United States v. Parker

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 24 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 03-4119
DALE PARKER,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:03-CR-139-TC)

Submitted on the Briefs:*

Mary C. Corporon, Corporon & Williams, P.C., Salt Lake City, Utah, for the defendant-
appellant.

Paul M. Warner, United States Attorney, and Diana Hagen, Assistant United States
Attorney, Salt Lake City, Utah, for the plaintiff-appellee.

Before KELLY, McWILLIAMS and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
 Defendant Dale Parker was found guilty under the Assimilative Crimes Act

(ACA), 18 U.S.C. § 13, of carrying a loaded firearm in a vehicle or on a public street, in

violation of Utah Code Ann. § 76-10-505.1 He contends his conviction violates the

Second and Tenth Amendments. We affirm as to Parker’s Second Amendment claim, but

dismiss his Tenth Amendment claim for lack of standing.

I.

The facts of this case are undisputed. On October 3, 2002, Parker drove his pickup

truck onto the Dugway Proving Ground in Utah to perform civilian contract work. The

front gate was located inside the Dugway Proving Ground, and warning signs posted at

the front gate stated: “Warning U.S. Army boundary. All persons are subject to all

regulations. Persons and vehicles are subject to search upon entry into and exit from

Dugway Proving Grounds and while within the boundary of this military reservation

based upon probable cause or military necessity.” App. at 8-9. As a result of a random

search, Parker’s pickup was stopped at the gate and searched by Specialist Jessie James

Lynch. Lynch found a loaded .38 caliber revolver under the seat of Parker’s pickup.

Parker was detained at the gate and then transported to the military police department

where he was interviewed. In Parker’s sworn statement, he stated: “I forgot I had my

1
Utah Code Ann. § 76-10-505 states: “(1) Unless otherwise authorized by law, a
person may not carry a loaded firearm: (a) in or on a vehicle; (b) on any public street; or
(c) in a posted prohibited area. (2) A violation of this section is a class B misdemeanor.”

2
revolver in my truck when I drove on the facility. Had I remembered, I would have

declared it at the gate.” Id. at 27.

Prior to trial, Parker filed a motion to dismiss the charge, claiming the ACA, as

applied to him, violated his Second Amendment right to bear arms and that authority to

regulate the right to bear arms is reserved to the states under the Tenth Amendment. The

magistrate judge denied Parker’s motion to dismiss and he was tried and found guilty by

the magistrate. The court ordered Parker to pay a $90 fine and a $10 special assessment

fee. Pursuant to 18 U.S.C. § 3402 and Federal Rule of Criminal Procedure 58(g)(2)(B),

Parker appealed the magistrate’s order of conviction to the district court. Upon request by

the district court, Parker refiled his motion to dismiss, which was again denied.

II.

On appeal, Parker contends his prosecution pursuant to the ACA violates his right

to keep and bear arms under the Second Amendment. He also contends the United States

lacks constitutional authority to charge him in federal court with violating a state gun

control statute because the Tenth Amendment reserves the right to regulate arms to the

states. As these are constitutional challenges to a statute, we apply de novo review. See

United States v. Morris, 247 F.3d 1080, 1085 (10th Cir. 2001).

Assimilative Crimes Act

We begin by briefly reviewing the purpose and text of the ACA. “The purpose of

the ACA is to borrow state law to fill gaps in the federal criminal law that applies on

3
federal enclaves.” United States v. Adams, 140 F.3d 895, 896 (10th Cir. 1998). The

ACA thus provides “a method of punishing a crime committed on government

reservations in the way and to the extent that it would have been punishable if committed

within the surrounding jurisdiction.” Id. (internal quotation omitted). To achieve these

ends, the ACA states:

(a) Whoever within or upon any of the places now existing or
hereafter reserved or acquired as provided in section 7 of this title . . . is
guilty of any act or omission which, although not made punishable by any
enactment of Congress, would be punishable if committed or omitted within
the jurisdiction of the State . . . in which such place is situated, by the laws
thereof in force at the time of such act or omission, shall be guilty of a like
offense and subject to a like punishment.

