Defendant Timothy Joe Emerson ("Emerson") moves to dismiss the
Indictment against him, claiming that the statute he is prosecuted under,
18 U.S.C. §
922(g)(8), is an unconstitutional exercise of congressional power under
the Commerce
Clause and the Second,
Fifth,
and Tenth
Amendments to the United States Constitution. For the reasons stated below,
the Court GRANTS EmersonÕs Motion to Dismiss.
I.
BACKGROUND
On August 28, 1998, EmersonÕs wife, Sacha, filed a petition for divorce and
application for a temporary restraining order in the 119th District Court
of Tom Green County, Texas. The petition stated no factual basis for relief
other than the necessary recitals required under the Texas Family Code regarding
domicile, service of process, dates of marriage and separation, and the "insupportability"
of the marriage. The application for a temporary restraining orderÑessentially
a form order frequently used in Texas divorce procedureÑsought to enjoin Emerson
from engaging in various financial transactions to maintain the financial
status quo and from making threatening communications or actual attacks upon
his wife during the pendency of the divorce proceedings.
On September 4, 1998, the Honorable John E. Sutton held a hearing on Mrs.
EmersonÕs application for a temporary restraining order. Mrs. Emerson was
represented by an attorney at that hearing, and Mr. Emerson appeared pro
se. Mrs. Emerson testified about her economic situation, her needs in
the way of temporary spousal support and child support, and her desires regarding
temporary conservatorship of their minor child.
During the 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. However, no evidence was adduced concerning any acts of violence or
threatened violence by Mr. Emerson against any member of his family, and the
district court made no findings to that effect. Furthermore, the court did
not admonish Mr. Emerson that if he granted the temporary restraining order,
Mr. Emerson would be subject to federal criminal prosecution merely for possessing
a firearm while being subject to the order.
II.
ANALYSIS
As stated above, Emerson was indicted for possession of a firearm while being
under a restraining order, in violation of 18
U.S.C. § 922(g)(8) ("the Act"). This statute states that:
(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 . .
. .
18 U.S.C. §
922(g)(8).
Emerson argues that 18
U.S.C. § 922(g)(8) is an unconstitutional exercise of congressional
power under the Commerce
Clause and the Second,
Fifth,
and Tenth
Amendments to the United States Constitution. The Court will address these
arguments seriatim.
A.
Commerce
Clause
Emerson first argues that 18
U.S.C. § 922(g)(8) is an unconstitutional exercise of congressional
power under the Commerce
Clause of the United States Constitution. U.S. CONST. art. I, § 8,
cl. 3. Pursuant to the Supreme CourtÕs holding in United
States v. Lopez,
514 U.S. 549 (1995), Emerson argues that the Act is unconstitutional because
it does not regulate commercial activity.
However, the Fifth Circuit Court of Appeals has examined the validity of
18 U.S.C. §
922(g)(8) under a Commerce
Clause challenge and has held that the Act is constitutional. United
States v. Pierson,
139 F.3d 501 (5th Cir. 1998). Accordingly, Emerson cannot sustain a Motion
to Dismiss under a Commerce
Clause challenge.
B.
Second
Amendment
Emerson claims that 18
U.S.C. § 922(g)(8) violates his rights under the Second
Amendment to the United States Constitution. The Second
Amendment states 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 beinfringed.
U.S.
CONST. amend. II.
Only if the Second
Amendment guarantees Emerson a personal right to bear arms can he claim
a constitutional violation. Whether the Second
Amendment recognizes an individual right to keep and bear arms is an issue
of first impression within the Fifth Circuit. Emerson claims that he has a
personal right to bear arms which the Act infringes, while at oral argument
on the Motion to Dismiss, the Government claimed it is "well settled"
that the Second
Amendment creates a right held by the States and does not protect an individual
right to bear arms.
1.
Second
Amendment Schools of Thought
Two main schools of thought have developed on the issue of whether the Second
Amendment recognizes individual or collective rights. These schools of
thought are referred to as the "statesÕ rights," or "collective
rights," school and the "individual rights" school. The former
group cites the opening phrase of the amendment, along with subsequent case
law, as authority for the idea that the right only allows states to establish
and maintain militias, and in no way creates or protects an individual right
to own arms. David E. Johnson, Note, Taking a Second Look at the Second
Amendment and Modern Gun Control Laws, 86 KY. L.J. 197, 198 (1997-98)
(citing Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and
Dereliction of Dialogic Responsibility, 75 B.U. L. REV. 57 (1995)). Due
to changes in the political climate over the last two centuries and the rise
of National Guard organizations among the states, statesÕ rights theorists
argue that the Second
Amendment is an anachronism, and that there is no longer a need to protect
any right to private gun ownership.
The individual rights theorists, supporting what has become known in the
academic literature as the "Standard Model," argue that the amendment
protects an individual right inherent in the concept of ordered liberty, and
resist any attempt to circumscribe such a right. Id. (citing Glenn
Harlan Reynolds, A
Critical Guide to the Second Amendment, 62 TENN. L. REV. 461, 464-88
(1995); Robert Dowlut, The
Right to Keep and Bear Arms: A Right to Self-Defense Against Criminals and
Despots, 8 STAN. L. & POL'Y REV. 25 (1997)).
2.
Textual Analysis
A textual analysis of the Second
Amendment supports an individual right to bear arms. A distinguishing
characteristic of the Second
Amendment is the inclusion of an opening clause or preamble, which sets
out its purpose. No similar clause is found in any other amendment. Stanford
Levinson, The Embarrassing
Second Amendment, 99 YALE L.J. 637, 644 (1989). While statesÕ rights
theorists seize upon this first clause to the exclusion of the second, both
clauses should be read in pari materia, to give effect and harmonize
both clauses, rather than construe them as being mutually exclusive.
The amendment reads "[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. Within the amendment are two distinct clauses, the first
subordinate and the second independent. If the amendment consisted solely
of its independent clause, "the right of the people to keep and bear
Arms, shall not be infringed," then there would be no question whether
the right is individual in nature. David E. Johnson, Note, Taking a Second
Look at the Second Amendment and Modern Gun Control Laws, 86 KY. L.J.
