural Address, April 30, 1789 (excerpt reprinted in

Young, supra note 34, at 642) (“I assure myself that whilst you

carefully avoid every alteration which might endanger the benefits

of an united and effective government, or which ought to await the

future lessons of experience; a reverence for the characteristic

rights of freemen, and a regard for the public harmony, will

sufficiently influence your deliberations on the question how far

the former can be more impregnably fortified, or the latter be

safely and advantageously promoted.”); Letter from Charles Smith to

Tench Coxe (October 18, 1788) (excerpt reprinted in Young, supra

note 34, at 542) (“It seems, therefore, to be the wish of the

moderate and reasonable men of all parties that some necessary

explanations should take place, in order to quiet the minds of our

dissenting fellow citizens, and to introduce union and harmony

throughout the state. Attention to this subject ought to be

considered as a duty incumbent upon our first federal

Representatives.”). Thus, as there sometimes is after a hard-fought

political struggle, most of the combatants, for the good of the

country, sought middle ground.

Federalist James Madison ran for a seat in the First Congress,

and because of the strong public support for a bill of rights

clarified his own support for it:

69
 “The offer of my services to the district, rests on the
following grounds:–That although I always conceived the
constitution might be improved, yet I never could see in
it, as it stands, the dangers which have alarmed many
respectable citizens; that I held it my duty therefore,
whilst the constitution remained unratified, and it was
necessary to unite the various opinions, interests and
prejudices of the different states, in some one plan, to
oppose every previous amendment, as opening a door for
endless and dangerous contentions among the states, and
giving an opportunity to the secret enemies of the union
to promote its dissolution:–That the change of
circumstances produced by the secure establishment of the
plan proposed, leaves me free to espouse such amendments
as will, in the most satisfactory manner, guard essential
rights, and will render certain vexatious abuses of power
impossible . . .”

James Madison, Extract of a letter from the Hon. JAMES MADISON,

jun. to his friend in this county, Fredericksburg VIRGINIA HERALD,

January 29, 1788 (reprinted in Young, supra note 34, at 609). The

Federalists ended up with a majority in both the House and the

Senate. But as the eventual adoption of a bill of rights shows,

many Federalists were as open to a bill of rights as James Madison

himself was. See Letter from James Madison to Edmund Pendleton

(April 8, 1789) (excerpt reprinted in Young, supra note 34, at 640)

(“The subject of amendments has not yet been touched–From

appearances there will be no great difficulty in obtaining

reasonable ones. It will depend however entirely on the temper of

the federalists, who predominate as much in both branches, as could

be wished. Even in this State [Virginia], notwithstanding the

violence of its antifederal symptoms, three of its six

representatives at least will be zealous friends to the

70
Constitution, and it is not improbable that a fourth will be of the

same description.”). The Anti-Federalists sensed that although the

tide had turned their way as to alterations that would secure

individual liberty, the prospects for other changes to the

Constitution were dim. See Letter from Richard Henry Lee to

Patrick Henry (May 28, 1789) (excerpt reprinted in Young, supra

note 34, at 644)(“I think, from what I hear and see, that many of

our amendments will not succeed, but my hopes are strong that such

as may effectually secure civil liberty will not be refused.”).

a. Legislative History

On June 8, 1789, Virginia Congressman James Madison proposed

several alterations to the Constitution in the First Congress. In

his address to the House, Madison explained his rationale in

proposing the changes:

“I wish, among other reasons why something should be
done, that those who have been friendly to the adoption
of this constitution may have the opportunity of proving
to those who were opposed to it that they were as
sincerely devoted to liberty and a Republican Government,
as those who charged them with wishing the adoption of
this constitution in order to lay the foundation of an
aristocracy or despotism. It will be a desirable thing
to extinguish from the bosom of every member of the
community, any apprehension that there are those among
his countrymen who wish to deprive them of the liberty
for which they valiantly fought and honorably bled. And
if there are amendments desired of such a nature as will
not injure the constitution, and they can be ingrafted so
as to give satisfaction to the doubting part of our
fellow-citizens, the friends of the Federal Government
will evince that spirit of deference and concession for
which they have hitherto been distinguished.
....
I should be unwilling to see a door opened for a re-

71
 consideration of the whole structure of the
Government–for a re-consideration of the principles and
the substance of the powers given; because I doubt, if
such a door were opened, we should be very likely to stop
at that point which would be safe to the Government
itself. But I do wish to see a door opened to consider,
so far as to incorporate those provisions for the
security of rights, against which I believe no serious
objection has been made by any class of our constituents:
such as would be likely to meet with the concurrence of
two-thirds of both Houses, and with the approbation of
three-fourths of the State Legislatures.”

James Madison, House of Representatives, June 8, 1789 (excerpt

reprinted in Young, supra note 34, at 651-53). Madison proposed to

insert, in Article I, Section 9, between its Clauses 3 and 4, the

following clause (among others):

“The right of the people to keep and bear arms shall not
be infringed; a well armed and well regulated militia
being the best security of a free country; but no person
religiously scrupulous of bearing arms shall be compelled
to render military service in person.”54

Id. at 654-55. Article I, Section 9 contains nothing but

restrictions upon the power of the federal government; and its

54
This was one of several clauses which Madison’s proposal, in its
fourth (“fourthly”) section, called for to be inserted in art. I, § 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 III, § 2.
Madison’s proposal called for what became the Tenth Amendment to
be (together with a separation of powers provision) in a new Article
VII, with existing Article VII to be renumbered Article VIII.
Madison also proposed to amend Art. I, § 2, cl. 3 (number of
representatives), Art. I, § 6, cl. 1 (compensation of representatives),
and Art. I, § 10 (to prohibit states from denying equal rights of
conscience, freedom of the press or jury trial in criminal cases).

72
Clauses 2 and 3 relate only to individual rights (habeas corpus,

bill of attainder and ex post facto).

Madison’s proposal was eventually submitted to a House

committee of eleven members, of which Madison was one. That

committee issued its report on July 28, 1789. The clause that

would become the Second Amendment then read:

“A well regulated militia, composed of the body of the
people, being the best security of a free state, the
right of the people to keep and bear arms shall not be
infringed, but no person religiously scrupulous shall be
compelled to bear arms.” House of Representatives,
Proceedings on Amendments, July 28, 1789 (reprinted in
Young, supra note 34, at 680-82).

Thus, the philosophical declaration was moved to precede the

substantive guarantee and “composed of the body of the people” was

added just after “militia.”

The House began its consideration of what would become the

Second Amendment on August 17, 1789. Congressman Gerry moved to

strike the religiously scrupulous exemption. See House of

Representatives, Debate, August 17, 1789 (excerpt reprinted in

Young, supra note 34, at 695-99). This motion was defeated by a

vote of 24-22; however, this language would later be dropped by the

Senate. Opponents of the individual rights model find hope in the

initial appearance of the religiously scrupulous exemption and

comments made by Congressman Gerry in attempting to excise it.

They argue that because “bear arms” has a military connotation in

the religiously scrupulous clause, it necessarily carries the same

73
meaning in the substantive guarantee. This construction is

supported, we are told, by Gerry’s objection. Gerry feared that

the federal government would use the clause to destroy the militia

by declaring a large number of people religiously scrupulous and,

therefore, ineligible for militia service. This would pave the way

for oppression by the federal government’s standing army.

“This declaration of rights, I take it, is intended to
secure the people against the mal-administration of the
Government; if we could suppose that, in all cases, the
rights of the people would be attended to, the occasion
for guards of this kind would be removed. Now, I am
apprehensive, sir, that this clause would give an
opportunity to the people in power to destroy the
constitution itself. They can declare who are those
religiously scrupulous, and prevent them from bearing
arms.
What, sir, is the use of a militia? It is to prevent the
establishment of a standing army, the bane of liberty.
Now, it must be evident, that, under this provision,
together with their other powers, Congress could take
such measures, with respect to a militia, as to make a
standing army necessary. Whenever governments mean to
invade the rights and liberties of the people, they
always attempt to destroy the militia, in order to raise
an army upon their ruins.”

Id. at 695-96. Gerry concluded by proclaiming, “[n]ow, if we give

a discretionary power to exclude those from militia duty who have

religious scruples, we may as well make no provision on this

head.”55 The inference urged is that the only purpose of the

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).

74
substantive guarantee was to secure the right of militia members to

bear arms in a military context. This interpretation of Gerry’s

statements appears somewhat strained. We think that Gerry’s

comments manifested his opinion that: 1) it takes a well regulated

militia, not the mere private possession of firearms, to obviate

the need for a standing army; and 2) an armed populace offers much

less protection against a standing army than a well regulated

militia. If Gerry saw any conflict between the amendment’s

substantive guarantee and the destruction of the militia which was

supposedly enabled by the religiously scrupulous clause, he did not

say so. In fact, Gerry’s objection assumes that the amendment does

not increase state power over the militia and that the preamble is

but a philosophical declaration as to the necessity of a well

regulated militia that does nothing to disturb Art. I, § 8, cl. 16,

to which Gerry must be referring to as the source of the power of

the federal government to destroy the militia. Gerry’s concern was

directed to the creation of a standing army; he does not express

any worry that the feared purging of the rolls of the militia would

enable the federal government to confiscate privately owned

firearms, no doubt because the substantive guarantee applies to all

the people, not just those that at a given time might comprise the

militia. Properly understood, Gerry’s remarks are not inconsistent

with the individual rights view of the Second Amendment.

Gerry was not the only member of the First Congress to express

75
concern over the religiously scrupulous clause. Three days later,

on August 20, 1789, Congressman Scott complained of it as well.

“Mr. Scott objected to the clause in the sixth amendment,
‘No person religiously scrupulous shall be compelled to
bear arms.’ He observed that if this becomes part of the
constitution, such persons can neither be called upon for
their services, nor can an equivalent be demanded; it is
also attended with still further difficulties, for a
militia can never be depended upon. This would lead to
the violation of another article in the constitution,
which secures to the people the right of keeping arms,
and in this case recourse must be had to a standing
army.”