18 U.S.C. § 13(a). Section 7 of Title 18 defines the special maritime and territorial

jurisdiction of the United States as including:

(3) Any lands reserved or acquired for the use of the United States,
and under the exclusive or concurrent jurisdiction thereof, or any place
purchased or otherwise acquired by the United States by consent of the
legislature of the State in which the same shall be, for the erection of a fort,
magazine, arsenal, dockyard, or other needful building.

18 U.S.C. § 7. As applied here, the ACA enabled the federal government to charge

Parker with a violation of Utah criminal law when that violation was committed on

federal property.

Second Amendment

“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. amd. II.

4
Whether a federal prosecution pursuant to the ACA for violating a state gun control

statute violates an individual’s Second Amendment rights is an issue of first impression.

Our analysis is guided by the Supreme Court’s ruling in United States v. Miller,

307 U.S. 174 (1939). In Miller, the defendants, unrestricted private citizens, were

indicted for violating the National Firearms Act (Act), 26 U.S.C. § 1132(c)-(d) (1934) as

a result of (1) transporting an unregistered double barrel 12-gauge shotgun in interstate

commerce, and (2) not having in their possession a stamped written order permitting

possession of the firearm. The defendants filed a motion to quash the indictment and

alleged the Act was unconstitutional because it violated the Second Amendment. The

district court agreed with the defendants and granted their motion. The Supreme Court

reversed, holding:

In the absence of any evidence tending to show that possession or
use of a “shot gun 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.

307 U.S. at 178. Miller has been interpreted by this court and other courts to hold that the

Second Amendment does not guarantee an individual the right to keep and transport a

firearm where there is no evidence that possession of that firearm was related to the

preservation or efficiency of a well-regulated militia. See Lewis v. United States, 445

U.S. 55, 65 n.8 (1980) (citing Miller for proposition that “the Second Amendment

5
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”);2 see also

Silveira v. Lockyer, 312 F.3d 1052, 1061 (9th Cir. 2003) (referring to Miller’s implicit

rejection of traditional individual rights position); Love v. Pepersack, 47 F.3d 120, 124

(4th Cir. 1995) (“Since [Miller], the lower federal courts have uniformly held that the

Second Amendment preserves a collective, rather than individual, right.”); United States

v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (interpreting Miller to stand for rule that,

absent reasonable relationship to preservation of well-regulated militia, there is no

fundamental right to possess firearm); United States v. Oakes, 564 F.2d 384, 387 (10th

Cir. 1977) (analyzing Miller and concluding that “[t]o apply the amendment so as to

guarantee appellant’s right to keep an unregistered firearm which has not been shown to

have any connection to the militia, merely because he is technically a member of the

Kansas militia, would be unjustifiable in terms of either logic or policy”); but see United

States v. Emerson, 270 F.3d 203, 226 (5th Cir. 2001) (reading Miller as indecisive and, at

best, supporting an individual’s right to bear arms).

Drawing on Miller, we repeatedly have held that to prevail on a Second

Amendment challenge, a party must show that possession of a firearm is in connection

2
In Lewis, the Court held that laws which prohibit a felon from possession a
firearm do not violate the Due Process Clause. Although the Court did not address the
Second Amendment directly, it applied rational-basis scrutiny, noting the laws “are
neither based upon constitutionally suspect criteria, nor do they trench upon any
constitutionally protected liberties.” 445 U.S. at 65 n.8.

6
with participation in a “well-regulated” “state” “militia.” See United States v. Haney, 264

F.3d 1161, 1165 (10th Cir. 2001) (holding “that a federal criminal gun-control law does

not violate the Second Amendment unless it impairs the state’s ability to maintain a well-

regulated militia”); Oakes, 564 F.2d at 387 (stating “purpose of the second amendment

. . . was to preserve the effectiveness and assure the continuation of the state militia”).