197, 200 (1997-98).
Collective rights theorists argue that addition of the subordinate clause
qualifies the rest of the amendment by placing a limitation on the peopleÕs
right to bear arms. Id. However, if the amendment truly meant what
collective rights advocates propose, then the text would read "[a] well
regulated Militia, being necessary to the security of a free State, the right
of the States to keep and bear Arms, shall not be infringed."
However, that is not what the framers of the amendment drafted. The plain
language of the amendment, without attenuate inferences therefrom, shows that
the function of the subordinate clause was not to qualify the right, but instead
to show why it must be protected. Id. The right exists independent
of the existence of the militia. If this right were not protected, the existence
of the militia, and consequently the security of the state, would be jeopardized.
Id. at 201.
The Supreme Court recently interpreted the text of the Second
Amendment and noted that the phrase "the people" in the Second
Amendment has the same meaning in both the Preamble to the Constitution
and in the First,
Fourth,
Fifth,
and Ninth
Amendments. United
States v. Verdugo-Urquidez,
494 U.S. 259, 265 (1990). The Court held that the phrase "the people"
"seems to have been a term of art employed in select parts of the Constitution."
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, . . . refers to a class of persons who are part of a national
community or who have otherwise developed sufficient connection with this
country to be considered part of that community. See United
States ex rel. Turner v. Williams,
194 U.S. 279, 292 (1904).
The Court has also held that given their contemporaneous proposal and passage,
the amendments of the Bill of Rights should be read in pari materia,
and amendments which contain similar language should be construed similarly.
Patton
v. United States,
281 U.S. 276, 298 (1930), cited by David Harmer, Securing a
Free State: Why the Second Amendment Matters, 1998 BYU L. REV. 55, 61
(1998). The CourtÕs construction of "the people" as used in the
Second
Amendment supports a holding that the right to keep and bear arms is a
personal right retained by the people, as opposed to a collective right held
by the States. Thus, a textual analysis of the Second
Amendment clearly declares a substantive right to bear arms recognized
in the people of the United States.
3.
Historical Analysis
"[T]here is a long tradition of widespread lawful gun ownership by private
individuals in this country." Staples
v. United States,
511 U.S. 600, 610 (1994). A historical examination of the right to bear
arms, from English antecedents to the drafting of the Second
Amendment, bears proof that the right to bear arms has consistently been,
and should still be, construed as an individual right.
a.
English History
A review of English history explains the foundersÕ intent in drafting the
Second
Amendment. As long ago as 690 A.D., Englishmen were required to possess
arms and to serve in the military. David T. Hardy, Armed
Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment,
9 HARV. J.L. & PUB. POLÕY 559, 562 (1986) (citing 1 JOHN J. BAGLEY &
PETER B. ROWLEY, A DOCUMENTARY HISTORY OF ENGLAND 1066-1540, at 152 (1965)).
This obligation continued for centuries, requiring nobility, and later commoners,
to keep arms and participate in the militia. Id. at 563-65. The obligation
to keep arms was not simply to provide military service in the kingÕs army;
English citizens were also required to provide local police services, such
as pursuing criminals and guarding their villages. CLAYTON E. CRAMER, FOR
THE DEFENSE OF THEMSELVES AND THE STATE: THE ORIGINAL INTENT AND JUDICIAL
INTERPRETATION OF THE RIGHT TO KEEP AND BEAR ARMS 24-25 (1994); JOYCE
LEE MALCOLM, TO KEEP
AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 2 (1994).
By the middle of the seventeenth century, however, the sovereign jeopardized
the individual right to bear arms. Charles II, and later James II, began to
disarm many of their Protestant subjects. Hardy, supra, at 574-79.
James II was an unpopular king whose policies stirred great resentment among
both the political and religious communities of England. David E. Murley,
Private Enforcement of the Social Contract: Deshaney and the Second Amendment
Right to Own Firearms, 36 DUQ. L. REV. 15, 19 (1997). Eventually, James
II fled England during what was later termed the Glorious Revolution. Hardy,
supra, at 579. In the aftermath of the Glorious Revolution, Parliament
passed the English Bill of Rights in 1689, codifying the individual right
to bear arms. Id. at 580. The Bill of Rights provided that "the
subjects which are Protestant may have arms for their defense suitable to
their conditions and as allowed by law." Id. at 581.
b.
The Colonial Right To Bear Arms
The American colonists exercised their right to bear arms under the English
Bill of Rights. Indeed, the English governmentÕs success in luring Englishmen
to America was due in part to pledges that the immigrants and their children
would continue to possess "all the rights of natural subjects, as if
born and abiding in England." MALCOLM, supra, at 138. As in England,
the colonial militia played primarily a defensive role, with armies of volunteers
organized whenever a campaign was necessary. Id. at 139. Statutes in
effect bore evidence of an individual right to bear arms during colonial times.
For example, a 1640 Virginia statute required "all masters of families"
to furnish themselves and "all those of their families which shall be
capable of arms . . . with arms both offensive and defensive." Id.
(citing THE OLD DOMINION IN THE SEVENTEENTH CENTURY: A DOCUMENTARY HISTORY
OF VIRGINIA, 1606-1689, at 172 (Warren M. Billings ed., 1975). A 1631 Virginia
law required "all men that are fittinge to beare armes, shall bring their
pieces to church . . . for drill and target practice." Hardy, supra,
at 588 (quoting 1 WILLIAM W. HENING, THE STATUTES AT LARGE: BEING A COLLECTION
OF ALL THE LAWS OF VIRGINIA FROM THE FIRST SESSION OF THE LEGISLATURE IN THE
YEAR 1619, at 173-74 (reprint. 1969) (1823). These laws served the twofold
purpose of providing individual self-defense while giving England a reserve
force available in time of war. Murley, supra, at 20.
Following the French and Indian War, England increased taxes and stationed
a large army in the colonies. On April 3, 1769, the Boston Evening Post
announced that colonial authorities urged the citizenry to take up arms.
