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 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 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 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 Government, Addressed to

the Citizens of the United States of America, and particularly to the People

of Maryland, January 31, 1788 (excerpts 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

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 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

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 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 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."

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 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, 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 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 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.

1. The district court's opinion observes that "[d]uring the

[September 4, 1998] hearing, Mrs. Emerson alleged that her husband

threatened over the telephone to kill the man with whom Mrs. Emerson

had been having an adulterous affair." United States v. Emerson, 46

F.Supp.2d 598, 599 (N.D. Tex. 1999).

2. On August 28, 1998, the day Sacha's petition was filed, Judge

Sutton had issued an ex-parte temporary restraining order prohibiting

Emerson from engaging in any of the 29 acts enumerated in Sacha's

petition pending a hearing on Sacha's request for a temporary

injunction. These acts included all those quoted in the text above

which the September 14, 1998 order enjoined Emerson from committing.

The August 28, 1998 order stated that, after examining the petition,

the court "finds that . . . unless [r]espondent . . . is immediately

restrained from the commission of the acts hereinafter prohibited,

[r]espondent will commit such acts before notice of the hearing on

temporary injunction can be served and a hearing had." This August 28,

1998 order is not the order alleged in the indictment, and in any event

it is not within the terms of § 922(g)(8)(A) which requires that the

order have been "issued after a hearing of which such person received

actual notice, and at which such person had an opportunity to

participate."

3. The motion was apparently made because of problems with a

witness. On February 25, 1999, the district court granted the

government's motion.

4. The presently relevant portions of the September 14, 1998, order

here cannot be characterized as having only a transparent or frivolous

pretense to validity.

5. The reference in this proposed amendment's subparagraph (B) to "a

person described in subparagraph (A)" plainly is to the "who is a

spouse, former spouse, domestic partner, child, or former child"

language of subparagraph (A).

6. So far as the record reflects, this case does not present a

situation where the defendant's firearm possession is merely incident

to (and/or is simply passive pending initiation and completion of) a

good faith effort to rid himself, as soon as after issuance of the

disqualifying court order as reasonably practicable under the

circumstances, of the continued possession of a previously possessed

firearm. Whether such possession is outside the intended scope of §

922(g)(8), or whether such circumstances constitute a defense akin to

that of necessity, justification or the like, or whether some such

result is constitutionally required (under the Second or Fifth or

Eighth Amendments, or otherwise), is thus not now before us. See,

generally, e.g., United States v. Newcomb, 6 F.3d 1129, 1133-38 (6th

Cir. 1993) (preventing harm to others). Cf. United States v. Gomez, 81

F.3d 846, 850-54 (9th Cir. 1996) (self-defense); United States v.

Panter, 688 F.2d 268, 269-72 (5th Cir. 1982) (same). We also observe

that the charged possession here was more than 60 days after the

September 14, 1998 order. There is no assertion that Emerson did not

know of the order when it was entered or within a day or two

thereafter.

7. The front of the form contains a section 8 which consists of 11

separate questions (respectively labeled "a" through "i") each of which

has an adjoining blank box in which the purchaser must fill in the

answer "yes" or "no." Question "8j" asks:

"j. Are you subject to a court order restraining you from

harassing, stalking, or threatening an intimate partner or

child of such partner?" (See important Notice 4 and

Definition 4.)"

Emerson, correctly, filled in the answer "no" to each of questions 8b

through 8k.

Just below section 8 of the form, and just above where Emerson

signed the form, is a five line certificate, all in bold faced and

capital letters, which includes the statement: "I understand that a

person who answers 'yes' to any of the questions 8b through 8k is

prohibited from purchasing or possessing a firearm."

The "important Notice 4 and Definition 4" to which question 8j

refers the purchaser is set out on the back of the form as follows:

"4. Under 18 U.S.C. § 922 firearms may not be sold to or

received by persons subject to a court order that: (A) was

issued after a hearing of which the person received actual

notice and had an opportunity to participate; (B) restrains

such person from harassing, stalking or threatening an

intimate partner or child of such intimate partner or

person, or engaging in other conduct that would place an

intimate partner in reasonable fear of bodily injury to the

partner or child; and (C)(i) includes a finding that such

person represents a credible threat to the physical safety

of such intimate partner or child, or (ii) by its terms

explicitly prohibits the use, attempted use, or threatened

use of physical force against such intimate partner or child

that would reasonably be expected to cause bodily injury."