Applying this principle, in Haney we set out a four-part test a party must satisfy to

establish a Second Amendment violation: “As a threshold matter, [a party] must show that

(1) he is part of a state militia; (2) the militia, and his participation therein, is ‘well

regulated’ by the state; (3) [guns of the type at issue] are used by that militia; and (4) his

possession of the [the gun at issue] was reasonably connected to his militia service.” 264

F.3d at 1165. See also United States v. Bayles, 310 F.3d 1302, 1307 (10th Cir. 2002)

(applying Haney to uphold federal law restricting a person subject to a domestic violence

protective order from possessing a firearm); United States v. Graham, 305 F.3d 1094,

1106 (10th Cir. 2002) (applying Haney to find law banning sale of explosive devices does

not infringe upon person’s Second Amendment rights). Unless Parker can satisfy these

four criteria, he cannot prevail on his Second Amendment claim. Notably, Parker has

presented no evidence tending to show that he meets any of the Haney criteria.

Although our prior opinion in Haney would guide us to an affirmance of Parker’s

conviction, he urges us to reverse the district court and adopt the reasoning found in

United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). In Emerson, the court concluded

7
that the Second Amendment confers an individual right to bear arms, apart from any

connection to a state-run militia.3 The court held that the Second Amendment “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.” 270 F.3d at 260. The Emerson court reached this conclusion by reading Miller

narrowly and concluding Miller did not hold that the Second Amendment only protects

the right to bear arms in the context of a militia. The court concluded 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.” 270 F.3d at 264.

We conclude Parker’s reliance on Emerson is unavailing for several reasons. First,

we cannot rely on a ruling from another circuit when this court has ruled to the contrary.

Parker’s reliance on Emerson is foreclosed by this court’s rulings in Bayles, Graham, and

3
In addressing the scope of the Second Amendment, the Emerson court agreed
with the district court that the Second Amendment provides an individual right as
opposed to a pure collective right to bear arms. The court ultimately reversed the district
court because it concluded that, even though the defendant had an individual right to bear
arms, that right reasonably could be limited where a restraining order had been entered
against him for threats of domestic violence. Beyond this distinction, however, it is a
mistake to read the decision, as Parker states, as “reversing” the district court on the
Second Amendment interpretation because the courts agreed on Parker’s central point –
that the Second Amendment should be read as conferring individual rights. Therefore,
for the purposes of considering Parker’s claim, we focus upon the Fifth Circuit’s more
comprehensive discussion in lieu of that provided by the district court.

8
Haney, where we held that absent a showing that a person is part of a well-regulated

state-run militia, the Second Amendment does not establish a citizen’s right to possess a

firearm. Second, the Fifth Circuit stands alone in its interpretation of the Second

Amendment as conferring an individual right to bear arms. In contrast, the Fourth, Sixth,

Seventh, and Ninth Circuits have adopted the most restrictive interpretation (also known

as “the collective rights model”) of the Second Amendment. Under “the collective rights

model,” the Second Amendment never applies to individuals but merely recognizes the

state’s right to arm its militia. See Gillespie v. City of Indianapolis, 185 F.3d 693 (7th

Cir. 1999); Hickman v. Block, 81 F.3d 98 (9th Cir. 1996); Love, 47 F.3d 120; United

States v. Warin, 530 F.2d 103 (6th Cir. 1976); see also United States v. Price, 328 F.3d

958, 961 (7th Cir. 2003) (rejecting reasoning adopted in Emerson). Similarly, in addition

to this court, the First, Third, Eighth, and Eleventh Circuits have all adopted a

“sophisticated collective rights model.” Under this interpretation of the Second

Amendment, an individual has a right to bear arms, but only in direct affiliation with a

well-organized state-supported militia. See United States v. Wright, 117 F.3d 1265 (11th

Cir. 1997); United States v. Rybar, 103 F.3d 273 (3d Cir. 1996); United States v. Hale,

978 F.2d 1016 (8th Cir. 1992); Cases v. United States, 131 F.2d 916 (1st Cir. 1942).

Third, putting aside the fact that Miller requires that a party have some connection

to a state-run militia, even the Fifth Circuit’s most narrow interpretation of Miller does

not support Parker’s claim. To the extent Miller only stands for the rule that a sawed-off

9
shotgun is not a military firearm and therefore not covered by the Second Amendment,

Parker has presented no evidence that his revolver would come within the category of

arms used by the military. To the contrary, at trial, Officer Michael Palhegyi, who was

part of the military police unit that took Parker into custody, testified that Parker’s firearm

was “not considered a military grade weapon” and, instead, more commonly was used for

personal defense or target practice. App. at 30. We conclude Parker’s prosecution by the

United States pursuant to the ACA did not violate the Second Amendment.