In reply to the claim that this request was unlawful, the newspaper observed
that:
It is certainly beyond human art and sophistry, to prove the British
subjects, to whom the privilege of possessing arms as expressly
recognized by the Bill of Rights, and who live in a province where the
law requires them to be equipped with arms, are guilty of an illegal
act, in calling upon one another to be provided with them, as the
law directs.
Hardy, supra, at 589-90 (quoting OLIVER M. DICKERSON, BOSTON UNDER
MILITARY RULE 61 (1936)). Shortly after the "Boston Tea Party,"
British soldiers, led by General Gage, attempted to disarm the colonists.
MALCOLM, supra, at 144. The British Parliament banned all exports of
muskets and ammunition to the colonies and began seizing the colonistsÕ weapons
and ammunition. Id. The British efforts to disarm the colonists hardened
American resistance. At that point, the colonists began to form the "minutemen,"
a nationwide select militia organization. Hardy, supra at 890. In February
1775, a colonial militia prevented the British from seizing weapons at an
armory in Salem, Massachusetts. Two months later, the colonists defeated British
troops at Concord. Id. at 591. Distinguished colonial leaders, such
as George Washington and Samuel Adams, strongly influenced the organization
of these local militias. STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE
EVOLUTION OF A CONSTITUTIONAL RIGHT 60-61 (1984).
The "militia" which won the Revolutionary War consisted of all
who were treated as full citizens of the community. George Mason stated, "Who
are the militia? They consist now of the whole people." Sanford Levinson,
The Embarrassing
Second Amendment, 99 Yale L.J. 637, 647 (1989) (citing statement of
George Mason (June 14, 1788), in 3 JONATHAN ELLIOTT, DEBATES IN THE
GENERAL STATE CONVENTIONS 425 (3d ed. 1937)). Similarly, the Federal Farmer
referred to a "militia, when properly formed, [as] in fact the people
themselves." Id. (quoting RICHARD HENRY LEE, OBSERVATIONS LEADING
TO A FAIR EXAMINATION OF THE SYSTEM OF GOVERNMENT PROPOSED BY THE LATE CONVENTION:
LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 123 (Walter H. Bennett ed.,
1978)).
The individual right to bear arms, a right recognized in both England and
the colonies, was a crucial factor in the colonistsÕ victory over the British
army in the Revolutionary War. Without that individual right, the colonists
never could have won the Revolutionary War. After declaring independence from
England and establishing a new government through the Constitution, the American
founders sought to codify the individual right to bear arms, as did their
forebears one hundred years earlier in the English Bill of Rights.
c.
The Ratification Debates
A foundation of American political thought during the Revolutionary period
was the well justified concern about political corruption and governmental
tyranny. Even the federalists, fending off their opponents who accused them
of creating an oppressive regime, were careful to acknowledge the risks of
tyranny. Against that backdrop, the framers saw the personal right to bear
arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts
expressed this sentiment by declaring that it is "a chimerical idea to
suppose that a country like this could ever be enslaved . . . Is it possible
. . . that an army could be raised for the purpose of enslaving themselves
or their brethren? or, if raised whether they could subdue a nation of freemen,
who know how to prize liberty and who have arms in their hands?" MALCOLM,
supra at 157 (citing 2 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL
STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 97 (2d ed. 1863)).
Noah Webster similarly argued:
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 pretence, raised in the United States.
Id. (citing NOAH WEBSTER, AN EXAMINATION INTO THE LEADING PRINCIPLES
OF THE FEDERAL CONSTITUTION (1787), reprinted in PAMPHLETS ON THE CONSTITUTION
OF THE UNITED STATES, PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE, 1787-1788,
at 56 (Paul L. Ford, ed. 1971) (1888)). Richard Lee HenryÕs view that a well
regulated militia was the entire armed populace rather than a select body
of men was reiterated by proponents to a bill of rights. As "M.T. Cicero"
wrote to "The Citizens of America":
Whenever, therefore, the profession of arms becomes a distinct order
in the state . . . the end of the social compact is defeated . . . .
No free government was ever founded, or ever preserved its liberty, without
uniting the characters of the citizen and the soldier in those destined
for the defence of the state . . . . Such are a well regulated militia,
composed of the freeholders, citizen and husbandman, who take up arms
to preserve their property, as individuals, and their rights as freemen.
HALBROOK, supra at 72 (citing STATE GAZETTE (Charleston), Sept. 8,
1788).
George Mason argued the importance of the militia and right to bear arms by
reminding his compatriots of EnglandÕs efforts "to disarm the people;
that it was the best and most effectual way to enslave them . . . by totally
disusing and neglecting the militia." Id. at 74 (citing 3 JONATHAN
ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE
FEDERAL CONSTITUTION 380 (2d ed. 1863)). He also clarified that under prevailing
practice the militia included all people, rich and poor. "Who are the
militia? They consist now of the whole people, except a few public officers."
Id. (citing 3 ELLIOT at 425-26). Because all were members of the militia,
all enjoyed the right to individually bear arms to serve therein.
The framers thought the personal right to bear arms to be a paramount right
by which other rights could be protected. Therefore, writing after the ratification
of the Constitution, but before the election of the first Congress, James
Monroe included "the right to keep and bear arms" in a list of basic
"human rights" which he proposed to be added to the Constitution.
HALBROOK, supra at 223 n. 145 (citing James Monroe Papers, New York
Public Library (Miscellaneous Papers of James Monroe)).
The framers also saw an armed populace as the safeguard of religious liberty.
Zachariah Johnson told the Virginia convention their liberties would be safe
because
the people are not to be disarmed of their weapons. They are left in
full possession of them. The government is administered by the representatives
of the people, voluntarily and freely chosen. Under these circumstances
should anyone attempt to establish their own system [of religion], in
prejudice of the rest, they would be universally detested and opposed,
and easily frustrated. This is the principle which secures religious liberty
most firmly. The government will depend on the assistance of the people
in the day of distress.
MALCOLM, supra at 157 (citing 3 ELLIOT 646)).
Patrick Henry, also in the Virginia convention, eloquently argued for the
dual rights to arms and resistance to oppression: "Guard with jealous
attention the public liberty. Suspect everyone who approaches that jewel.