We also note that paragraph (8) of § 922(g) became law in

September 1994, P.L. 103-322, Sec. 110401(c), 108 Stat. 1796, 2014-2015, 2151, approximately three years prior to Emerson's acquisition of

the firearm in question and approximately four years prior to the

September 14, 1998 order.

8. Emerson assumed, for purposes of his pretrial motion to dismiss

on Commerce Clause grounds, that the pistol had traveled into Texas in

interstate or foreign commerce at some time prior to his October 10,

1997, purchase of it in Texas. The government likewise so assumed.

Neither party alleged, the record does not reflect, and the district

court made no finding as to, when such travel in interstate or foreign

commerce occurred.

Emerson did not contend below, and does not contend on appeal,

that the pistol had not traveled in interstate or foreign commerce

after the 1994 enactment of the current version of § 922(g)(8). We

also note that Emerson's 1997 purchase of the pistol was apparently

from a federally licensed firearms 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.

9. See Michael A. Bellesiles, The Second Amendment in Action, 76

Chi.-Kent L. Rev. 61 (2000); Carl T. Bogus, The History and Politics of

Second Amendment Scholarship: A Primer, 76 Chi.-Kent L. Rev. 3 (2000);

Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis

L.Rev. 309 (1998); Keith A. Ehrman & Dennis A. Henigan, The Second

Amendment in the Twentieth Century: Have You Seen Your Militia Lately?,

15 U. Dayton L. Rev. 5 (1989); Paul Finkelman, "A Well Regulated

Militia": The Second Amendment in Historical Perspective, 76 Chi.-Kent

L. Rev. 195 (2000); Steven J. Heyman, Natural Rights and the Second

Amendment, 76 Chi.-Kent L. Rev. 237 (2000); H. Richard Uviller & William

G. Merkel, The Second Amendment in Context: The Case of the Vanishing

Predicate, 76 Chi.-Kent L. Rev. 403 (2000).

Not every proponent of this model conceives of it in exactly the

same way. For example, Heyman and Uviller argue that the Second

Amendment simply guarantees that the federal government will not do

anything to destroy the militia.

10. In Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995), a citizen

brought suit under 42 U.S.C. § 1983 against state officials for

violating, inter alia, her Second Amendment rights by denying her

application to purchase a handgun. After stating that "[t]he Second

Amendment does not apply to the states," id. at 123, the court goes on

to observe that "the Second Amendment preserves a collective, rather

than individual, right." Id. at 124.

In United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976), also

discussed in note 19, infra, the Sixth Circuit stated: "'Since the

Second Amendment right "to keep and bear Arms" applies only to the

right of the State to maintain a militia and not to the individual's

right to bear arms, there can be no serious claim to any express

constitutional right of an individual to possess a firearm.'" Id.

(quoting Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971)).

In Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir.

1999), a police officer convicted of a misdemeanor crime of domestic

violence was fired because, under 18 U.S.C. § 922(g)(9), he could no

longer possess a firearm and was, as a result, unable to perform his

duties. He brought suit against the city officials and challenged the

constitutionality of § 922(g)(9) on, inter alia, Second Amendment

grounds. The Seventh Circuit rejected the challenge, noting that the

Second Amendment's introductory clause "suggests" that it "inures not

to the individual but to the people collectively, its reach extending

so far as is necessary to protect their common interest in protection

by a militia." Id. at 710. Despite the collective nature of the

Second Amendment, the court found the plaintiff had standing to mount

his Second Amendment challenge. Id. at 711. The court also said that

the Second Amendment was not violated because under no "plausible set

of facts" would "the viability and efficacy of state militias . . . be

undermined by prohibiting those convicted of perpetrating domestic

violence from possessing weapons in or affecting interstate commerce."

Id.