House of Representatives, Debates, August 20, 1789 (excerpt

reprinted in Young, supra note 34, at 703). Congressman Boudinot

opposed striking the clause, in part because such action would

imply the federal government is going to “compel all its citizens

to bear arms.” Id. The House ended up adding “in person” to the

end of the clause. Id. We find no meaningful support, in

Congressman Scott’s statement, for either the states’ rights or the

sophisticated collective rights models. Scott was not concerned,

as Gerry was, that the federal government would use the religiously

scrupulous clause as a ruse to exclude everyone from militia

service. Scott was worried that too many individual Americans

would avail themselves of the clause’s protection and that this

would cause the militia to be so weakened that the federal

government would have no choice but to maintain a standing army.

It is not exactly clear where Scott found violation of the people’s

right to keep arms. The lack of a dependable militia both leads to

76
Scott’s hypothetical violation and necessitates recourse to a

standing army. It is possible that Scott found, in the amendment’s

philosophical declaration, some sort of right of the people to be

free from a standing army.56 In any case, this cryptic passage does

not plainly lend support to any of the Second Amendment models.

The only change that resulted from this discussion was the addition

of the words “in person” at the end of the amendment and, as

mentioned, the entire religiously scrupulous clause was later

deleted by the Senate.

Congressman Burke repeatedly proposed that a clause be added

to the amendment that would have required the consent of two-thirds

of both houses of Congress to maintain a standing army in time of

peace. This proposal was defeated by a margin of almost two to

one. House of Representatives, Debates, August 17, 1789 (excerpt

reprinted in Young, supra note 34, at 697-98).

On August 24, 1789, the House completed its work on the

proposed amendments and forwarded them to the Senate. At this

time, the amendment read:

“A well regulated militia, composed of the body of the
people, being the best security of a free state, the
right of the people to keep and bear arms, shall not be
infringed, but no one religiously scrupulous of bearing
arms, shall be compelled to render military service in
person.”

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.

77
House of Representatives, Proceedings, August 24, 1789 (excerpt

reprinted in Young, supra note 34, at 707).

The Senate, which had the House action before it from August

25 through September 9, 1789, made three changes: 1) the words

“composed of the body of the people” were stricken; 2) the words

“the best” were replaced by “necessary to the”; and 3) the entire

religiously scrupulous clause was stricken. See THE COMPLETE BILL OF

RIGHTS 173-76 (Neil H. Cogan, ed., 1997). The Senate debates were

conducted in secret, so there is no direct evidence of why these

changes were made. The Senate rejected a proposed amendment to add

the words “for the common defense” just after “the right of the

people to keep and bear arms”. Id. Like the House, the Senate

rejected a proposed amendment that would have required the consent

of two-thirds of both houses of Congress to maintain a standing

army in time of peace. Id. The Senate on September 8, 1789 also

refused to adopt an amendment that would have given the states

power to arm and train their militias.57

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

78
 The most significant Senate action is the rejection of the

amendment that would have granted the power of the states to arm

and train their own militias. This is, of course, the precise

effect the states’ rights model attributes to the Second Amendment.

Proponents of that model argue that the rejection of that amendment

simply indicates that this concern was already addressed, i.e. that

the rejected amendment would have been mere surplusage. This is

highly implausible, particularly given the Second Amendment’s

placement within the Bill of Rights, its “the right of the people”

language identical to that of the First and Fourth Amendments, and

its lack of any reference to the power or rights of the states, all

as contrasted to the direct and explicit state power language of

the rejected amendment. Moreover, this surplusage explanation also

ignores that in the state conventions the right to keep and bear

arms was always in the Bill of Rights section of proposed changes,

while the state power to arm and train the militia was always in a

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.

79
separate section or at least a separate article.

Not surprisingly, the significance of the Senate’s other

alterations or rejections is open to question. It could be argued

that the striking of the words “composed of the body of the people”

supports the sophisticated collective rights view that “militia” in

the Second Amendment really means “select militia” and, therefore,

pertains only to our modern national guard. However, there is an

abundance of historical evidence that indicates the Anti-

Federalists abhorred the idea of a select militia every bit as much

as a standing army.58 Clearly, if the

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.”);
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

80
Anti-Federalists believed the amendment offered any support for the

formation of a select militia, or only recognized the right of

members of the select militia to keep and bear arms while on active

duty, they would have vociferously opposed it. It must be

remembered that the entire goal of submitting amendments was to

pacify, not infuriate, the Anti-Federalists. This suggests that

the words “composed of the body of the people” were stricken as

unnecessary surplusage.

The replacement of “best” with “necessary to the” strengthens

the philosophical declaration’s support for a militia. As the

rejection of standing army amendments in the House and Senate, as

well as subsequent history, show, even this bolder statement did

not serve to limit the power of the federal government to maintain

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 . . .
.”).

81
a large standing army. Probably the only bearing this change has

on the task before this Court is that it makes the sophisticated

collective rights model’s contention that “militia” really means

national guard or “select militia” even more questionable. Anti-

Federalists would never have accepted that a select militia was the

best security (or anything but a threat to) “a free state,” much

less necessary to the security of “a free state.”

Opponents of the individual rights model claim the Senate

refused to add “for the common defense” after the amendment’s

substantive guarantee because those words were unnecessary

surplusage. Given the amendment’s text and history, which, almost

without exception, support the individual rights view, we believe

it much more likely that the Senate rejected this language because

it potentially posed the risk of an interpretation contracting the

substantive guarantee.

Finally, perhaps the least relevant Senate change is the

deletion of the religiously scrupulous clause. This may well have

been because the Senate felt that the clause was not sufficiently

germane to an amendment whose core purpose was to state the

affirmative rights of individuals as opposed to limitations on

their potential obligations, or, relatedly, that the clause dealt

with a relatively minor, collateral matter which was not worth the

controversy and/or confusion it had generated or could generate.

Or, the Senate might simply have felt (as did Congressman Benson,

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see note 55 supra) this would be better left to the wisdom and

discretion of a future Congress.

The House approved the Senate version of the amendment, and

Congress forwarded it to the states along with the rest of the Bill

of Rights on September 26, 1789.59

b. Political Discourse

At the same time the above legislative history was being made,

prominent Americans were writing in the newspapers and to each

other. These writings provide some insight into the nature

(individual or collective) of the Second Amendment.

Anti-Federalist William Grayson expressed concern to fellow

Anti-Federalist Patrick Henry that the only amendments that would

be approved are those, like Madison’s, that recognize individual

rights:

“I am exceedingly sorry it is out of my power to hold out
to you any flattering expectations on the score of
amendments; it appears to me that both houses are almost
wholly composed of federalists; those who call themselves
Antis are so extremely lukewarm as scarcely to deserve
the appellation: Some gentlemen here from motives of
policy have it in contemplation to effect amendments
which shall effect personal liberty alone, leaving the
great points of the judiciary, direct taxation &c, to
stand as they are . . . . Last Monday a string of
amendments were presented to the lower House; these
altogether respected personal liberty . . . .”

59
Sent to the states at the same time were proposed amendments to
Art. I, § 2, cl. 3 (number of representatives) and Art. I, § 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.

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Letter from William Grayson to Patrick Henry (June 12, 1789)

(excerpt reprinted in Young, supra note 34, at 668-69).

Federalist Fisher Ames was pleased that Madison’s amendments

primarily concerned noncontroversial individual rights.

“Mr. Madison has inserted, in his amendments, the
increase of representatives, each State having two at
least. The rights of conscience, of bearing arms, of
changing the government, are declared to be inherent in
the people. Freedom of the press, too. There is a
prodigious great dose of medicine. But it will stimulate
the stomach as little as hasty-pudding. It is rather
food than physic. Am [sic] immense mass of sweet and
other herbs and roots for a diet drink.”

Letter from Fisher Ames to George Richards Minot (June 12, 1789)

(excerpt reprinted in Young, supra note 34, at 668).

Federalist Tench Coxe, in a widely republished article,

described what would become the Second Amendment this way:

“As civil rulers, not having their duty to the people,
duly before them, may attempt to tyrannize, and as the
military forces which shall be occasionally raised to
defend our country, might pervert their power to the
injury of their fellow-citizens, the people are confirmed
by the next article in their right to keep and bear their
private arms.”

A Pennsylvanian [Federalist Tench Coxe], REMARKS on the first part

of the AMENDMENTS to the FEDERAL CONSTITUTION, moved on the 8th

instant in the House of Representatives, Philadelphia FEDERAL GAZETTE,

June 18, 1789 (excerpt reprinted in Young, supra note 34, at 671).

That same day, Coxe wrote to Madison, discussing public reaction to

Madison’s proposed amendments and his own comments thereon which

appeared in the Federal Gazette. See Young, supra note 34, at

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672. Madison responded:

“Accept my acknowledgments for your favor of the 18th.
instant. The printed remarks inclosed in it are already
I find in the Gazettes here. It is much to be wished
that the discon[ten]ted part of our fellow Citizens could
be reconciled to the Government they have opposed, and by
means as little as possible unacceptable to those who
approve the Constitution in its present form. The
amendments proposed in the H. of Reps. had this twofold
object in view; besides the third one of avoiding all
controvertible points which might endanger the assent of
2/3 of each branch of Congs and 3/4 of the State
Legislatures. How far the experiment may succeed in any
of these respects, is wholly uncertain. It will however
be greatly favored by explanatory strictures of a healing
tendency, and is therefore already indebted to the co-
operation of your pen.”

Letter from James Madison to Tench Coxe (June 24, 1789) (excerpt

reprinted in Young, supra note 34, at 673-74). Thus, consistent

with his other statements, Madison seems to have endorsed Coxe’s

individual rights explanation of what would become the Second

Amendment. Note that Coxe made no mention of the philosophical

declaration regarding a well regulated militia, but only referred

to the provision’s substantive guarantee and also that Coxe’s

reference to “private arms” is essentially inconsistent with both

the states’ rights and sophisticated collective rights models.