Unfortunately, nothing will preserve it but downright force. Whenever you
give up that force, you are ruined." HALBROOK, supra at 73 (citing
3 ELLIOT at 45). Thus, the federalists agreed with Blackstone that an armed
populace was the ultimate check on tyranny. MALCOLM, supra at 157.
While both Monroe and Adams supported ratification of the Constitution, its
most influential framer was James Madison. In The
Federalist No. 46, he confidently contrasted the federal government of
the United States to the European despotisms which he contemptuously described
as "afraid to trust the people with arms." He assured his fellow
citizens that they need never fear their government because of "the advantage
of being armed." Don B. Kates, Jr., Handgun
Prohibition and The Original Meaning of The Second Amendment, 82 MICH.
L. REV. 204, 228 (1983) (quoting THE
FEDERALIST NO. 46, at 371 (James Madison) (John. C. Hamilton ed., 1864)).
Many years later, Madison restated the sentiments of The
Federalist No. 46 by declaring: "[A] government resting on a minority
is an aristocracy, not a Republic, and could not be safe with a numerical
and physical force against it, without a standing army, an enslaved press,
and a disarmed populace." Id. (quoting RALPH L. KETCHAM, JAMES
MADISON: A BIOGRAPHY 64, 640 (1971)).
Although on the other side of the ratification debate, Anti-Federalist Patrick
Henry was unequivocal on the individual right to bear arms. During the Virginia
ratification convention, he objected to the ConstitutionÕs inclusion of clauses
specifically authorizing a standing army and giving the federal government
control of the militia. He also objected to the omission of a clause forbidding
disarmament of the individual citizen: "The great object is that every
man be armed . . . . [e]veryone who is able may have a gun." Id. at
229 (citing 3 J. ELLIOTT, supra, at 45).
By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut
ratified the Constitution without insisting upon amendments. Several specific
amendments were proposed, but were not adopted at the time the Constitution
was ratified. The Pennsylvania convention, for example, debated fifteen amendments,
one of which concerned the right of the people to be armed, another with the
militia. The amendment on the right to bear arms read:
That the people have a right to bear arms for the defence 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 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.
MALCOLM, supra at 158 (citing PENNSYLVANIA AND THE FEDERAL CONSTITUTION,
1787-1788, at 422).
The Massachusetts convention also ratified the Constitution with an attached
list of proposed amendments. Id. In the end, the ratification convention
was so evenly divided between those for and against the Constitution that
the federalists agreed to amendments to assure ratification. Id. Samuel
Adams proposed that the Constitution
[B]e 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 defence
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 their grievances: or to subject the people
to unreasonable searches and seizures.
Id. (citing DEBATES AND PROCEEDINGS IN THE CONVENTION OF THE COMMONWEALTH
OF MASSACHUSETTS, HELD IN THE YEAR 1788, at 198-99 (Bradford Pierce and Charles
Hale, ed., 1856)).
Other states which had not yet ratified the Constitution followed the Maryland
conventionÕs practice of ratifying the Constitution while submitting proposed
amendments. The New Hampshire convention, for example, adopted the nine Massachusetts
amendments and added three others: one to limit standing armies, a second
to ensure an individual right to bear arms, and a third to protect freedom
of conscience. Id. The proposed amendment on freedom to bear arms read:
"Congress shall never disarm any Citizen unless such as are or have been
in Actual Rebellion." Id. at 158-59 (citing 2 DOCUMENTARY HISTORY
OF THE CONSTITUTION OF THE UNITED STATES, 1787-1870, at 143 (1894)).
d.
Drafting the Second
Amendment
When the first Congress convened on March 4, 1789, James Madison, who had
previously advocated passage of the Constitution without amendments, now pressed
his colleagues to act on a bill of rights. MALCOLM, supra at 159. When
his initial efforts failed to produce any response, he drafted his own version
of a bill of rights and presented them to members of Congress on June 8 of
that year. Id. He explained to Jefferson that he deliberately drafted
the amendments to be unexceptional and therefore likely to win approval. Id.
(citing RONALD RUTLAND, THE BIRTH OF THE BILL OF RIGHTS 209 (1991)). His
version of what would later be the second amendment read:
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.
MALCOLM, supra at 159.
That Madison envisioned a personal right to bear arms, rather than merely
a right for the states to organize militias, is evident from his desired placement
of the right in the Constitution. MadisonÕs original plan was to designate
the amendments as inserts between specific sections of the existing Constitution,
rather than as separate amendments added to the end of the document. Hardy,
supra at 609 (citing 1 ANNALS OF CONGRESS 707-08 (Joseph Gales ed.,
1789)). Madison did not designate the right to keep and bear arms as a limitation
of the militia clause of Section 8 of Article I. Rather, he placed it as part
of a group of provisions (with freedom of speech and the press) to be inserted
in "Article 1st, Section 9, between Clauses 3 and 4." Id. (quoting
5 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA
186-87 (1905)). Such a designation would have placed this right immediately
following the few individual rights protected in the original Constitution,
dealing with the suspension of bills of attainder, habeas corpus, and ex post
facto laws. Thus Madison aligned the right to bear arms along with the other
individual rights of freedom of religion and the press, rather than with congressional
power to regulate the militia. Id. This suggested placement of the
Second
Amendment reflected recognition of an individual right, rather than a
right dependent upon the existence of the militia.
At that point, the Senate took up the Bill of Rights. Unfortunately, Senate
debate on the issue was held in secret, and therefore no record exists of
that bodyÕs deliberations. CRAMER, supra at 58 (citing HELEN VEIT ET
AL., CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL
CONGRESS xix (1991)). The Senate form of the second amendment now described
the militia not as "the best security" of a free state, but as "necessary
to the security" of a free state, an even stronger endorsement than MadisonÕs
original description. MALCOLM, supra at 161. The Senators also omitted
the phrase describing the militia as "composed of the body of the people."