Hickman v. Block, 81 F.3d 98, 99 (9th Cir. 1996), involved another

§ 1983 suit by a citizen against state officials who denied his

application for a concealed weapons permit. The Ninth Circuit decided

to "follow our sister circuits in holding that the Second Amendment is

a right held by the states, and does not protect the possession of a

weapon by a private citizen." Id. at 101. Thus, the plaintiff's lack

of standing was dispositive, though the court did note that the Second

Amendment "is not incorporated against the states." Id. at 103 n.10.

11. In Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942),

also discussed in note 19, infra, the First Circuit concluded that the

Second Amendment was not infringed because there was no evidence that

the defendant "was or ever had been a member of any military

organization or that his use of the weapon . . . was in preparation for

a military career" and the evidence showed he was "on a frolic of his

own and without any thought or intention of contributing to the

efficiency of the well regulated militia." Id. While the First

Circuit did not explicitly adopt the sophisticated collective rights

model, its analysis is in many respects consonant with it.

In United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), the

Third Circuit held that Rybar's membership in the general, unorganized

militia established by 10 U.S.C. § 311(a) did not cause his possession

of a machine gun to be so connected with militia activity that the

Second Amendment applied. While Rybar was not clear about whether it

was adopting the states' rights view or the sophisticated collective

rights view, it seems more consistent with the latter.

In United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), the

Eighth Circuit found it unnecessary to commit to either the states'

rights or the sophisticated collective rights model of the Second

Amendment. The court proclaimed that "[c]onsidering this history, we

cannot conclude that the Second Amendment protects the individual

possession of military weapons." Id. at 1019. Yet, the court went on

to consider whether the defendant's actual possession of machine guns

was "reasonably related to the preservation of a well regulated

militia." Id. at 1020. Like the Third Circuit in Rybar, the Eighth

Circuit held that membership in an unorganized militia did not satisfy

the reasonable relationship test. The court felt that unless the

reasonable relationship test was satisfied, it was "irrelevant" whether

the Second Amendment was collective or individual in nature. Id.

However, the court's inquiry into the nature of the defendant's

possession of the machine guns is more compatible with the

sophisticated collective rights model.

United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), is similar

to Rybar. In Oakes the Tenth Circuit first rebuffed the individual

rights view of the Second Amendment, then rejected defendant's argument

that, because he was "technically" a member of the Kansas militia, as

Kansas law defined its militia to include all able-bodied male citizens

between ages 21 and 45, his possession of a machine gun preserved the

effectiveness of the militia such that the Second Amendment applied.

The court did not specify whether the Second Amendment was an

individual right of extremely limited scope or whether it protected

only states rather than individuals; however, the court's willingness

to address the defendant's state militia argument is more in accord

with the sophisticated collective rights model.

United States v. Wright, 117 F.3d 1265 (11th Cir. 1997), is

similar to, and relied upon, Hale. The court held that the defendant's

membership in Georgia's "unorganized militia"(defined as all able-bodied males between ages 17 and 45 not in the organized or retired

militia-or national guard-or on the reserve list) did not render his

possession of machine guns and pipe bombs so related to the

preservation of a well regulated militia that it was necessary to

determine whether the Second Amendment "creates" a collective or

individual right. Id. at 1273-74 & n.18. The court also stated that

"[t]he possibility that in responding to a future crisis state

authorities might seek the aid of members of the unorganized militia

does not speak to the militia's current state of regulation." Again,

this approach is consistent with the sophisticated states' rights

model.

For further discussion of the sophisticated collective rights

model, see Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary

Right, 104 Yale L. J. 995, 1003-1004 (1995) and Nelson Lund, The Ends

of Second Amendment Jurisprudence: Firearms Disabilities and Domestic

Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157, 184-86 (1999).