Opponents of the individual rights view dispute that Madison’s

letter was an endorsement of Coxe’s explanation of the amendments,

claiming that Madison disagreed with Coxe’s explanation of the

right of conscience. In other words, they say that Madison was

just being polite to Coxe for his attempt to explain the amendments

and may not have agreed with all of the positions Coxe took. Two

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problems with this view are that there is no evidence that anybody

disagreed with Coxe’s explanation of the Second Amendment and that

Madison’s notes for his speech supporting the amendments indicate

that they “relate 1st to private rights”. James Madison, Notes for

speech in Congress supporting Amendments (June 8, 1789) (reprinted

in Young, supra note 34, at 645).

Joseph Jones, in a letter to James Madison, wrote:

“I thank you for the copy of the amendments proposed to
the constitution which you lately inclosed to me–they are
calculated to secure the personal rights of the people so
far as declarations on paper can effect the purpose,
leaving unimpaired the great Powers of the
government–they are of such a nature as to be generally
acceptable and of course more likely to obtain the assent
of Congress that wod. any proposition tending to separate
the powers or lessen them in either branch.”

Letter from Joseph Jones to James Madison (June 24, 1789) (excerpt

reprinted in Young, supra note 34, at 673). Surely Mr. Jones would

have distinguished an amendment that did not secure “personal

rights.”

Anti-Federalist Samuel Nasson recognized that the amendment

guaranteed the right of individuals to keep arms for any lawful

purpose.

“I find that Amendments are once again on the Carpet. I
hope that such may take place as will be for the Best
Interest of the whole[.] A Bill of rights well secured
that we the people may know how far we may Proceade in
Every Department[,] then their [sic] will be no Dispute
between the people and rulers[.] [I]n that may be secured
the right to keep arms for Common and Extraordinary
Occations such as to secure ourselves against the wild
Beast and also to amuse us by fowling and for our Defence

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 against a Common Enemy[.] [Y]ou know to learn the Use of
arms is all that can Save us from a forighn foe that may
attempt to subdue us[,] for if we keep up the Use of arms
and become well acquainted with them we Shall allway be
able to look them in the face that arise up against us[,]
for it is impossible to Support a Standing armey large
Enough to Guard our Lengthy Sea Coast[.]”

Letter from Samuel Nasson to George Thatcher (July 9, 1789)

(excerpt reprinted in Young, supra note 34, at 796-97) (emphasis

added).

While Congressman Fisher Ames, a very strong Federalist, was

pleased that Madison’s amendments seemed unlikely to cause discord,

he also expressed chagrin that the amendments were so focused on

protecting the rights of the rabble that they did not belong in the

Constitution.

“We have had the amendments on the tapis, and referred
them to a committee of one from a State. I hope much
debate will be avoided by this mode, and that the
amendments will be more rational, and less ad populum,
than Madison’s. It is necessary to conciliate, and I
would have amendments. But they should not be trash,
such as would dishonor the Constitution, without pleasing
its enemies. Should we propose them, North Carolina
would accede. It is doubtful, in case we should not.”

Letter from Fisher Ames to George Richards Minot (July 23, 1789)

(excerpt reprinted in Young, supra note 34, at 679).

Congressman William L. Smith viewed the Bill of Rights as

recognizing individual rights, not the structure of government.

“The Committee on amendmts. have reported some, which are
thought inoffensive to federalists & may do some good on
the other side: N. Car[olin]a. only wants some pretext to
come into the Union, & we may afford that pretext by
recommending a few amendments.
There appears to be a disposition in our house to agree

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 to some, which will more effectually secure private
rights, without affecting the structure of Govt.”

Letter from William L. Smith to Edward Rutledge (August 9, 1789)

(excerpt reprinted in Young, supra note 34, at 798) (emphasis

added).

Pennsylvania Congressman Frederick A. Muhlenberg believed the

Bill of Rights would placate “our Minority in Pennsylvania.”

“Altho’ I am sorry that so much Time has been spent in
this Business [the Bill of Rights], and would much rather
have had it postponed to the next Session, yet as it now
is done I hope it will be satisfactory to our State, and
as it takes in the principal Amendments which our
Minority had so much at Heart, I hope it may restore
Harmony & unanimity amongst our fellow Citizens . . . .”

Letter from Frederick A. Muhlenberg to Benjamin Rush (August 18,

1789) (excerpt reprinted in Young, supra note 34, at 799) (emphasis

added). Recall that the Pennsylvania Minority proposed what was

indisputably an individual right to keep and bear arms.

Some Anti-Federalists were upset that Federalist James Madison

was getting all the credit for proposing the Bill of Rights. They

believed much of this credit was due Samuel Adams. Recall that

Adams unsuccessfully proposed his own set of amendments to the

Massachusetts Convention (and was much criticized for making the

attempt).

“It may well be remembered that the following
‘amendments’ to the new constitution for these United
States, were introduced to the convention of this
commonwealth by its present Lieutenant Governor, that
venerable patriot, SAMUEL ADAMS.–It was his misfortune to
have been misconceived, and the proposition was
accordingly withdrawn–lest the business of the convention

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 (the session of which was then drawing to a period) might
be unexpectedly protracted. His enemies triumphed
exceedingly, and affected to represent his proposal as
not only an artful attempt to prevent the constitution
being adopted in this state, but as an unnecessary and
improper alteration of a system, which did not admit of
improvements. To the honor of this gentlemen’s
penetration, and of his just way of thinking on this
important subject, every one of his intended alterations,
but one, have been already reported by the committee of
the House of Representatives in Congress, and most
probably will be adopted by the federal legislature. In
justice therefore to that long tried Republican, and his
numerous friends, you gentlemen, are requested to re-
publish his intended alterations, in the same paper that
exhibits to the public, the amendments which the
committee have adopted, in order that they may be
compared together.”

Letter from Mssrs. Adams & Nourse to the Editor of the Boston

Independent Chronicle, Philadelphia INDEPENDENT GAZETTEER, August 20,

1789 (reprinted in Young, supra note 34, at 701-702). This is

significant because Adams’ amendments prohibited the Constitution

from ever being construed to “prevent the people of the United

States who are peaceable citizens, from keeping their own arms.”

Id. This language is not at all susceptible to the states’ rights

or sophisticated collective rights views.

Many Anti-Federalists supported the Bill of Rights,

notwithstanding that it fell far short of delivering what they had

fought for in the state conventions. But at least one famous Anti-

Federalist was enraged that the amendments did not alter the

balance of power between the federal and state governments,

particularly as to control over the militia.

“What would be your opinion of the man who, living where

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 thieves were so numerous and vigilant as to improve every
opportunity of plunder, should go to sleep at night in
thoughtless security, with his doors wide open . . .
Similar would be the conduct of the people of the
United States, if they rest the security of their
invaluable privileges upon the partial amendments making
by Congress to the new constitution: for although many of
these amendments are very proper and necessary, yet
whilst the constitution is suffered to retain powers that
may not only defeat their salutary operation, but may,
and incontrovertibly will be so decisively injurious as
to sweep away every vestige of liberty; it is an insult
upon the understanding and discernment of the people to
flatter them with the secure enjoyment of privileges,
that are held by so precarious and transient a tenure.
Besides, some of these limited, insecure amendments,
which, to a superficial observer, seem to contain useful
provisions, when examined with attention, are found to be
delusive and inoperative. I will instance two or three
of them.
....
Article 5th of the proposed amendments–‘A well regulated
militia, composed of the body of the people, being the
best security of a free state, the right of the people to
keep and bear arms, shall not be infringed, &c.’ It is
remarkable that this article only makes the observation,
‘that a well regulated militia, composed of the body of
the people, is the best security of a free state;’ it
does not ordain, or constitutionally provide for, the
establishment of such a one. The absolute command vested
by other sections in Congress over the militia, are not
in the least abridged by this amendment. The militia may
still be subjected to martial law and all its concomitant
severities, and disgraceful punishments, may still be
marched from state to state and made the unwilling
instruments of crushing the last efforts of expiring
liberty.”

Centinel, Revived, No. XXIX, Philadelphia INDEPENDENT GAZETTEER,

September 9, 1789 (excerpt reprinted in Young, supra note 34, at

711-12). Extreme Anti-Federalists like the Centinel would not be

placated by mere recognition of a right about which the Federalists

and Anti-Federalists were in agreement: the right of the people to

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keep and bear arms. In the Centinel’s view, as long as the federal

government had such extensive power over the militia, the people’s

liberties were not safe. The Centinel simply rejected the

Federalists repeated argument that there was no need to worry about

a standing army as long as individuals were armed. The Centinel

also correctly observed that the amendment’s preamble did nothing

to alter the balance (or imbalance) of power between the state and

federal governments as to the militia.

6. 19th Century Commentary

The great Constitutional scholars of the 19th Century

recognized that the Second Amendment guarantees the right of

individual Americans to possess and carry firearms. We list their

contributions in the order in which they were made. First, St.

George Tucker:

“8. 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. Amendments to
C.U.S. Art. 4.
This may be considered as the true palladium of
liberty. . . . The right of self defence is the first law
of nature: in most governments it has been the study of
rulers to confine this right within the narrowest limits
possible. Wherever standing armies are kept up, and the
right of the people to keep and bear arms is, under any
colour or pretext whatsoever, prohibited, liberty, if not
already annihilated, is on the brink of destruction. In
England, the people have been disarmed, generally, under
the specious pretext of preserving the game: a never
failing lure to bring over the landed aristocracy to
support any measure, under that mask, though calculated
for very different purposes. True it is, their bill of
rights seems at first view to counteract this policy: but
the right of bearing arms is confined to protestants, and
the words suitable to their condition and degree, have

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 been interpreted to authorise the prohibition of keeping
a gun or other engine for the destruction of game, to any
farmer, or inferior tradesman, or other person not
qualified to kill game. So that not one man in five
hundred can keep a gun in his house without being subject
to a penalty.”

1 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE,

TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED

STATES; AND OF THE COMMONWEALTH OF VIRGINIA, 300 (1803) (ellipsis in

original). Note how the fact that the Second Amendment

applies to Americans generally is sharply contrasted with, and

favorably compared to, the relevant part of the English Bill

of Rights, which only pertained to Protestants and even for

those only as “suitable to their condition and degree.” The

Amendment is said to facilitate the right of self defense.