Elbridge GerryÕs fear that future Congresses might expand on the religious
exemption clause evidently convinced the Senate to eliminate that clause as
well. Id. Even more important, however, was the SenateÕs refusal of
a motion to add "for the common defense" after the phrase "to
keep and bear arms." Id. (citing HALBROOK, supra at 81,
n. 167). Thus the American Bill of Rights, like the English Bill of Rights,
recognized the individualÕs right to have weapons for his own defense, rather
than for collective defense. Id. In this form, Congress approved the
Second
Amendment and sent the Bill of Rights to the state legislatures for ratification.
Id.
In retrospect, the framers designed the Second
Amendment to guarantee an individualÕs right to arms for self-defense.
Such an individual right was the legacy of the English Bill of Rights. American
colonial practice, the constitutional ratification debates, and state proposals
over the amendment all bear this out. Id. at 162. The American Second
Amendment also expanded upon the English Bill of RightsÕ protection; while
English law allowed weapons "suitable to a personÕs condition" "as
allowed by law," the American right forbade any "infringement"
upon the right of the people to keep and bear arms. Id.
In his influential Commentaries on the Constitution, Joseph Story
emphasized the importance of the Second
Amendment. He described the militia as the "natural defence of a
free country" not only "against sudden foreign invasions" and
"domestic insurrections," but also against "domestic usurpations
of power by rulers." He went on to state that "[t]he 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." 3 J. Story, Commentaries § 1890, p. 746 (1833).
4.
Structural Analysis
The structure of the Second
Amendment within the Bill of Rights proves that the right to bear arms
is an individual right, rather than a collective one. The collective rightsÕ
idea that the Second
Amendment can only be viewed in terms of state or federal power "ignores
the implication that might be drawn from the Second,
Ninth,
and Tenth
Amendments: the citizenry itself can be viewed as an important third component
of republican governance as far as it stands ready to defend republican liberty
against the depredations of the other two structures, however futile that
might appear as a practical matter." Sanford Levinson, The
Embarrassing Second Amendment, 99 YALE L.J. 637, 651 (1989).
Furthermore, the very inclusion of the right to keep and bear arms in the
Bill of Rights shows that the framers of the Constitution considered it an
individual right. "After all, the Bill of Rights is not a bill of statesÕ
rights, but the bill of rights retained by the people." David Harmer,
Securing a Free State: Why The Second Amendment Matters, 1998 BYU L.
REV. 55, 60 (1998). Of the first ten amendments to the Constitution, only
the Tenth
concerns itself with the rights of the states, and refers to such rights in
addition to, not instead of, individual rights. Id. Thus the structure
of the Second
Amendment, viewed in the context of the entire Bill of Rights, evinces
an intent to recognize an individual right retained by the people.
5.
Judicial Interpretations
The Court notes that several other federal courts have held that the Second
Amendment does not establish an individual right to keep and bear arms,
but rather a "collective" right, or a right held by the states.
See, e.g., Hickman
v. Block,
81 F.3d 98, 100-01 (9th Cir. 1996) (holding that plaintiff lacked standing
to sue for denial of concealed weapons permit, because Second
Amendment does not protect possession of weapon by private citizen; right
to bear arms is held by the states); Love
v. Pepersack,
47 F.3d 120, 124 (4th Cir. 1995) (holding that Second
Amendment does not confer absolute individual right); United
States v. Warin,
530 F.2d 103, 106-07 (6th Cir. 1976) (holding that Second
Amendment guarantees a collective rather than an individual right; fact
that an individual citizen, like all others, may enroll in state militia does
not confer right to possess submachine gun); Cases
v. United States,
131 F.2d 916, 920-23 (1st Cir. 1942) (holding that federal government
may limit the keeping and bearing of arms by a single individual); Hamilton
v. Accu-Tek,
935 F. Supp. 1307, 1318 (E.D.N.Y. 1996) (holding that Second
Amendment right to bear arms establishes a collective rather than an individual
or private right).
However, the only modern Second
Amendment case from the Supreme Court is United
States v. Miller,
307 U.S. 174 (1939). Jack Miller was charged with moving a sawed-off shotgun
in interstate commerce in violation of the National Firearms Act of 1934.
Among other things, Miller had not registered the firearm, as required by
the Act. The court below dismissed the charge, accepting MillerÕs argument
that the Act violated the Second
Amendment.
The Supreme Court reversed unanimously, with Justice McReynolds writing the
opinion. Interestingly enough, he emphasized that there was no evidence showing
that a sawed-off shotgun "at this time has some reasonable relationship
to the preservation or efficiency of a well regulated militia." Id.
at 178. And "[c]ertainly 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." Id. at 178 (citation omitted).
Thus, Miller might have had a tenable argument had he been able to show that
he was keeping or bearing a weapon that clearly had a potential military use.
Justice McReynolds went on to describe the purpose of the Second
Amendment as "assur[ing] the continuation and render[ing] possible
the effectiveness of [the Militia]." Id. at 178. He contrasted
the Militia with troops of a standing army, which the Constitution indeed
forbade the states to keep without the explicit consent of Congress. "The
sentiment of the time strongly disfavored standing armies; the common view
was that adequate defense of country and laws could be secured through the
MilitiaÑcivilians primarily, soldiers on occasion." Id. at 179.
McReynolds noted further that "the debates in the Convention, the history
and legislation of Colonies and States, and the writings of approved commentators
[all] [s]how plainly enough that the Militia comprised all males physically
capable of acting in concert for the common defense." Id.
It is difficult to interpret Miller
as rendering the Second
Amendment meaningless as a control on Congress. Ironically, one can read
Miller
as supporting some of the most extreme anti-gun control arguments; for
example, that the individual citizen has a right to keep and bear bazookas,
rocket launchers, and other armaments that are clearly used for modern warfare,
including, of course, assault weapons. Under Miller,
arguments about the constitutional legitimacy of a prohibition by Congress
of private ownership of handguns or, what is much more likely, assault rifles,
thus might turn on the usefulness of such guns in military settings. Sanford
Levinson, The Embarrassing
Second Amendment, 99 YALE L.J. 637, 654-55 (1989).