12. See Scott Bursor, Toward a Functional Framework for

Interpreting the Second Amendment, 74 Texas L. Rev. 1125 (1996);

Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary

Right, 104 Yale L. J. 995 (1995); Robert Dowlut, The Right to

Arms: Does the Constitution or the Predilection of Judges

Reign?, 36 Okla. L. Rev. 65 (1983); Stephen P. Halbrook, The Right

of the People or the Power of the State: Bearing Arms, Arming

Militias, and the Second Amendment, 26 Val. U. L. Rev. 131 (1991);

Stephen P. Halbrook, What the Framers Intended: A Linguistic

Analysis of the Right to "Bear Arms", 49 Law & Contemp. Probs. 151

(1986); Don B. Kates, Jr., The Second Amendment and the Ideology

of Self-Protection, 9 Const. Comm. 87 (1992); Don B. Kates, Jr.,

Handgun Prohibition and the Original Meaning of the Second

Amendment, 82 Mich. L. Rev. 204 (1983); Sanford Levinson, The

Embarrassing Second Amendment, 99 Yale L. J. 637 (1989); Nelson

Lund, The Ends of Second Amendment Jurisprudence: Firearms

Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev.

L. & Pol. 157 (1999); Nelson Lund, The Past and Future of the

Individual's Right to Arms, 31 Ga. L. Rev. 1 (1996); Glenn H.

Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L.

Rev. 461 (1995); Robert E. Shalhope, The Ideological Origins of

the Second Amendment, 69 J. Am. Hist. 599 (1982); William Van

Alstyne, The Second Amendment and the Personal Right to Arms, 43

Duke L. J. 1236 (1994); Eugene Volokh, The Commonplace Second

Amendment, 73 N.Y.U. L. Rev. 793 (1998).

13. In United States v. Cruikshank, 23 L.Ed. 588 (1875), the Court

held that the Second Amendment "is one of the amendments that has no

other effect than to restrict the powers of the National Government."

Id. at 592. In Presser v. Illinois, 6 S.Ct. 580, 584 (1886), the

Court, reaffirming Cruikshank and citing Barron v. Baltimore, 8 L.Ed.

672 (1833), held that the Second "amendment is a limitation only upon

the power of congress and the national government, and not upon that of

the state." And, in Miller v. Texas, 14 S.Ct. 874 (1894), the Court

held, with respect to "the second and fourth amendments" that "the

restrictions of these amendments operate only upon the federal power,

and have no reference whatever to proceedings in state courts," citing

Barron v. Baltimore and Cruikshank. As these holdings all came well

before the Supreme Court began the process of incorporating certain

provisions of the first eight amendments into the Due Process Clause of

the Fourteenth Amendment, and as they ultimately rest on a rationale

equally applicable to all those amendments, none of them establishes

any principle governing any of the issues now before us.

14. The Court's opinion quotes the entire indictment, id. at 816, and

likewise quotes all the relevant provisions of the National Firearms

Act (then codified at 26 U.S.C. §§ 1132 et seq.), including the

definition (in its section 1) of a "firearm" as including "a shotgun or

rifle having a barrel of less than eighteen inches in length." Id.

n.1.

15. The demurrer further urged that the National Firearms Act was

also unconstitutional because it was "not a revenue measure but an

attempt to usurp police power reserved to the States." Miller at 817.

The district court did not address this contention. The Supreme Court

dismissed it as "plainly untenable," citing Sonzinksky v. United

States, 57 S.Ct. 554 (1937), and several cases "under the Harrison

Narcotic Act," including Nigro v. United States, 48 S.Ct. 388 (1927).

Miller at 818. The government's brief addressed only the issue of

whether section 11 of the National Firearms Act contravened the Second

Amendment.