Having individuals armed is particularly necessary when

standing armies are kept up, as the combination of a standing

army and a disarmed populace threatens the destruction of

liberty.

Second, William Rawle:

“In the second article, it is declared, that a well
regulated militia is necessary to the security of a free
state; a proposition from which few will dissent.
Although in actual war, the services of regular troops
are confessedly more valuable; yet, while peace prevails,
and in the commencement of a war before a regular force
can be raised, the militia form the palladium of the
country. They are ready to repel invasion, to suppress
insurrection, and preserve the good order and peace of
government. That they should be well regulated, is
judiciously added. A disorderly militia is disgraceful
to itself, and dangerous not to the enemy, but to its own
country. The duty of the state government is, to adopt

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 such regulations as will tend to make good soldiers with
the least interruptions of the ordinary and useful
occupations of civil life. In this all the Union has a
strong and visible interest.
The corollary, from the first position, is, that the
right of the people to keep and bear arms shall not be
infringed.
The prohibition is general. No clause in the
Constitution could by any rule of construction be
conceived to give to congress a power to disarm the
people. Such a flagitious attempt could only be made
under some general pretence by a state legislature. But
if in any blind pursuit of inordinate power, either
should attempt it, this amendment may be appealed to as
a restraint on both.
In most of the countries of Europe, this right does
not seem to be denied, although it is allowed more or
less sparingly, according to circumstances. In England,
a country which boasts so much of its freedom, the right
was secured to protestant subjects only, on the
revolution of 1688; and it is cautiously described to be
that of bearing arms for their defence, ‘suitable to
their conditions, and as allowed by law.’ An arbitrary
code for the preservation of game in that country has
long disgraced them. A very small proportion of the
people being permitted to kill it, though for their own
subsistence; a gun or other instrument, used for that
purpose by an unqualified person, may be seized and
forfeited. Blackstone, in whom we regret that we cannot
always trace the expanded principles of rational liberty,
observes however, on this subject, that the prevention of
popular insurrections and resistence to government by
disarming the people, is oftener meant than avowed, by
the makers of forest and game laws.
This right ought not, however, in any government, to
be abused to the disturbance of the public peace.
An assemblage of persons with arms, for an unlawful
purpose, is an indictable offence, and even the carrying
of arms abroad by a single individual, attended with
circumstances giving just reason to fear that he purposes
to make an unlawful use of them, would be sufficient
cause to require him to give surety of the peace. If he
refused he would be liable to imprisonment.”

WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 125-26

(Da Capo Press 1970) (2d ed. 1829) (footnotes omitted). This

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explanation recognizes that the preamble is a declaration, a

“proposition,” setting forth the desirability of reliance upon a

militia during peacetime. A well-regulated militia is the opposite

of a disorderly, disgraceful militia. Rawle also observes that the

Amendment’s substantive guarantee applies to all Americans –“[t]he

prohibition is general.” He likewise makes plain that it precludes

legislation “to disarm the people.” Rawle, like St. George Tucker,

makes clear that the Second Amendment does not suffer from the

infirmities of the corresponding part of the English Bill of

Rights.

Next, Justice Joseph Story:

“§ 1000. The next amendment is: “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.
§ 1001. The importance of this article will
scarcely be doubted by any persons, who have duly
reflected upon the subject. The militia is the natural
defence of a free country against sudden foreign
invasions, domestic insurrections, and domestic
usurpations of power by rulers. It is against sound
policy for a free people to keep up large military
establishments and standing armies in time of peace, both
from the enormous expenses, with which they are attended,
and the facile means, which they afford to ambitious and
unprincipled rulers, to subvert the government, or
trample upon the rights of the people. The right of the
citizens to keep, and bear arms has justly been
considered, as the palladium of the liberties of a
republic; since it offers a strong moral check against
the usurpation and arbitrary power of rulers; and will
generally, even if these are successful in the first
instance, enable the people to resist, and triumph over
them. And yet, though this truth would seem so clear,
and the importance of a well regulated militia would seem
so undeniable, it cannot be disguised, that among the
American people there is a growing indifference to any

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 system of militia discipline, and a strong disposition,
from a sense of its burthens, to be rid of all
regulations. How it is practicable to keep the people
duly armed without some organization, it is difficult to
see. There is certainly no small danger, that
indifference may lead to disgust, and disgust to
contempt; and thus gradually undermine all the protection
intended by this clause of our national bill of rights.”

JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 708-709

(Carolina Academic Press 1987) (1833) (emphasis added). Justice

Story calls the right of “citizens” to keep and bear arms the

“palladium” of our liberties. He viewed the private ownership of

firearms as reducing the need for the maintenance of large standing

armies by promoting the vitality of the militia, and laments that

militia participation is on the decline, fearing this will result

in fewer Americans being armed.

And finally, Thomas Cooley:

“SECTION IV.—THE RIGHT TO KEEP AND BEAR ARMS
The Constitution.—By the second amendment to the
Constitution it is declared that, ‘a well-regulated
militia being necessary to the security of a free
state, the right of the people to keep and bear arms
shall not be infringed.’
The amendment, like most other provisions in the
Constitutions, has a history. It was adopted with some
modification and enlargement from the English Bill of
Rights of 1688, where it stood as a protest against
arbitrary action of the overturned dynasty in disarming
the people, and as a pledge of the new rulers that this
tyrannical action should cease. The right declared was
meant to be a strong moral check against the usurpation
and arbitrary power of rulers, and as a necessary and
efficient means of regaining rights when temporarily
overturned by usurpation.
The Right is General.—It might be supposed from
the phraseology of this provision that the right to
keep and bear arms was only guaranteed to the militia;
but this would be an interpretation not warranted by

95
 the intent. The militia, as has been elsewhere
explained, consists of those persons who, under the
law, are liable to the performance of military duty,
and are officered and enrolled for service when called
upon. But the law may make provision for the enrolment
of all who are fit to perform military duty, or of a
small number only, or it may wholly omit to make any
provision at all; and if the right were limited to
those enrolled, the purpose of this guaranty might be
defeated altogether by the action or neglect to act of
the government it was meant to hold in check. The
meaning of the provision undoubtedly is, that the
people, from whom the militia must be taken, shall have
the right to keep and bear arms; and they need no
permission or regulation of law for the purpose. But
this enables the government to have a well-regulated
militia; for to bear arms implies something more than
the mere keeping; it implies the learning to handle and
use them in a way that makes those who keep them ready
for their efficient use; in other words, it implies the
right to meet for voluntary discipline in arms,
observing in doing so the laws of public order.
Standing Army.—A further purpose of this amendment
is, to preclude any necessity or reasonable excuse for
keeping up a standing army. A standing army is
condemned by the traditions and sentiments of the
people, as being as dangerous to the liberties of the
people as the general preparation of the people for the
defence of their institutions with arms is preservative
of them.
What Arms may be kept.—The arms intended by the
Constitution are such as are suitable for the general
defence of the community against invasion or
oppression, and the secret carrying of those suited
merely to deadly individual encounters may be
prohibited.”

THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED

STATES OF AMERICA 270-72 (Rothman & Co. 1981) (original ed. 1880)

(footnotes omitted) (emphasis added).

7. Analysis

The history we have recounted largely speaks for itself. We

briefly summarize. The Anti-Federalists desired a bill of rights,

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express provision for increased state power over the militia, and

a meaningful express limitation of the power of the federal

government to maintain a standing army. These issues were somewhat

interrelated. The prospect of federal power to render the militia

useless and to maintain a large standing army combined with the

absence of any specific guarantees of individual liberty frightened

Anti-Federalists. But the Anti-Federalist complaint that resonated

best with the people at large was the lack of a bill of rights.

In mid-1788 the Constitution was ratified unchanged and in the

spring of 1789 the Federalists gained control of both houses of the

First Congress. Hard-core Anti-Federalists persisted in all three

demands, but more moderate Anti-Federalists and the people at large

were primarily focused on securing a bill of rights. Most

Federalists were not really averse to a bill of rights, but, like

James Madison himself, had been forced to oppose any modifications

to the Constitution since it could only be ratified unchanged. The

Federalists wanted to please the Anti-Federalists as much as

possible without fundamentally altering the balance of federal-

state power. James Madison plainly stated this goal when he

submitted his proposed amendments to the House.

Given the political dynamic of the day, the wording of the

Second Amendment is exactly what would have been expected. The

Federalists had no qualms with recognizing the individual right of

all Americans to keep and bear arms. In fact, as we have

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documented, one of the Federalists’ favorite 1787-88 talking points

on the standing army and federal power over the militia issues was

to remind the Anti-Federalists that the American people were armed

and hence could not possibly be placed in danger by a federal

standing army or federal control over the militia. The Second

Amendment’s preamble represents a successful attempt, by the

Federalists, to further pacify moderate Anti-Federalists without

actually conceding any additional ground, i.e. without limiting the

power of the federal government to maintain a standing army or

increasing the power of the states over the militia.

This is not to say that the Second Amendment’s preamble was

not appropriate or is in any way marginal or lacking in true

significance. Quite the contrary. Absent a citizenry generally

keeping and bearing their own private arms, a militia as it was

then thought of could not meaningfully exist. As pointed out by

Thomas Cooley, the right of individual Americans to keep, carry,

and acquaint themselves with firearms does indeed promote a well-

regulated militia by fostering the development of a pool of

firearms-familiar citizens that could be called upon to serve in

the militia. While standing armies are not mentioned in the

preamble, history shows that the reason a well-regulated militia

was declared necessary to the security of a free state was because

such a militia would greatly reduce the need for a standing army.

Thus, the Second Amendment dealt directly with one of the Anti-

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Federalists’ concerns and indirectly addressed the other two.

While the hard-core Anti-Federalists recognized that the Second

Amendment did not assure a well-regulated militia or curtail the

federal government’s power to maintain a large standing army, they

did not control either branch of Congress (or the presidency) and

had to be content with the right of individuals to keep and bear

arms.