Miller
did not answer the crucial question of whether the Second
Amendment embodies an individual or collective right to bear arms. Although
its holding has been used to justify many previous lower federal court rulings
circumscribing Second
Amendment rights, the Court in Miller
simply chose a very narrow way to rule on the issue of gun possession
under the Second
Amendment, and left for another day further questions of Second
Amendment construction. See Printz
v. United States,
521 U.S. 898, 937-38 & n.1, 2 (1997) (Thomas, J., concurring).
This Court has not had recent occasion to consider the nature of the
substantive right safeguarded by the Second
Amendment. [see footnote 2] If,
however, the Second
Amendment is read to confer a personal right to "keep
and bear arms," a colorable argument exists that the Federal GovernmentÕs
regulatory scheme, at least as it pertains to the purely intrastate sale
or possession of firearms, runs afoul of that AmendmentÕs protections.
[see footnote 3]
6.
Prudential Concerns
Some scholars have argued that even if the original intent of the Second
Amendment was to provide an individual right to bear arms, modern-day
prudential concerns about social costs outweigh such original intent and should
govern current review of the amendment. However, there is a problem with such
reasoning. If one accepts the plausibility of any of the arguments on behalf
of a strong reading of the Second
Amendment, but, nevertheless, rejects them in the name of social prudence
and the present-day consequences of an individual right to bear arms, why
do we not apply such consequentialist criteria to each and every part of the
Bill of Rights? Levinson, supra at 658.
As Professor Ronald Dworkin has argued, what it means to take rights seriously
is that one will honor them even when there is significant social cost in
doing so. Protecting freedom of speech, the rights of criminal defendants,
or any other part of the Bill of Rights has significant costsÑcriminals going
free, oppressed groups having to hear viciously racist speech and so onÑconsequences
which we take for granted in defending the Bill of Rights. This mind-set changes,
however, when the Second
Amendment is concerned. "Cost-benefit" analysis, rightly or
wrongly, has become viewed as a "conservative" weapon to attack
liberal rights. Yet the tables are strikingly turned when the Second
Amendment comes into play. Here "conservatives" argue in effect
that social costs are irrelevant and "liberals" argue for a notion
of the "living Constitution" and "changed circumstances"
that would have the practical consequence of erasing the Second
Amendment from the Constitution. Levinson, supra at 657-58.
Other commentators, including Justice Scalia, have argued that even if there
would be "few tears shed if and when the Second
Amendment is held to guarantee nothing more than the state National Guard,
this would simply show that the Founders were right when they feared that
some future generation might wish to abandon liberties that they considered
essential, and so sought to protect those liberties in a Bill of Rights. We
may tolerate the abridgement of property rights and the elimination of a right
to bear arms; but we should not pretend that these are not reductions of rights."
Sanford Levinson, Is the Second Amendment Finally Becoming Recognized As
Part of the Constitution? Voices from the Courts, 1998 BYU L. REV. 127,
132 (1998) (quoting Antonin Scalia, Common-Law Courts in a Civil-Law System:
The Role of United States Federal Courts in Interpreting the Constitution
and Laws, in A Matter of Interpretation: Federal Courts and the Law 3,
43 (Amy Gutmann, ed. 1997).
In response to arguments propounded by Professor Laurence Tribe and others
describing the Second
Amendment as being simply "seemingly state-militia-based" rather
than "supporting broad principles" of private ownership of guns,
Justice Scalia pointed out that it is incorrect to assume that the word "militia"
refers only to "Ôa select group of citizen-soldiers . . . rather than,
as the Virginia Bill of Rights of June 1776 defined it, Ôthe body of the people,
trained to arms."Õ Antonin Scalia, Response, in A Matter of Interpretation,
supra at 129, 136 n.13 (quoting JOYCE LEE MALCOLM, TO
KEEP AND BEAR ARMS 136, 148 (1994)).
Justice Scalia also notes that "[t]his was also the conception of ÔmilitiaÕ
entertained by James Madison," citing The
Federalist No. 46 for support. Id. "It would also be strange,"
he goes on to say, "to find in the midst of a catalog of the rights of
individuals a provision securing to the states the right to maintain a designated
ÔMilitia.Õ Dispassionate scholarship suggests quite strongly that the right
of the people to keep and bear arms meant just that." Id. at 137
n.13 (citing JOYCE LEE MALCOLM, TO
KEEP AND BEAR ARMS (1994); William Van Alstyne, The
Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236
(1994)).
Justice Scalia concludes by stating that "[i]t is very likely that modern
Americans no longer look contemptuously, as Madison did, upon the governments
of Europe that Ôare afraid to trust the people with arms,Õ The
Federalist No. 46; and the . . . Constitution that Professor Tribe espouses
will probably give effect to that new sentiment by effectively eliminating
the Second
Amendment. But there is no need to deceive ourselves as to what the original
Second
Amendment said and meant. Of course, properly understood, it is no limitation
upon arms control by the states." Id.
Thus, concerns about the social costs of enforcing the Second
Amendment must be outweighed by considering the lengths to which the federal
courts have gone to uphold other rights in the Constitution. The rights of
the Second
Amendment should be as zealously guarded as the other individual liberties
enshrined in the Bill of Rights.
7.
Constitutionality of 18
U.S.C. § 922(g)(8)
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. The statute allows, but does not require, that the restraining
order include a finding that the person under the order represents a credible
threat to the physical safety of the intimate partner or child. 18
U.S.C. § 922(g)(8)(C)(i). If the statute only criminalized gun possession
based upon court orders with particularized findings of the likelihood of
violence, then the statute would not be so offensive, because there would
be a reasonable nexus between gun possession and the threat of violence. However,
the statute is infirm because it allows one to be subject to federal felony
prosecution if the order merely "prohibits the use, attempted use, or
threatened use of physical force against [an] intimate partner." 18
U.S.C. § 922(g)(8)(C)(ii).
However, prosecution based on such an order would be tautological, for §
922(g)(8)(C)(i) merely repeats in different wording the requirement in
subsection (B) that the order "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." §922
(g)(8)(B). 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 individualÕs
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). Under this statute, a person can lose his Second
Amendment rights not because he has committed some wrong in the past,
or because a judge finds he may commit some crime in the future, but merely
because he is in a divorce proceeding. Although he may not be a criminal at
all, he is stripped of his right to bear arms as much as a convicted felon.