16. The government's Miller brief (pp. 12-14) also quotes at length

from Aymette at pp. 156-57 as background support for its first argument

(namely that the Second Amendment protects arms bearing only where it

occurs during actual militia service). However, while some of the

Aymette language quoted tends in that direction, the actual holding of

that case appears to rest on the basis stated in the quotation set out

in the text above. In Aymette the defendant appealed his conviction of

violating the statute making it a misdemeanor to "wear any bowie knife

. . . under his clothes, or . . . concealed about his person." The

evidence showed that the defendant, with "a bowie-knife concealed under

his vest," went into a hotel looking for an individual he said he

intended to kill. He contended on appeal that the conviction violated

the provision of the Tennessee constitution declaring "that the free

white men of this State have a right to keep and bear arms for their

common defence." The court emphasized the presence and significance of

the word "common." But although it was obvious from the facts recited

that the defendant was not engaged in any character of militia service

on the occasion in question, but was rather engaged only in an entirely

personal activity of his own, the Aymette court did not make this a

ground for its decision. Rather, it appears to have affirmed on the

basis that [t]he Legislature . . . have a right to prohibit the wearing

or keeping weapons . . . which are not usual in civilized warfare, or

would not contribute to the common defence" and, alternatively, that

"the Legislature may prohibit such manner of wearing [arms] as would

never be resorted to by persons engaged in the common defence." Id. at

159.

17. In Robertson the Court, in upholding the constitutionality of the

federal statute authorizing the apprehension, imprisonment and return

of deserting merchant seamen, stated, in the passage obviously referred

to in the government's Miller brief, as follows (17 S.Ct. at 329):

". . . the first 10 amendments to the constitution, commonly

known as the 'Bill of Rights,' were not intended to lay down

any novel principles of government, but simply to embody

certain guaranties and immunities which we had inherited

from our English ancestors, and which had, from time

immemorial, been subject to certain well-recognized

exceptions, arising from the necessities of the case. In

incorporating these principles into the fundamental law,

there was no intention of disregarding the exceptions, which

continued to be recognized as if they had been formally

expressed. Thus, the freedom of speech and of the press

(article 1) does not permit the publication of libels,

blasphemous or indecent articles, or other publications

injurious to public morals or private reputation; the right

of the people to keep and bear arms (article 2) is not

infringed by laws prohibiting the carrying of concealed

weapons; the provision that no person shall be twice put in

jeopardy (article 5) does not prevent a second trial, if

upon the first trial the jury failed to agree, or if the

verdict was set aside upon the defendant's motion . . . nor

does the provision of the same article that no one shall be

a witness against himself impair his obligation to testify,

if a prosecution against him be barred by the lapse of time,

a pardon, or by statutory enactment . . . Nor does the

provision that an accused person shall be confronted with

the witnesses against him prevent the admission of dying

declarations, or the depositions of witnesses who have died

since the former trial." (emphasis added)

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

18. We also observe that the Miller opinion's above reference in

quotation marks to a shotgun "'having a barrel of less than eighteen

inches in length'" is a quotation from section 1 of the National

Firearms Act, not from the indictment (which refers to "a double barrel

12-gauge Stevens shotgun having a barrel less than 18 inches in

length").

19. We note that Justice Thomas, in his concurring opinion in Printz

v. United States, 117 S.Ct. 2365, 2386 n.1 (1997), remarked that "[i]n

Miller, we determined that the Second Amendment did not guarantee a

citizen's right to possess a sawed-off shotgun because that weapon had

not been shown to be 'ordinary military equipment' that could

'contribute to the common defense.' The Court did not, however,

attempt to define, or otherwise construe, the substantive right

protected by the Second Amendment."

Further, in Cases v. United States, 131 F.2d 916, 922 (1st Cir.

1942), the First Circuit interpreted Miller as resting entirely on the

type of weapon involved not having any reasonable relationship to

preservation or efficiency of a well regulated militia. The Cases

court, however, stated that "we do not feel that the Supreme Court in

this case [Miller] was attempting to formulate a general rule

applicable to all cases. The rule which it laid down was adequate to

dispose of the case before it and that we think was as far as the

Supreme Court intended to go." Id., 131 F.2d at 922. Cases thereafter

observes:

"Considering the many variable factors bearing upon the

question it seems to us impossible to formulate any general

test by which to determine the limits imposed by the Second

Amendment but that each case under it, like cases under the

due process clause, must be decided on its own facts and the

line between what is and what is not a valid federal

restriction pricked out by decided cases falling on one side

or the other of the line." Id.

Cases then goes on, without further analysis or citation of authority,

to conclude that although the weapon there involved (a .38 caliber

revolver) "may be capable of military use, or . . . familiarity with it

. . . of value in training a person to use a comparable weapon of

military type," nevertheless the Second Amendment was not infringed

because "there is no evidence that the appellant was or ever had been

a member of any military organization or that his use of the weapon .