Finally, the many newspaper articles and personal letters

cited indicate that, at the time, Americans viewed the Second

Amendment as applying to individuals. This is confirmed by the

First Congress’s rejection of amendments that would have directly

and explicitly addressed the Anti-Federalists’ standing army and

power over the militia concerns.

We have found no historical evidence that the Second Amendment

was intended to convey militia power to the states, limit the

federal government’s power to maintain a standing army, or applies

only to members of a select militia while on active duty.60 All of

the evidence indicates that the Second Amendment, like other parts

of the Bill of Rights, applies to and protects individual

Americans.

We find that the history of the Second Amendment reinforces

the plain meaning of its text, namely that it protects individual

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.

99
Americans in their right to keep and bear arms whether or not they

are a member of a select militia or performing active military

service or training.

E. Second Amendment protects individual rights

We reject the collective rights and sophisticated collective

rights models for interpreting the Second Amendment. We hold,

consistent with Miller, that it protects the right of individuals,

including those not then actually a member of any militia or

engaged in active military service or training, to privately

possess and bear their own firearms, such as the pistol involved

here, that are suitable as personal, individual weapons and are not

of the general kind or type excluded by Miller. However, because

of our holding that section 922(g)(8), as applied to Emerson, does

not infringe his individual rights under the Second Amendment we

will not now further elaborate as to the exact scope of all Second

Amendment rights.

VI. Application to Emerson

The district court held that section 922(g)(8) was

unconstitutionally overbroad because it allows second amendment

rights to be infringed absent any express judicial finding that the

person subject to the order posed a future danger. In other words,

the section 922(g)(8) threshold for deprivation of the fundamental

100
right to keep and bear arms is too low.61

Although, as we have held, the Second Amendment does protect

individual rights, that does not mean that those rights may never

be made subject to any limited, narrowly tailored specific

exceptions or restrictions for particular cases that are reasonable

and not inconsistent with the right of Americans generally to

individually keep and bear their private arms as historically

understood in this country. Indeed, Emerson does not contend, and

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).

101
the district court did not hold, otherwise. As we have previously

noted, it is clear that felons, infants and those of unsound mind

may be prohibited from possessing firearms. See note 21, supra.62

Emerson’s argument that his Second Amendment rights have been

violated is grounded on the propositions that the September 14,

1998 order contains no express finding that he represents a

credible threat to the physical safety of his wife (or child), that

the evidence before the court issuing the order would not sustain

such a finding and that the provisions of the order bringing it

within clause (C)(ii) of section 922(g)(8) were no more than

uncontested boiler-plate. In essence, Emerson, and the district

court, concede that had the order contained an express finding, on

the basis of adequate evidence, that Emerson actually posed a

credible threat to the physical safety of his wife, and had that

been a genuinely contested matter at the hearing, with the parties

and the court aware of section 922(g)(8), then Emerson could,

consistent with the Second Amendment, be precluded from possessing

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).

102
a firearm while he remained subject to the order.63

Though we are concerned with the lack of express findings in

the order, and with the absence of any requirement for same in

clause (C)(ii) of section 922(g)(8), we are ultimately unpersuaded

by Emerson’s argument. Section 922(g)(8)(A) requires an actual

hearing with prior notice and an opportunity to participate, and

section 922(g)(8)(C)(ii) requires that the order “explicitly”

prohibit the use (actual, threatened or attempted) of physical

force that would reasonably be expected to cause bodily injury.

Congress legislated against the background of the almost universal

rule of American law that for a temporary injunction to issue:

“There must be a likelihood that irreparable harm will
occur. Speculative injury is not sufficient; there must
be more than an unfounded fear on the part of the
applicant. Thus, a preliminary injunction will not be
issued simply to prevent the possibility of some remote
future injury. A presently existing actual threat must
be shown. However, the injury need not have been
inflicted when application is made or be certain to
occur; a strong threat of irreparable injury before trial
is an adequate basis.” 9 WRIGHT, MILLER & KANE, FEDERAL
PRACTICE AND PROCEDURE: CIVIL 2D § 2948.1 at 153-56 (footnotes
omitted; emphasis added).64

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

103
 We conclude that Congress in enacting section 922(g)(8)(C)(ii)

proceeded on the assumption that the laws of the several states

were such that court orders, issued after notice and hearing,

should not embrace the prohibitions of paragraph (C)(ii) unless

such either were not contested or evidence credited by the court

reflected a real threat or danger of injury to the protected party

by the party enjoined. We do not imply that Congress intended to

authorize collateral review of the particular state court predicate

order in section 922(g)(8)(C)(ii) prosecutions to determine whether

in that individual case the state court adequately followed state

law in issuing the order. What we do suggest is that Congress did

not have in mind orders issued under a legal system whose rules did

not approximate the above stated general minimum standards for the

issuance of contested injunctive orders after notice and hearing.

In any event, it is clear to us that Texas law meets these

general minimum standards. See, e.g., Texas Indus. Gas v. Phoenix

Metallurgical, 828 S.W.2d 529, 532 (Tex. App.-Hou. [1st Dist.]

1992):

“A trial court may not issue a temporary injunction
except to prevent a threatened injury. . . . The
commission of the act to be enjoined must be more than
just speculative, and the injury that flows from the act
must be more than just conjectural. . . . The trial court

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).

104
 will abuse its discretion if it grants a temporary
injunction when the evidence does not clearly establish
that the applicant is threatened with an actual,
irreparable injury.”

See also State v. Morales, 869 S.W.2d 941, 946 (Tex. 1994) (“An

injunction will not issue unless it is shown that the respondent

will engage in the activity enjoined”); Armendariz v. Mora, 526

S.W.2d 542, 543 (Tex. 1975) (reversing temporary injunction where

no “evidence establishing probable injury”); Dallas General Drivers

v. Wamix, 295 S.W.2d 873, 879 (Tex. 1956); In re Marriage of

Spiegel, 6 S.W.3d 643, 645 (Tex. App.-Amarillo 1999).

We conclude that essentially the same standards are applicable

to orders, such as the September 14, 1998 order here, issued under

Texas Family Code § 6.502, which provides that in a pending divorce

proceeding “after notice and hearing, the court may render an

appropriate order, including the granting of a temporary injunction

for . . . protection of the parties as deemed necessary . . .

including an order directed to one or both parties . . .

prohibiting an act described by Section 6.501(a).” Section

6.501(a), dealing with temporary restraining orders in divorce

proceedings, authorizes orders “prohibiting one or both parties

from: . . . (2) threatening the other, by telephone or in writing,

to take unlawful action against any person, intending by this

action to annoy or alarm the other; . . . (4) intentionally,

knowingly, or recklessly causing bodily injury to the other or to

a child of either party; (5) threatening the other or a child of

105
either party with imminent bodily injury; . . .” The predecessor

statute to section 6.502 has been construed as requiring a showing

of “reasonable necessity” for the temporary injunction, including

a showing of “a probable injury.” See Florence v. Florence, 388

S.W.2d 220, 223-24 (Tex. Civ. App.-Tyler 1965).

We are also somewhat troubled by the unavailability of review

by direct appeal of interlocutory orders under section 6.502. See

Texas Family Code § 6.507. However, appellate court review is

available by mandamus under an “abuse of discretion” standard.

Wallace v. Briggs, 348 S.W.2d 523, 527 (Tex. 1961). There are a

number of reported appellate court decisions granting such relief

from orders under the predecessors to section 6.502. See, e.g.,

Wallace; Little v. Daggett, 858 S.W.2d 368 (Tex. 1993); Dancy v.

Daggett, 815 S.W.2d 548 (Tex. 1991); Post v. Garza, 867 S.W.2d 88

(Tex. App.-Corpus Christi 1993). We also note that it has more

generally been said that a “trial court will abuse its discretion

if it grants a temporary injunction when the evidence does not

clearly establish that the applicant is threatened with an actual,

irreparable injury,” Texas Indus. Gas, supra, 828 S.W.2d at 532

(emphasis added), and that, with reference to ruling on a temporary

injunction application, “[a]n abuse of discretion arises when the

trial court acts without reference to applicable guiding principles

. . .; acts arbitrarily; . . . or misinterprets or misapplies the

law. . . .” In Re Marriage of Spiegel, 6 S.W.3d 643, 645 (Tex.

106
App.-Amarillo 1999) (emphasis added; citations omitted). We also

note in this connection that orders such as that here of September

14, 1998, expire on the final decree of divorce (and are subject to

modification by the trial court prior thereto; if incorporated into

the final divorce decree they are then subject to review on direct

appeal).

In light of the foregoing, we cannot say that section

922(g)(8)(C)(ii)’s lack of a requirement for an explicit, express

credible threat finding by the court issuing the order–of itself or

together with appellate court review being available (prior to

final judgment) only by mandamus–renders that section infirm under

the Second Amendment. The presence of such an explicit finding

would likely furnish some additional indication that the issuing

court properly considered the matter, but such findings can be as

much “boilerplate” or in error as any other part of such an order.

As to Emerson’s contention that the evidence before the court

issuing the September 14, 1998 order was insufficient to show that

he posed a credible threat to the physical safety of his wife or

child, we conclude that under these circumstances Lewis v. United

States, 100 S.Ct. 915 (1980) and our decision in United States v.

Chambers, 922 F.2d 228 (5th Cir. 1991), each discussed in part I

hereof above, necessarily preclude the court in the section

922(g)(8) prosecution from that sort of collateral review of the

validity of the particular section 922(g)(8) predicate order, at

107
least where, as we hold to be the case here, the order is not so

“transparently invalid” as to have “only a frivolous pretense to

validity.” See Chambers at 239.

With respect to temporary injunctions and similar orders to be

issued only after notice and hearing, the Texas rule of law, as we

have noted, is that such an order, at least to the extent contested

and explicitly prohibiting acts such as are covered by section

922(g)(8)(C)(ii), may not properly issue unless the issuing court

concludes, based on adequate evidence at the hearing, that the

party restrained would otherwise pose a realistic threat of

imminent physical injury to the protected party, and this is so

regardless of whether or not Texas law requires the issuing court

to make on the record express or explicit findings to that effect.