Second
Amendment rights should not be so easily abridged.
It is absurd that a boilerplate state court divorce order can collaterally
and automatically extinguish a law-abiding citizenÕs 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. That
such a routine civil order has such extensive consequences totally attenuated
from divorce proceedings makes the statute unconstitutional. There must be
a limit to government regulation on lawful firearm possession. This statute
exceeds that limit, and therefore it is unconstitutional.
C.
Fifth
Amendment
Emerson also contends that 18
U.S.C. § 922(g)(8) violates his Fifth
Amendment due process rights. He argues that the perfunctory, generic
temporary orders issued in his divorce proceedings expose him to federal criminal
liability for engaging in otherwise lawful conduct.
Firearm possession is a valuable liberty interest imbedded in the Second
Amendment to the United States Constitution. "[T]here is a long tradition
of widespread lawful gun ownership by private individuals in this country."
Staples
v. United States,
511 U.S. 600, 610 (1994). Thus, Emerson has a protected liberty interest
in firearm possession under the Fifth
Amendment.
"It is wrong to convict a person of a crime if he had no reason to believe
that the act for which he was convicted was a crime, or even that it
was wrongful. This is one of the bedrock principles of American law. It lies
at the heart of any civilized system of law." United
States v. Wilson,
159 F.3d 280, 293 (7th Cir. 1998) (Posner, C.J., dissenting). It offends
both substantive and procedural due process for Emerson to be convicted of
a crime he did not know existed. Because 18
U.S.C. § 922(g)(8) is such an obscure criminal provision, it is unfair
to hold him accountable for his otherwise lawful actions.
The conduct this statute criminalizes is malum prohibitum, not malum
in se. In other words, there was nothing inherently evil about Emerson
possessing a firearm while being under a domestic restraining order. His conduct
was unlawful merely because the statute mandated that it be. Wilson,
159 F.3d at 294 (Posner, C.J., dissenting). Section 922(g)(8)
is one of the most obscure of criminal provisions. Here, Emerson owned a firearm,
and knew or should have known that if, for example, he was convicted of a
felony, he would have to relinquish ownership of his firearm. If by chance
he did not know this, the sentencing judge or the probation officer would
have informed him of the law. Nevertheless, when Emerson was made subject
to the restraining order telling him to not harass his wife, Emerson could
not have known of the requirement to relinquish his gun unless the presiding
judge issuing the order told him. In this case, the state district judge did
not tell Emerson about the requirement. EmersonÕs attorney did not tell him
either, because Emerson did not have a lawyer. The fact that the restraining
order contained no reference to guns may have led Emerson to believe that
since he complied with the order, he could carry on as before. Id. at
294-95.
Chief Judge Posner of the Seventh Circuit aptly explains the dilemma between
the maxim "ignorance of the law is no excuse" and the inherent unreasonableness
of criminal prosecutions involving obscure violations of law:
We want people to familiarize themselves with the laws bearing on their
activities. But a reasonable opportunity doesnÕt mean being able to go
to a local law library and read Title 18. It would be preposterous to
suppose that someone from [the defendantÕs] milieu is able to take advantage
of such an opportunity. If none of the conditions that make it reasonable
to dispense with proof of knowledge of the law is present, then to intone
"ignorance of the law is no defense" is to condone a violation
of fundamental principles for the sake of a modest economy in the administration
of criminal justice.
Id. at 295.
Section 922(g)(8)
is also one of those "highly technical statutes that present . . . the
danger of ensnaring individuals engaged in apparently innocent conduct,"
of which the Supreme Court spoke in Bryan
v. United States,
524 U.S. 184, 118 S. Ct. 1939, 1946-47, 141 L.Ed.2d 197 (1998). EmersonÕs
case differs from Bryan
because the statute in this case is easy to understand, but it is hard
to discover, which in the end compels the same result as demonstrated by Lambert
v. California,
355 U.S. 225 (1957).
In Lambert,
a Los Angeles ordinance made it a crime for a convicted felon to remain in
the city for more than five days without registering. Mrs. Lambert, a felon,
failed to register. The Supreme Court held that the ordinance violated due
process when applied to a person who had no notice of a duty to report. Id.
at 229. The Court found that, while a legislative body may eliminate the
mens rea from the elements of an offense, the constitutional requirement
of due process of law places limits on this practice. Id. at 228. "[T]he
existence of a mens rea is the rule of, rather than the exception to,
the principles of Anglo-American criminal jurisprudence." Staples,
511 U.S. at 605 (citing United
States v. United States Gypsum Co.,
438 U.S. 422, 436-37 (1978)). However, eliminating the mens rea requirement
is such a fundamental departure from longstanding principles of criminal law
that courts have demanded an indication of legislative intent to do so. Staples,
511 U.S. at 606. Due process requires some adequate, meaningful form of
a fair warning or notice to a respondent to a protective order that he will
be committing a crime if he possesses a firearm.
Because § 922(g)(8)
is an obscure, highly technical statute with no mens rea requirement,
it violates EmersonÕs Fifth
Amendment due process rights to be subject to prosecution without proof
of knowledge that he was violating the statute. Accordingly, EmersonÕs Motion
to Dismiss the indictment as violative of the Fifth
Amendment is granted.
D.
Tenth
Amendment
EmersonÕs last argument claims that 18
U.S.C. § 922(g)(8) violates the Tenth
Amendment. The Tenth
Amendment provides that:
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively,
or to the people.
U.S.
CONST. amend. X.