Tenth Amendment

We do not reach the merits of Parker’s argument that his federal prosecution

violated the Tenth Amendment because we conclude sua sponte that Parker lacks

standing as a private citizen to pursue this claim. See Rector v. City & County of Denver,

348 F.3d 935, 942 (10th Cir. 2003) (“Standing . . . raises jurisdictional questions and we

are required to consider the issue sua sponte to ensure that there is an Article III case or

controversy before us.”).

In Mountain States Legal Foundation v. Costle, 630 F.2d 754, 761 (10th Cir.

1980), we held that private plaintiffs do not have standing to bring Tenth Amendment

claims when their interests are not aligned with the state’s interests.4 In Costle, the EPA

4
There is presently a split among circuits on the question of whether the Tenth
Amendment provides private citizens with standing. Compare Gillespie, 185 F.3d 693
(allowing a private plaintiff to present a Tenth Amendment challenge), with Costle, 630
F.2d at 761. The Supreme Court recently granted certiorari to address this conflict in
Pierce County v. Guillen, 537 U.S. 129 (2003), but then declined to address the issue and

10
Administrator determined that Colorado was not complying with federal environmental

law. The state legislators challenged the decision on various constitutional and statutory

grounds, but the Colorado Attorney General filed a brief in opposition. We concluded

that “[h]ence, the one party with clear standing to raise the constitutional arguments . . .

not only declined to make those arguments but expressly rejected them.” Id. As such, we

determined that the case presented no justiciable case or controversy with regard to the

constitutional arguments and dismissed the Tenth Amendment claim, stating “[o]nly the

State has standing to press claims aimed at protecting its sovereign powers under the

Tenth Amendment.” Id.

In this case, Parker challenges the authority of the federal government to prosecute

him for violating a state gun control law. He argues his prosecution violates the Tenth

Amendment because it interferes with the state’s Second Amendment powers. This

argument is particularly unpersuasive in the present case because the federal prosecution

seeks to enforce state law. Simply put, we would be hard pressed to conclude that Parker

is representing Utah’s interests or that the Tenth Amendment is violated when the federal

government acts to enforce a Utah law which is violated on a federal enclave. In light of

this court’s clear statement in Costle, we conclude that Parker lacks standing to bring his

Tenth Amendment claim. See also Tennessee Elec. Power Co. v. TVA, 306 U.S. 118,

resolved the case on other grounds. Because neither side has argued the issue of standing
here and we find no Supreme Court precedent directly to the contrary, we conclude that
Costle controls our disposition of the issue.

11
144 (1939) (noting where states had not objected to TVA system of supplying power,

private companies, “absent the states or their officers, have no standing in this suit to raise

any question under the [Tenth Amendment]”).

We AFFIRM Parker’s conviction, concluding the Second Amendment does not bar

his prosecution under the ACA. We DISMISS with prejudice Parker’s Tenth Amendment

claim for lack of standing.

12
No. 03-4119, United States v. Dale Parker.
KELLY, Circuit Judge, concurring.

With the exception of the Second Amendment discussion in Part II, I join the

court’s opinion. Concerning the Second Amendment, I would affirm the conviction by

simply noting that the obvious purpose of this prosecution–restricting concealed weapons

on a military base to identified military personnel–is a reasonable restriction and thus

does not contravene the Second Amendment. I write separately because I disagree with

the analysis in the court’s opinion and because neither Supreme Court nor Tenth Circuit

precedent relied upon by the this court adequately addresses the question asked and

answered: “Whether a federal prosecution pursuant to the ACA [Assimilative Crimes

Act] for violating a state gun control statute violates an individual’s Second Amendment

rights.”