. . was in preparation for a military career" but he was rather "simply

on a frolic of his own and without any thought or intention of

contributing to the efficiency of the well regulated militia which the

Second Amendment was designed to foster . . . ." Id. at 922-23.

In United States v. Warin, 530 F.2d 103 (6th Cir. 1976), the court

(rejecting a Second Amendment challenge to a conviction for possessing

an unregistered 7 1Ž2 inch barrel submachine gun contrary to the National

Firearms Act), though concluding that "'the Second Amendment right' 'to

keep and bear arms' applies only to the right of the State to maintain

a militia and not to the individual's right to bear arms,'"

nevertheless recognized that this conclusion was not based on Miller,

stating that Miller "did not reach the question of the extent to which

a weapon which is 'part of the ordinary military equipment' or whose

'use could contribute to the common defense' may be regulated" and

agreeing with Cases "that the Supreme Court did not lay down a general

rule in Miller." Id., 530 F.2d at 105-06. The court also stated that

the Second Amendment, even if it protected individual rights, "does not

constitute an absolute barrier to the congressional regulation of

firearms," noting that "even the First Amendment has never been treated

as establishing an absolute prohibition against limitations on the

rights guaranteed therein." Id. at 107.

20. Article 1, § 8 commences "The Congress shall have Power," and

states in clauses 15 and 16:

"To provide for calling forth the Militia to execute the

Laws of the Union, suppress Insurrections and repel

Invasions;

To provide for organizing, arming, and disciplining, the

Militia, and for governing such Part of them as may be

employed in the Service of the United States, reserving to

the States respectively, the Appointment of the Officers,

and the Authority of training the Militia according to the

discipline prescribed by Congress;"

21. The government relies on language in a footnote in Lewis v.

United States, 100 S.Ct. 915, 921 n.8 (1980), stating with respect to

the then felon-in-possession statute (former 18 U.S.C. App. §

1202(a)(1)):

"These legislative restrictions on the use of firearms are

neither based upon constitutionally suspect criteria, nor do

they trench upon any constitutionally protected liberties.

See United States v. Miller, . . ., 59 S.Ct. 816, 818 . . .

(1939) (the Second Amendment guarantees no right to keep and

bear a firearm that does not have "some reasonable

relationship to the preservation or efficiency of a well

regulated militia")."

This does not suggest a collective rights or sophisticated collective

rights approach to the Second Amendment any more than does Miller

itself. We also note that recognition that the Second Amendment does

not prohibit legislation such as former § 1202(a)(1) is in no way

inconsistent with an individual rights model. See, e.g., Robertson v.

Baldwin, 17 S.Ct. 326, 329 (1897) (quoted in note 17, supra) (bill of

rights protections are not absolutes but subject to exceptions, so the

First Amendment does not permit the publication of libels, the Second

Amendment "is not infringed by laws prohibiting the carrying of

concealed weapons," the double jeopardy clause does not preclude

retrial where the jury fails to agree, the confrontation clause does

not exclude dying declarations, etc.). See also Robert Dowlut, The

Right to Arms: Does the Constitution or the Predilection of Judges

Reign?, 36 Okla L. Rev. 65, 96 (1983) ("Colonial and English societies

of the eighteenth century, as well as their modern counterparts, have

excluded infants, idiots, lunatics, and felons [from possessing

firearms]."); Stephen P. Halbrook, What the Framers Intended: A

Linguistic Analysis of the Right to "Bear Arms", 49 Law & Contemp. Probs.

151 (1986) ("violent criminals, children, and those of unsound mind may

be deprived of firearms . . . ."); Don B. Kates, Jr., Handgun

Prohibition and the Original Meaning of the Second Amendment, 82 Mich.

L. Rev. 204, 266 (1983) ("Nor does it seem that the Founders considered

felons within the common law right to arms or intended to confer any

such right upon them."). We further observe that Lewis presented no

Second Amendment challenge to the § 1202(a)(1) conviction and the

Second Amendment was not at issue there.