In New
York v. United States,
505 U.S. 144 (1992), the Court noted that Tenth
Amendment issues can be resolved in one of two ways. The court can first
inquire whether an Act of Congress is authorized by one of the powers of Article
I of the Constitution. Id. at 155 (citing, e.g., Perez
v. United States,
402 U.S. 146 (1971); McCulloch v. Maryland, 4 Wheat 316 (1819).
In other cases the court determines whether the Act of Congress invades the
province of state sovereignty reserved by the Tenth
Amendment. Id. (citing Garcia
v. San Antonio Metro. Transit Auth.,
469 U.S. 528 (1985); Lane County v. Oregon, 7 Wall. 71 (1869)).
"If a power is delegated to Congress in the Constitution, the Tenth
Amendment expressly disclaims any reservation of that power to the States;
if a power is an attribute of state sovereignty reserved by the Tenth
Amendment, it is necessarily a power the Constitution has not conferred
on Congress." New
York,
505 U.S. at 156 (citations omitted).
Because the Fifth Circuit has held that Congress acted pursuant to its enumerated
Commerce
Clause power under Article I, Congress therefore enacted 18
U.S.C. § 922 (g)(8) pursuant to a valid grant of power in conformity
with the Tenth
Amendment. United
States v. Pierson,
139 F.3d 501 (5th Cir. 1998). As mentioned previously, the court in Pierson
held that by creating a nexus between illegal firearm possession and interstate
commerce, Congress exercised its delegated power under the Commerce
Clause to reach a "discrete set of firearm possessions that additionally
have an explicit connection with or effect on interstate commerce." Id.
at 503. Therefore, under the first line of inquiry set forth in New
York, the statute is constitutional under the Tenth
Amendment.
The Court now turns to the second line of inquiry, whether the "Act
of Congress invades the province of state sovereignty reserved by the Tenth
Amendment." New
York,
505 U.S. at 155. In New
York,
the Court held that the Low-Level Radioactive Waste Policy Amendments Act
of 1985 unconstitutionally "commandeer[ed] the legislative processes
of the States by directly compelling them to enact and enforce a federal regulatory
program." Id. at 176 (quoting Hodel
v. Virginia Surface Mining & Reclamation Ass'n, Inc.,
452 U.S. 264, 288 (1981)).
In 1997, the Court refined this analysis by holding in Printz
v. United States that Congress may act pursuant to its Commerce
Clause powers and still violate principles of state sovereignty under
the Tenth
Amendment. 521 U.S. 898, 933 (1997). In Printz,
the Brady Act commandeered state law enforcement officers to perform background
checks on prospective handgun owners. The Court held unconstitutional this
asserted power of the Federal Government "to impress into its service
Ñ and at no cost to itself Ñ the police officers of the 50 states." Id.
at 922.
By passing 18 U.S.C.
§ 922(g)(8), however, Congress did not violate the Tenth
Amendment the way it did in New
York and Printz,
because here the federal government is not requiring state legislatures to
pass specific laws, nor is it "commandeering" state governments
into federal government service. Emerson argues, however, that §
922(g)(8) interferes with the
By passing 18 U.S.C.
§ 922(g)(8), however, Congress did not violate the Tenth
Amendment the way it did in New
York and Printz,
because here the federal government is not requiring state legislatures to
pass specific laws, nor is it "commandeering" state governments
into federal government service. Emerson argues, however, that §
922(g)(8) interferes with the ability of state judges to carry out their
state's domestic relations laws, thus impermissibly regulating an area reserved
for the states. It is true the Supreme Court has noted that family law is
traditionally an area of state concern. Hisquierdo
v. Hisquierdo,
439 U.S. 572,581(1979). And while it is arguable that §
922(g)(8) may offend general Tenth
Amendment principles of federalism, because Congress was acting through
an enumerated power in drafting the law, and the law does not command state
activity in support of it, this statute does not clearly violate the Tenth
Amendment under the Supreme Court's holdings in New
York and Printz.
Accordingly, Emerson's Tenth
Amendment challenge to the statute fails.
III.
CONCLUSION
Because 18 U.S.C.
§ 922(g)(8) violates the Second
and Fifth
Amendments to the United States Constitution, the Court GRANTS Emerson's
Motion to Dismiss the Indictment. A judgment shall be entered in conformity
with this opinion.
SO ORDERED.
Dated April 7, 1999
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Signed |
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SAM
R. CUMMINGS |
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UNITED STATES DISTRICT JUDGE |
FOOTNOTES:
Footnote 1. On
February 26, 1999, the Court granted DefendantÕs Motion to Dismiss. The
following is the CourtÕs memorandum opinion of the Order. Return
to text of the Emerson Case.
Footnote 2. "Our
most recent treatment of the Second
Amendment occurred in United
States v. Miller,
307 U.S. 174 (1939), in which we reversed the District CourtÕs invalidation
of the National Firearms Act, enacted in 1934. In Miller,
we determined that the Second
Amendment did not guarantee a citizenÕs right to possess a sawed-off
shotgun because that weapon had not been shown to be Ôordinary military
equipmentÕ that could Ôcontribute to the common defense.Õ Id., at
178. The Court did not, however, attempt to define, or otherwise construe,
the substantive right protected by the Second
Amendment." Return to text of the Emerson
Case.
Footnote 3. "Marshaling
an impressive array of historical evidence, a growing body of scholarly
commentary indicates that the Ôright to keep and bear armsÕ is, as the AmendmentÕs
text suggests, a personal right. See, e.g., J. Malcolm, To
Keep and Bear Arms: The Origins of an Anglo-American Right 162 (1994);
S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional
Right (1984); Van Alstyne, The
Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994);
Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193
(1992); Control & Diamond, The
Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J.
309 (1991); Levinson, The
Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Kates, Handgun
Prohibition and the Original Meaning of the Second Amendment, 82 Mich.
L. Rev. 204 (1983). Other scholars, however, argue that the Second Amendment
does not secure a personal right to keep or bear arms. See, e.g.,
Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Williams,
Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,
101 Yale L.J. 551 (1991); Brown, Guns, Cowboys, Philadelphia Mayors, and
Civic Republicanism: On Sanford LevinsonÕs The Embarrassing Second Amendment,
99 Yale L.J. 661 (1989); Cress, An
Armed Community: The Origins and Meaning of the Right to Bear Arms,
71 J. of Am. Hist. 22 (1984). Although somewhat overlooked in our jurisprudence,
the Amendment has certainly engendered considerable academic, as well as
public, debate.