Mr. Parker was found guilty of violating Utah Code Ann. § 76-10-505,1 as

assimilated by 18 U.S.C. § 13(a). The State provision generally prohibits carrying a

1
That section provides:

Carrying loaded firearm in vehicle, on street, or in prohibited area.
(1) Unless otherwise authorized by law, a person may not carry a loaded
firearm:
(a) in or on a vehicle;
(b) on any public street; or
(c) in a posted prohibited area.
(2) A violation of this section is a class B misdemeanor.

Utah Code Ann. § 76-10-505.
loaded firearm in or on a vehicle.2 Although the Supreme Court has twice stated that the

Second Amendment does not apply to States because it is solely a limitation on national

power, Presser v. Illinois, 116 U.S. 252, 265 (1886); United States v. Cruikshank, 92 U.S.

542, 553 (1875); 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional

Law–Substance and Procedure § 14.2 at 520 n.4 (3d ed. 1999); see also State v. Vlacil,

645 P.2d 677, 680 (Utah 1982) & id. at 681 n.1 (Oaks, J., concurring), the State provision

in this case is being enforced on a federal enclave by the federal government. See Lewis

v. United States, 523 U.S. 155, 160, 162 (1998) (discussing function and application of

Assimilative Crimes Act).

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court rejected a

Second Amendment challenge to the National Firearms Act. The case involved a

restricted firearm, specifically a double barrel twelve gauge shot gun having a barrel less

than eighteen inches in length. In reversing the district court which found a Second

Amendment violation as a matter of law, the Court held:

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

2
Mr. Parker did not declare a loaded .38 Colt double action six-shot revolver at
the gate of the military installation and it was discovered in a random search. Although
the firearm was at one time in police service, Mr. Parker contended at the trial that it was
neither military grade nor current peace officer grade, but rather solely for personal self-
defense and target practice. Aplt. App. at 30, 34.

2
 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.

Miller, 307 U.S. at 178. In Lewis v. United States, 445 U.S. 55, 65 (1980), the Court held

that the statute prohibiting a felon from possessing a firearm was not violative of due

process, noting that the federal firearm regulatory restrictions “are neither based upon

constitutionally suspect criteria, nor do they trench upon any constitutionally protected

liberties.” Id. at n.8. The Court cited Miller for the proposition that “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.’” Id.

(quoting Miller, 307 U.S. at 178).

Although not required by the cases before them, courts, including the Tenth

Circuit, have concluded based upon the above that the Second Amendment is a collective,

rather than an individual right. See United States v. Graham, 305 F.3d 1094, 1106 (10th

Cir. 2002). Our first case interpreting Miller involved prosecution under 26 U.S.C. §

5861(d) for unlawful possession of an unregistered machine gun. United States v. Oakes,

564 F.2d 384, 385 (10th Cir. 1977). The court, despite the universal admonition to decide

constitutional issues narrowly, first rejected an “absolute right to keep arms,” and then

rejected an argument based upon the defendant’s apparent membership in a class of

persons constituting the Kansas militia. Id. at 387. Even though the defendant might

have technically been a member of the Kansas militia, he had not shown any connection

3
between the restricted firearm and the militia. Id. United States v. Baer, 235 F.3d 561,

564 (10th Cir. 2000), involved a prosecution under 18 U.S.C. § 922(g)(1) & (k) for

unlawful possession of a firearm by a felon (restricted person) and of a firearm with an

obliterated serial number (restricted firearm). The court stated that “the circuits have

consistently upheld the constitutionality of federal weapons regulations . . . absent

evidence that they in any way affect the maintenance of a well regulated militia.” Id.

Regardless of the fact that a machine gun might be useful in a well regulated militia, it is

apparent that a felon would not be.

Beginning with United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), the

analysis in the Tenth Circuit became more structured. Haney involved prosecution under

18 U.S.C. § 922(o) for unlawful possession of a machine gun (restricted firearm). The

court held that “a federal criminal gun-control law does not violate the Second

Amendment unless it impairs the state’s ability to maintain a well-regulated militia.”