The government also cites in this connection our decisions in

United States v. Williams, 446 F.2d 486 (5th Cir. 1971), and United

States v. Johnson, 441 F.2d 1134 (5th Cir. 1971), but these National

Firearms Act unregistered sawed-off shotgun prosecutions do no more

than apply Miller to virtually identical facts and do not adopt or

suggest that Miller adopted a collective rights or sophisticated

collective rights approach to the Second Amendment.

22. There is no contention here that the Beretta pistol possessed is

a kind or type of weapon that is neither "any part of the ordinary

military equipment" nor such "that its use could contribute to the

common defense" within the language of Miller (nor that it is otherwise

within the kind or type of weapon embraced in the government's second

Miller argument, e.g., "weapons which can have no legitimate use in the

hands of private individuals" so as to be categorically excluded from

the scope of the Second Amendment under Miller's holding).

23. As noted below in our discussion of the history of the Second

Amendment, many Americans at this time not only feared a standing army

but also a select militia, a militia comprised of only a relatively few

selected individuals (perhaps the youngest and fittest) who were more

frequently and better trained and equipped than the general,

unorganized militia. Such a select militia would be analogous to

today's National Guard.

24. See U.S. Const. Art. I, § 1, Cl. 1 ("[a]ll legislative Powers

herein granted shall be vested in a Congress of the United States . .

. ."); Art 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 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 . . . .").

26. The cited portions of Casey and Moore quote with approval from

Justice Harlan's dissenting opinion in Poe v. Ullman, 81 S.Ct. 1752,

1776-77 (1961), the following passage (among others), viz:

"'[T]he full scope of the liberty guaranteed by the Due

Process Clause cannot be found in or limited by the precise

terms of the specific guarantees elsewhere provided in the

Constitution. This 'liberty' is not a series of isolated

points pricked out in terms of the taking of property; the

freedom of speech, press, and religion; the right to keep

and bear arms; the freedom from unreasonable searches and

seizures; and so on.'"

The same language is quoted with approval in Justice White's Moore

dissent. Id., 97 S.Ct. at 1957-58. An earlier portion of the Casey

opinion speaks of rejecting the notion that Fourteenth Amendment

"liberty encompasses no more than those rights already guaranteed to

the individual against federal interference by the express provisions

of the first eight Amendments." Id. at 2804-05 (emphasis added).

27. Justice Black's concurring opinion in Duncan quotes with approval

a portion of the remarks of Senator Howard on introducing the

Fourteenth Amendment for passage in the Senate, stating that its

privileges and immunities clause should include:

"'. . . the personal rights guarantied and secured by the

first eight amendments of the Constitution; such as the

freedom of speech and of the press; the right of the people

peaceably to assemble and petition the Government for a

redress of grievances, a right appertaining to each and all

the people; the right to keep and to bear arms; the right to

be exempted from the quartering of soldiers in a house

without the consent of the owner; the right to be exempt

from unreasonable searches and seizures, and from any search

or seizure except by virtue of a warrant issued upon a

formal oath or affidavit; the right of an accused person to

be informed of the nature of the accusation against him, and

his right to be tried by an impartial jury of the vicinage;

and also the right to be secure against excessive bail and

against cruel and unusual punishments.'" Id. at 1456

(emphasis added).

28. New Hampshire's 1784 Constitution contained such a provision and

Rhode Island's 1790 ratification convention proposed an amendment to

the United States Constitution that would have included a conscientious

objector clause.

29. See Ala. Const. Art. 1, § 23 (1819) ("Every citizen has a right

to bear arms in defense of himself and the state."); Conn. Const. Art.

I, § 17 (1818) ("Every citizen has a right to bear arms in defense of

himself and the State."); Ind. Const. Art. I, § 20 (1816) ("That the

people have a right to bear arms for the defence of themselves and the

State; and that the military shall be kept in strict subordination to

the civil power."); Ky. Const. Art. 10, ¶ 23 (1792) ("That the right of

the citizens to bear arms in defense of themselves and the State, shall

not be questioned"); Mich. Const. Art. I, § 13 (1835) ("Every person has

a right to keep and bear arms for the defense of himself and the

State."); Miss. Const. Art. I, § 23 (1817) ("Every citizen has a right

to bear arms, in defence of himself and the State."); Mo. Const. Art.