Moreover, such orders are subject to being set aside by the issuing

court as well as being subject to some review by an appellate

court. In such a case, we conclude that the nexus between firearm

possession by the party so enjoined and the threat of lawless

violence, is sufficient, though likely barely so, to support the

deprivation, while the order remains in effect, of the enjoined

party’s Second Amendment right to keep and bear arms, and that this

is so even though the party enjoined may not collaterally attack

the particular predicate order in the section 922(g)(8)

prosecution, at least so long as the order, as here, is not so

transparently invalid as to have only a frivolous pretense to

108
validity.65

VII. Conclusion

Error has not been demonstrated in the district court’s

refusal to dismiss the indictment on commerce clause grounds.

For the reasons stated, we reverse the district court’s order

granting the motion to dismiss the indictment under the Fifth

Amendment.

We agree with the district court that the Second Amendment

protects the right of individuals to privately keep and bear their

own firearms that are suitable as individual, personal weapons and

are not of the general kind or type excluded by Miller, regardless

of whether the particular individual is then actually a member of

a militia.66 However, for the reasons stated, we also conclude that

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

109
the predicate order in question here is sufficient, albeit likely

minimally so, to support the deprivation, while it remains in

effect, of the defendant’s Second Amendment rights. Accordingly,

we reverse the district court’s dismissal of the indictment on

Second Amendment grounds.

We remand the cause for further proceedings not inconsistent

herewith.

REVERSED and REMANDED67

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.

110
 Appendix

The material in this appendix comes largely from Young, “The

Origin of the Second Amendment” (2d ed. 1995) (Golden Oaks Books),

hereinafter cited as Young (all emphasis in original unless

otherwise noted).

1. Anti-Federalists want a Bill of Rights.

Letter from Richard Henry Lee to William Shippen, Jr. (October
2, 1787) (reprinted in Young, at 31)(“I have considered the new
Constitution . . . & I find it impossible for me to doubt, that in
its present State, unamended, the adoption of it will put Civil
Liberty and the happiness of the people at the mercy of Rulers who
may possess the great unguarded powers given . . . The necessary
alterations will by no means interfere with the general nature of
the plan, or limit the power of doing good; but they will restrain
from oppression the wicked & Tyrannic . . . .”); Letter from George
Mason to George Washington (October 7, 1787) (reprinted in Young,
at 34-35) (“Objections to the Constitution of Government formed by
the Convention. There is no Declaration of Rights, and the Laws of
the general Government being paramount to the Laws & Constitutions
of the several States, the Declarations of Rights in the separate
States are no Security.”); An Old Whig II, PHILADELPHIA INDEPENDENT
GAZETTEER, October 17, 1787 (excerpts reprinted in Young, at 49-51)
(“[T]he future Congress will be fully authorized to assume all such
powers as they in their wisdom or wickedness, according as the one
or the other may happen to prevail, shall from time to time think
proper to assume. . . . [I]t is not of a farthing consequence
whether they really are of opinion that the law is necessary and
proper, or only pretend to think so; for who can overrule their
pretensions?–No one, unless we had a bill of rights to which we
might appeal . . . In giving such immense, such unlimited powers,
was there no necessity of a bill of rights to secure to the people
their liberties?”); Letter from Elbridge Gerry to the Massachusetts
General Court (October 18, 1787) (excerpt reprinted in Young, at
51) (“My principal objections to the plan, are . . . that the
system is without the security of a bill of rights.”); An Old Whig
III, PHILADELPHIA INDEPENDENT GAZETTEER, October 20, 1787 (excerpt
reprinted in Young, at 51) (“[T]here ought to be a bill of rights
firmly established, which neither treaties nor acts of the
legislature can alter.”); Letter from Louis Guillaume Otto to Comte

111
de Montmorin (October 21, 1787) (excerpt reprinted in Young, at 56)
(“He [Anti-Federalist Richard Henry Lee] disapproves especially
that the government might have been accorded immense powers without
preceding the Constitution with a bill of rights, which has always
been regarded as the palladium of a free people.”); A
Confederationalist, PHILADELPHIA PENNSYLVANIA HERALD, October 27, 1787
(excerpt reprinted in Young, at 66) (“[A] declaration of those
inherent and political rights ought to be made in a BILL OF RIGHTS,
that the people may never lose their liberties by construction.”);
Letter from George Lee Turberville to Arthur Lee (October 28, 1787)
(excerpt reprinted in Young, at 71) (“[T]his points out to me the
absolute necessity of a bill of rights–and that a very full &
explanatory one too–where not only the Liberty of the press, the
trial by jury of the vicinage & all those great points–but even
every the most trivial privilege that Citizens have a right to
possess–shou’d be expressly stipulated and reserved–& the violation
of them most scrupulously and Jealously guarded against–Of what
consequence is the federal guarantee of republican governments to
the individual states, when the power of the Militia’s even is
rested in the president . . . .”); Letter from Arthur Lee to Edward
Rutledge (October 29, 1787) (excerpt reprinted in Young, at 72) (“I
do not like it [the Constitution]. The want of a promised
declaration of rights, when by some exceptions in the Body of it,
things, in which no power is expressly given, implies that every
thing not excepted is given; is a very material defect.); R.S.,
PHILADELPHIA PENNSYLVANIA HERALD, November 10, 1787 (excerpt reprinted
in Young, at 101) (“The most repeated, and certainly the most
substantial, charge against the proposed constitution, is the want
of a bill of rights.”); Brutus III, NEW YORK JOURNAL, November 15,
1787 (excerpt reprinted in Young, at 104) (“[T]he plan [the
Constitution] is radically defective in a fundamental principle,
which ought to be found in every free government; to wit, a
declaration of rights.”); Robert Whitehill, Pennsylvania
Convention, November 28, 1787 (excerpt reprinted in Young, at 117)
(“If indeed the Constitution itself so well defined the powers of
government that no mistake could arise, and we were well assured
that our governors would always act right, then we might be
satisfied without an explicit reservation of those rights with
which the people ought not, and mean not to part. But, sir, we
know that it is the nature of power to seek its own augmentation,
and thus the loss of liberty is the necessary consequence of a
loose or extravagant delegation of authority. National freedom has
been, and will be the sacrifice of ambition and power, and it is
our duty to employ the present opportunity in stipulating such
restrictions as are best calculated to protect us from oppression
and slavery.”); A FEDERAL REPUBLICAN, A REVIEW OF THE CONSTITUTION (November
28, 1787) (excerpt reprinted in Young, at 119) (“Hitherto we have
been considering the blemishes of the Constitution as they statedly

112
exist–other objects are derived from omission. Among these the
grand one, upon which is indeed suspended every other, is the
omission of a bill of rights.”); Letter from Thomas Jefferson to
James Madison (December 20, 1787) (excerpt reprinted in Young, at
177) (“[A] bill of rights is what the people are entitled to
against every government on earth, general or particular, & what no
just government should refuse, or rest on inference.”); Letter from
Thomas B. Waite to George Thatcher, January 8, 1788 (excerpt
reprinted in Young, at 194) (“There is a certain darkness,
duplicity and studied ambiguity of expression running thro’ the
whole Constitution which renders a Bill of Rights peculiarly
necessary.–As it now stands but very few individuals do, or ever
will understand it.–Consequently, Congress will be its own
interpreter . . . .”); Samuel, Boston INDEPENDENT CHRONICLE, January
10, 1788 (excerpt reprinted in Young, at 202) (“The most
complaints, that I have heard made about the proposed Constitution,
are that there is no declaration of rights.”); Hugh Henry
Brackenridge, PITTSBURGH GAZETTE, March 1, 1788 (excerpt reprinted in
Young, at 291) (“The want of a bill of rights is the great evil.”);
Luther Martin, Baltimore MARYLAND JOURNAL, March 21, 1788 (excerpts
reprinted in Young, at 306) (“But the proposed constitution being
intended and empowered to act not only on states, but also
immediately on individuals, it renders a recognition and a
stipulation in favour of the rights both of states and of men, not
only proper, but in my opinion, absolutely necessary.”); Patrick
Henry, Virginia Convention, June 16, 1788 (excerpt reprinted in
Young, at 436) (“[T]he necessity of a bill of rights appears to me
to be greater in this government than ever it was in any government
before.”).

And, there were moderates who sought to make peace between the
Federalists and Anti-Federalists and recognized the necessity of a
Bill of Rights. See A True Friend, Broadside: Richmond, December
6, 1787 (reprinted in Young, at 143) (“Let us then insert in the
first page of this constitution, as a preamble to it, a declaration
of our rights, or an enumeration of our prerogatives, as a
sovereign people; that they may never hereafter be unknown,
forgotten or contradicted by our representatives, our delegates,
our servants in Congress . . . .”).