Haney, 264 F.3d at 1165. The court then discussed why legally and factually, the

defendant could not prevail. Because the federal gun-control statute had an exemption

for possession under the authority of a State, the State’s ability to maintain a well-

regulated militia could not be impaired as a matter of law. Id. The court, in what was

clearly dicta, then remarked on what factual showing a defendant need make to prove a

Second Amendment violation:

As a threshold matter, he must show that (1) he is part of a state militia; (2)
the militia, and his participation therein, is “well regulated” by the state; (3)

4
 machine guns are used by that militia; and (4) his possession of the machine
gun was reasonably connected to his militia service.

Id.; see also United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988) (discussing

dictum). The court (without any record support) speculated that a “well-regulated” militia

is one actively maintained and trained by the state. Haney, 264 F.3d at 1165-66. Our

subsequent cases have applied this test, though not needed in the context of restricted

persons or devices, to conclude that no Second Amendment violation occurred.

United States v. Graham, 305 F.3d 1094 (10th Cir. 2002), involved a prosecution

under 18 U.S.C. § 842(a)(1) proscribing knowingly engaging in the business of dealing in

explosive materials without a license, which, if one had a wild imagination, could be

viewed as involving a restriction on a weapon. Id. at 1097, 1106. Almost as an

afterthought, the defendant attempted to cobble together an argument that explosive

devices have a common use in military training exercises, and therefore such devices are

part of a right to participate in those exercises and to keep and bear arms. Id. at 1106.

The court correctly noted that even assuming a defense was stated, Second Amendment

rights are subject to reasonable governmental restrictions. Id. The court’s discussion

regarding the Haney test is totally unnecessary to the holding. Likewise in United States

v. Bayles, 310 F.3d 1302, 1307 (10th Cir. 2002), a prosecution under 18 U.S.C.

§ 922(g)(8) for possession of a firearm while subject to a domestic violence protective

order, while the court noted gratuitously that evidence of the four-part Haney test was not

offered, the bottom line was that the statute was a reasonable restriction that did not

5
infringe Second Amendment rights. Regardless of the Haney test, defendant was a

restricted person and could not posses a weapon.

All of these cases involved uniform, federal restrictions on various types of

firearms or uniform, federal restrictions on the persons possessing such firearms.

Whether the Second Amendment right is an individual right or a collective right has not

been decided by the Supreme Court–Miller did not define this aspect of the Second

Amendment right, and we need not reach the issue here. See Printz v. United States, 521

U.S. 898, 938 n.1 (1997) (Thomas, J., concurring). Justice Thomas has acknowledged the

“growing body of scholarly commentary” indicating that the Second Amendment right is

an individual right, although he also notes contrary authority supporting a collective rights

view. Id. at 938 n.2. Two circuits have examined this question exhaustively in light of

this academic debate and reached contrary conclusions. Compare United States v.

Emerson, 270 F.3d 203, 260 (5th Cir. 2001) (individual right), cert. denied, 536 U.S. 907

(2002), with Silveira v. Lockyer, 312 F.3d 1052, 1086 (9th Cir. 2002) (collective right),

cert. denied, 124 S. Ct. 803 (2003). The Fifth Circuit’s approach is deserving of serious

consideration. The court reasoned that the preamble of the Second Amendment (“A well

regulated Militia, being necessary to the security of a free State,”) could not override the

clear substantive guarantee of the Second Amendment (“the right of the people to keep

and bear Arms, shall not be infringed.”). Emerson, 270 F.3d at 233. Viewing the

amendment against the historical background that existed at the time, it concluded that the

6
people at large, from whom any militia would be formed, are guaranteed the right to keep

and bear arms (and be conversant with their use) so as to facilitate the objective of the

preamble. Id. at 234-36. Like this court, the Fifth Circuit recognized reasonable

restrictions on the Second Amendment right are constitutional. This case also can be

decided on that narrow basis–there is no need to dilute prematurely what many consider

to be one of the most important amendments to the United States Constitution.

7