2. Federalists say bill of rights not needed because federal
government given no power to infringe fundamental rights.

One of the People, PHILADELPHIA PENNSYLVANIA GAZETTE, October 17,
1787 (excerpt reprinted in Young, at 45) (“The freedom of the press
and trials by jury are not infringed on. The Constitution is
silent, and with propriety too, on these and every other subject

113
relative to the internal government of the states. These are
secured by the different state constitutions. I repeat again, that
the Federal Constitution does not interfere with these matters.
Their power is defined and limited by the 8th section of the first
Article of the Constitution, and they have not power to take away
the freedom of the press, nor can they interfere in the smallest
degree with the judiciary of any of the states.”); A Citizen,
CARLISLE GAZETTE, October 24, 1787 (excerpt reprinted in Young, at 57)
(“The consideration of the nature and object of this general
government will also shew you how weak it is to talk of a bill of
rights in it. It is a government of states; not of individuals.
The constitution of each state has a bill of rights for its own
citizens; and the proposed plan guaranties to every state a
republican form of government for ever. But it would be a novelty
indeed to form a bill of rights for states.”); James Wilson,
Pennsylvania Convention, November 28, 1787 (excerpt reprinted in
Young, at 114) (“[A] bill of rights is by no means a necessary
measure. In a government possessed of enumerated powers, such a
measure would be not only unnecessary, but preposterous and
dangerous.”); Brutus, Alexandria VIRGINIA JOURNAL, December 6, 1787
(excerpt reprinted in Young, at 144) (“The powers which the people
delegate to their rulers are completely defined, and if they should
assume more than is there warranted they would soon find that there
is a power in the United States of America paramount to their own,
which would bring upon them the just resentment of an injured
people.”); Cassius XI, Boston MASSACHUSETTS GAZETTE, December 25, 1787
(excerpt reprinted in Young, at 179) (“[O]f what use would be a
bill of rights, in the present case? . . . It can only be to
resort to when it is supposed that Congress have infringed the
unalienble rights of the people: but would it not be much easier to
resort to the federal constitution, to see if therein power is
given to Congress to make the law in question? If such power is
not given, the law is in fact a nullity, and the people will not be
bound thereby. For let it be remembered that such laws, and such
only, as are founded on this constitution, are to be the supreme
laws of the land.”); General Charles Pinckney, South Carolina
Convention, January 18, 1788, (excerpt reprinted in Young, at 217)
(“The general government has no powers but what are expressly
granted to it; it therefore has no power to take away the liberty
of the press. . . . [T]o have mentioned it in our general
Constitution would perhaps furnish an argument, hereafter, that the
general government had a right to exercise powers not expressly
delegated to it. For the same reason, we had no bill of rights
inserted in our Constitution; for, as we might perhaps have omitted
the enumeration of some of our rights, it might hereafter be said
we had delegated to the general government a power to take away
such of our rights as we had not enumerated . . . .”); Aristides
[Alexander Contee Hanson], REMARKS ON THE PROPOSED PLAN OF A FEDERAL

114
GOVERNMENT, ADDRESSED TO THE CITIZENS OF THE UNITED STATES OF AMERICA, AND
PARTICULARLY TO PEOPLE OF MARYLAND, January 31, 1788 (excerpts
THE
reprinted in Young, at 239-42) (“[W]hen the compact [the
Constitution] ascertains and defines the power delegated to the
federal head, then cannot this government, without manifest
usurpation, exert any power not expressly, or by necessary
implication, conferred by the compact. This doctrine is so obvious
and plain, that I am amazed any good man should deplore the
omission of a bill of rights.”); Alexander White, Winchester
VIRGINIA GAZETTE, February 22, 1788 (excerpts reprinted in Young, at
281) (“There are other things [in the Pennsylvania Minority’s
proposed Declaration of Rights] so clearly out of the power of
Congress, that the bare recital of them is sufficient, I mean the
‘rights of conscience, or religious liberty–the rights of bearing
arms for defence, or for killing game–the liberty of fowling,
hunting and fishing–the right of altering the laws of descents and
distribution of the effects of deceased persons and titles of lands
and goods, and the regulation of contracts in the individual
States.’ These things seem to have been inserted among their
objections, merely to induce the ignorant to believe that Congress
would have a power over such objects and to infer from their being
refused a place in the Constitution, their intention to exercise
that power to the oppression of the people. But if they had been
admitted as reservations out of the powers granted to Congress, it
would have opened a large field indeed for legal construction: I
know not an object of legislation which by a parity of reason,
might not be fairly determined within the jurisdiction of
Congress.”) (emphasis added).

3. Federalists argue that bill of rights may imply federal
government has power to infringe those rights not mentioned.

James Wilson, Pennsylvania Convention, November 28, 1787
(excerpt reprinted in Young, at 116) (“In all societies, there are
many powers and rights, which cannot be particularly enumerated.
A bill of rights annexed to a constitution is an enumeration of the
powers reserved. If we attempt an enumeration, every thing that is
not enumerated is presumed to be given. The consequence is, that
an imperfect enumeration would throw all implied power into the
scale of the government; and the rights of the people would be
rendered incomplete.”); Jasper Yeates, Pennsylvania Convention,
November 30, 1787 (excerpt reprinted in Young, at 125-26) (“I agree
with those gentlemen who conceive that a bill of rights, according
to the ideas of the opposition, would be accompanied with
considerable difficulty and danger; for, it might be argued at a
future day by the persons then in power–you undertook to enumerate
the rights which you meant to reserve, the pretension which you now

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make is not comprised in that enumeration, and, consequently, our
jurisdiction is not circumscribed.”); Brutus, Alexandria VIRGINIA
JOURNAL, December 6, 1787 (excerpt reprinted in Young, at 144)
(“[I]t would therefore have been not only absurd but even dangerous
to have inserted a bill of rights; because, if, in the enumeration
of rights and privileges to be reserved, any had been omitted or
forgotten, and the people, at a future period, should assume those
so omitted, the rulers might with propriety dispute their right to
exercise them, as they were not specified in the bill of rights .
. . .”).

4. Federalists argue bill of rights not needed as Americans,
used to freedom, would not allow infringement of rights.

Letter from William Pierce to St. George Tucker (September 28,
1787) (reprinted in Young, at 29 (“I set this down as a truth
founded in nature, that a nation habituated to freedom will never
remain quiet under an invasion of its liberties.”); A CITIZEN OF
PHILADELPHIA [Pelatiah Webster], THE WEAKNESS OF BRUTUS EXPOSED, November
8, 1787 (reprinted in Young, at 85) (“[S]hould they [Congress]
assume tyrannical powers, and make incroachments on liberty without
the consent of the people, they would soon attone for their
temerity, with shame and disgrace, and probably with their
heads.”); The State Soldier, Richmond VIRGINIA INDEPENDENT CHRONICLE,
January 16, 1788 (excerpt reprinted in Young, at 209) (“[T]here is
nothing in this constitution itself that particularly bargains for
a surrender of your liberties, it must be your own faults if you
become enslaved. Men in power may usurp authorities under any
constitution–and those they govern may oppose their tyranny.”);
Marcus, NORFOLK AND PORTSMOUTH JOURNAL, March 12, 1788 (excerpt
reprinted in Young, at 297-98) (“It is in the power of the
Parliament if they dare to exercise it, to abolish the trial by
jury altogether–but woe be to the man who should dare to attempt
it–it would undoubtedly produce an insurrection that would hurl
every tyrant to the ground who attempted to destroy that great and
just favorite of the English nation. We certainly shall be always
sure of this guard at least, upon any such act of folly or insanity
in our Representatives: They soon would be taught the consequence
of sporting with the feelings of a free people.”); Publius
[Alexander Hamilton], The Federalist, No. 8, THE NEW YORK PACKET,
November 20, 1787 (excerpt reprinted in Young, at 105-06) (footnote
omitted) (“The smallness of the army renders the natural strength
of the community an overmatch for it; and the citizens, not
habituated to look up to the military power for [protection], or to
submit to its oppressions, neither love nor fear the soldiery: They
view them with a spirit of jealous acquiescence in a necessary
evil, and stand ready to resist a power which they suppose may be

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exerted to the prejudice of their rights. The army under such
circumstances, may usefully aid the magistrate to suppress a small
faction, or an occasional mob, or insurrection; but it will be
unable to enforce encroachments against the united efforts of the
great body of the people.”).

5. Federalists argue that federal power to maintain a
standing army should not be feared because the American people are
armed and hence could resist an oppressive standing army.

A CITIZEN OF AMERICA [Federalist Noah Webster], AN EXAMINATION INTO
THE LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION (October 10, 1787)
(reprinted in Young, at 40) (“Before a standing army can rule, the
people must be disarmed; as they are in almost every kingdom in
Europe. The supreme power in America cannot enforce unjust laws by
the sword; because the whole body of the people are armed, and
constitute a force superior to any band of regular troops that can
be, on any pretense, raised in the United States.”); Essay on
Federal Sentiments, PHILADELPHIA INDEPENDENT GAZETTEER, October 23, 1787
(excerpt reprinted in Young, at 57) (“If the president and the
whole senate should happen to be the boldest wealthiest, most
artful men in the union, supported by the most powerful connexions,
and unanimous in the design of subduing the nation; and if by the
concurrence of the representatives they obtained money and troops
for the purpose; yet the whole personal influence of Congress, and
their parricide army could never prevail over an hundred thousand
men armed and disciplined, owners of the country, animated not only
with a spirit of liberty, but ardent resentment against base
treacherous tyrants.”); Mr. Sedgwick, Massachusetts Convention,
January 24, 1788 (excerpt reprinted in Young, at 230-31) (“It was,
he said, a chimerical idea to suppose that a country like this
could ever be enslaved. How is an army for that purpose to be
obtained from the freemen of the United States? They certainly,
said he, will know to what object it is to be applied. Is it
possible, he asked, that an army could be raised for the purpose of
enslaving themselves and their brethren? [O]r if raised, whether
they could subdue a nation of freemen, who know how to prize
liberty, and who have arms in their hands?”); Aristides [Alexander
Contee Hanson], REMARKS ON THE PROPOSED PLAN OF A FEDERAL GOVERNMENT,
ADDRESSED TO THE CITIZENS OF THE UNITED STATES OF AMERICA, AND PARTICULARLY TO THE
PEOPLE OF MARYLAND, January 31, 1788 (excerpt reprinted in Young, at
240) (“If indeed it be possible in the nature of things, that
congress shall, at any future period, alarm us by an improper
augmentation of troops, could we not, in that case, depend on the
militia, which is ourselves.”); A Pennsylvanian III [Tench Coxe],
Philadelphia PENNSYLVANIA GAZETTE, February 20, 1788 (excerpt reprinted
in Young, at 275-76) (“The power of the sword, say the minority of

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Pennsylvania is in the hands of Congress. My friends and
countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE
HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The
militia of these free commonwealths, entitled and accustomed to
their arms, when compared to any possible army must be tremendous
and irresistable. Who are these militia? [A]re they not our
selves. Is it feared, then, that we shall turn our arms each man
against his own bosom. Congress have no power to disarm the
militia. Their swords, and every other terrible implement of the
soldier, are the birthright of an American. What clause in the
state or foedral constitution hath given away that important right.
. . . I do not hesitate to affirm, that the unlimited power of the
sword is not in the hands of either the foedral or state
governments, but, where I trust in God it will ever remain, in the
hands of the people.”); Foreign Spectator, REMARKS on the
Amendments to the federal Constitution, proposed by the Conventions
of Massachusetts, New-Hampshire, New-York, Virginia, South and
North-Carolina, with the minorities of Pennsylvania and Maryland,
by a FOREIGN SPECTATOR, Number VI, Philadelphia FEDERAL GAZETTE,
November 7, 1788 (excerpt reprinted in Young, at 556) (“We proceed
to consider the amendments that regard the military power of the
federal government. . . . While the people have property, arms in
their hands, and only a spark of a noble spirit, the most corrupt
congress must be mad to form any project of tyranny.”); The
Republican, Hartford CONNECTICUT COURANT, January 7, 1788 (excerpts
reprinted in Young, at 188-91) (“it is a capital circumstance in
favor of our liberty that the people themselves are the military
power of our country. In countries under arbitrary government, the
people oppressed and dispirited neither possess arms nor know how
to use them. Tyrants never feel secure until they have disarmed
the people. They can rely upon nothing but standing armies of
mercenary troops for the support of their power. But the people of
this country have arms in their hands; they are not destitute of
military knowledge; every citizen is required by law to be a
soldier; we are all marshaled into companies, regiments, and
brigades, for the defense of our country. This is a circumstance
which increases the power and consequence of the people; and
enables them to defend their rights and privileges against every
invader. . . . The spirit of the people would oppose every open and
direct attempt to enslave them.”).

Madison expresses largely the same thought in Federalist No.
46, as follows: “Extravagant as the supposition is, let it,
however, be made. Let a regular army, fully equal to the resources
of the country, be formed; and let it be entirely at the devotion
of the federal government; still it would not be going too far to
say that the State governments with the people on their side would

118
be able to repel the danger. The highest number to which,
according to the best computation, a standing army can be carried
in any country does not exceed one hundredth part of the whole
number of souls; or one twenty-fifth part of the number able to
bear arms. This proportion would not yield, in the United States,
an army of more than twenty-five or thirty thousand men. To these
would be opposed a militia amounting to near half a million
citizens with arms in their hands, officered by men chosen from
among themselves, fighting for their common liberties and united
and conducted by governments possessing their affections and
confidence. It may well be doubted, whether a militia thus
circumstanced could ever be conquered by such a proportion of
regular troops. Those who are best acquainted with the last
successful resistance of this country against the British arms will
be most inclined to deny the possibility of it. Besides the
advantage of being armed, which the Americans possess over the
people of almost every other nation, the existence of subordinate
governments, to which the people are attached and by which the
militia officers are appointed, forms a barrier against the
enterprises of ambition, more insurmountable than any which a
simple government of any form can admit of. Notwithstanding the
military establishments in the several kingdoms of Europe, which
are carried as far as the public resources will bear, the
governments are afraid to trust the people with arms. . . . Let us
not insult the free and gallant citizens of America with the
suspicion, that they would be less able to defend the rights of
which they would be in actual possession, than the debased subjects
of arbitrary power [Europeans] would be to rescue theirs from the
hands of their oppressors.” (The Federalist Papers, Rossiter, New
American Library, at 299-300; emphasis added).

6. Federalists argue that federal militia powers obviated the
need for and minimized the likelihood of there being a large
standing army.

In Federalist No. 29 Hamilton states: “If a well-regulated
militia be the most natural defense of a free country, it ought
certainly to be under the regulation and at the disposal of that
body which is constituted the guardian of national security. If
standing armies are dangerous to liberty, an efficacious power over
the militia in the same body ought, as far as possible, to take
away the inducement and the pretext to such unfriendly
institutions. If the federal government can command the aid of the
militia in those emergencies which call for the military arm in
support of the civil magistrate, it can better dispense with the
employment of a different kind of force. If it cannot avail itself
of the former, it will be obliged to recur to the latter. To

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render an army unnecessary will be a more certain method of
preventing its existence than a thousand prohibitions upon paper.”
(The Federalist Papers, Rossiter, New American Library, at 183).
See also James Madison, Virginia Convention, June 14, 1788 (excerpt
reprinted in Young, at 400, 402, 404): “If insurrections should
arise, or invasions should take place, the people ought
unquestionably to be employed, to suppress and repel them, rather
than a standing army. The best way to do these things was to put
the militia on a good and sure footing, and enable the government
to make use of their services when necessary. . . . [After a
response by George Mason] The most effectual way to guard against
a standing army, is to render it unnecessary. The most effectual
way to render it unnecessary, is to give the general government
full power to call forth the militia, and exert the whole natural
strength of the Union, when necessary. . . . If you limit their
[the federal government’s] power over the militia, you give them a
pretext for substituting a standing army.”

ENDRECORD

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ROBERT M. PARKER, Circuit Judge, specially concurring:

I concur in the opinion except for Section V. I choose not

to join Section V, which concludes that the right to keep and

bear arms under the Second Amendment is an individual right,

because it is dicta and is therefore not binding on us or on any

other court. The determination whether the rights bestowed by

the Second Amendment are collective or individual is entirely

unnecessary to resolve this case and has no bearing on the

judgment we dictate by this opinion. The fact that the 84 pages

of dicta contained in Section V are interesting, scholarly, and

well written does not change the fact that they are dicta and

amount to at best an advisory treatise on this long-running

debate.

As federal judges it is our special charge to avoid

constitutional questions when the outcome of the case does not

turn on how we answer. See Spector Motor Service, Inc. v.

McLaughlin, 323 U.S. 101, 105 (1944)(“If there is one doctrine

more deeply rooted than any other in the process of

constitutional adjudication, it is that we ought not to pass on

questions of constitutionality . . . unless such adjudication is

unavoidable.”); Walton v. Alexander, 20 F.3d 1350, 1356 (5th Cir.

1994)(Garwood, J., concurring specially)(“It is settled that

courts have a strong duty to avoid constitutional issues that

need not be resolved in order to determine the rights of the

121
parties to the case under consideration.”)(internal quotations

omitted). Following this cardinal rule, we will not, for

example, pick and choose among dueling constitutional theories

when under any construction the challenged provision is invalid.

See Hooper v. Bernalillo County Assessor, 472 U.S. 612, 621 n.11

(1985). Nor will we decide a constitutional question when under

any construction the challenged provision must be sustained. See

O’Connor v. Nevada, 27 F.3d 357, 361 (9th Cir. 1994); Bullock v.

Minnesota, 611 F.2d 258, 260 (8th Cir. 1979). Furthermore, the

fact that a trial court passed on a novel question of

constitutional law does not require us to do likewise. Appellate

courts are supposed to review judgments, not opinions. See Texas

v. Hopwood, 518 U.S. 1033, 1033 (1996). Here, whether “the

district court erred in adopting an individual rights or standard

model as the basis for its construction of the Second Amendment,”

Maj. Op. at 23, is not a question that affects the outcome of

this case no matter how it is answered. In holding that §

922(g)(8) is not infirm as to Emerson, and at the same time

finding an individual right to gunownership, the majority today

departs from these sound precepts of judicial restraint.

No doubt the special interests and academics on both sides

of this debate will take great interest in the fact that at long

last some court has determined (albeit in dicta) that the Second

Amendment bestows an individual right. The real issue, however,

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is the fact that whatever the nature or parameters of the Second

Amendment right, be it collective or individual, it is a right

subject to reasonable regulation. The debate, therefore, over

the nature of the right is misplaced. In the final analysis,

whether the right to keep and bear arms is collective or

individual is of no legal consequence. It is, as duly noted by

the majority opinion, a right subject to reasonable regulation.

If determining that Emerson had an individual Second Amendment

right that could have been successfully asserted as a defense

against the charge of violating § 922(g)(8), then the issue would

be cloaked with legal significance. As it stands, it makes no

difference. Section 922(g)(8) is simply another example of a

reasonable restriction on whatever right is contained in the

Second Amendment.

And whatever the scope of the claimed Second Amendment

right, no responsible individual or organization would suggest

that it would protect Emerson’s possession of the other guns

found in his military-style arsenal the day the federal

indictment was handed down. In addition to the Beretta nine

millimeter pistol at issue here, Emerson had a second Beretta

like the first, a semi-automatic M-1 carbine, an SKS assault

rifle with bayonet, and a semi-automatic M-14 assault rifle. Nor

would anyone suggest that Emerson’s claimed right to keep and

bear arms supercedes that of his wife, their daughter, and of

others to be free from bodily harm or threats of harm. Though I

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see no mention of it in the majority’s opinion, the evidence

shows that Emerson pointed the Beretta at his wife and daughter

when the two went to his office to retrieve an insurance payment.

When his wife moved to retrieve her shoes, Emerson cocked the

hammer and made ready to fire. Emerson’s instability and

threatening conduct also manifested itself in comments to his

office staff and the police. Emerson told an employee that he

had an AK-47 and in the same breath that he planned to pay a

visit to his wife’s boyfriend. To a police officer he said that

if any of his wife’s friends were to set foot on his property

they would “be found dead in the parking lot.”

If the majority was only filling the Federal Reporter with

page after page of non-binding dicta there would be no need for

me to write separately. As I have said, nothing in this case

turns on the original meaning of the Second Amendment, so no

court need follow what the majority has said in that regard.

Unfortunately, however, the majority’s exposition pertains to one

of the most hotly-contested issues of the day. By overreaching

in the area of Second Amendment law, the majority stirs this

controversy without necessity when prudence and respect for stare

decisis calls for it to say nothing at all. See CASS R. SUNSTEIN,

ONE CASE AT A TIME: JUDICIAL MINIMALISM AND THE SUPREME COURT 5 (1999)(“[A]

minimalist path usually--not always, but usually--makes a good

deal of sense when the Court is dealing with a constitutional

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issue of high complexity about which many people feel deeply and

on which the nation is divided (on moral or other grounds).”)

(italics in original). Indeed, in the end, the majority today

may have done more harm than good for those who embrace a right

to gunownership.

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