XIII, § 3 (1820) ("That the people have the right peaceably to

assemble for their common good, and to apply to those vested with the

powers of government for redress of grievances by petition or

remonstrance; and that their right to bear arms in defense of

themselves and of the State cannot be questioned.");Ohio Const. Art.

VIII, § 20 (1802) ("That the people have a right to bear arms for the

defense of themselves and the State; and as standing armies, in time of

peace, are dangerous to liberty, they shall not be kept up, and that

the military shall be kept under strict subordination to the civil

power."); Pa. Const., Declaration of the Rights of the Inhabitants of

the Commonwealth or State of Pennsylvania, Art. XIII (September 28,

1776) ("That the people have a right to bear arms for the defence of

themselves and the state;"); Pa. Const. Art. I, § 21 (1790) ("The right

of the citizens to bear arms in defense of themselves and the State

shall not be questioned."); Vt. Declaration of the Rights of the

Inhabitants of the State of Vermont Chp. 1 art. XV (July 8, 1777)

("That the people have a right to bear arms for the defence of

themselves and the State") (note, Vermont was claimed by New York, and

was not recognized as a state until 1791).

30. We also observe that to interpret state constitutional 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 shotgun with barrel less than 18 inches long, provision

of § 17 of bill of rights that "the people have a right to keep and

bear arms for the common defense" is "not directed to guaranteeing

individual ownership or possession of weapons;" while a "law forbidding

the keeping by individuals of arms that were used in the militia

service might then have interfered with the effectiveness of the

militia and thus offended the art. 17 right . . . that situation no

longer exists; our militia, of which the backbone is the National

Guard, is now equipped and supported by public funds.").

31. We note that in Aymette, supra, the Tennessee Supreme Court, in

analyzing § 26 of its bill of rights ("that the free white men of this

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

construed differently the "keep" and the "bear" portions of that

section. As to the "bear" aspect, the court looked to § 28 of the bill

of rights ("no citizen of this State shall be required to bear arms

provided he will pay an equivalent") and opined that "bear" arms "has

a military sense." It likewise said that in § 26 "the arms the right

to keep which is secured are such as are usually employed in civilized

warfare" not "those weapons which are usually employed in private

broils, and which are efficient only in the hands of the robber and the

assassin." Aymette thereafter observed that as to "arms" of the type

covered by § 26:

"The citizens have the unqualified right to keep the weapon,

it being of the character before described as being intended

by this provision. But the right to bear arms is not of

that unqualified character. The citizens may bear them for

the common defence; but it does not follow that they may be

borne by an individual, merely to terrify the people or for

purposes of private assassination. And, . . . the

Legislature may prohibit such manner of wearing as would

never be resorted to by persons engaged in the common

defence." (emphasis added)

This is consistent with the Court's earlier observation respecting § 26

that "although this right must be inviolably preserved, yet it does not

follow that the Legislature is prohibited altogether from passing laws

regulating the manner in which these arms may be employed." (emphasis

added). A "military" connotation is given to "bear" and to some extent

to "arms" but not to "keep." Beyond such connection as may arise from

the general type of weapon, no character of military status or activity

whatever was required to come within the protected right to "keep . .

. arms;" that right was "unqualified;" though "the right to bear arms

is not of that unqualified character."

32. It seems clear under longstanding and generally accepted

principles of statutory construction, that, at least where the preamble

and the operative portion of the statute may reasonably be read

consistently with each other, the preamble may not properly support a

reading of the operative portion which would plainly be at odds with

what otherwise would be its clear meaning. See, e.g., Dwarris, A

General Treatise on Statutes, 268, 269 (Wm. Gould & Sons, 1871) (footnotes

omitted) ("The general purview of a statute is not, however,

necessarily to be restrained by any words introductory to the enacting

clauses. Larger and stronger words in the enactment part of a statute

may extend it beyond the preamble. If the enacting words are plain,

and sufficiently comprehensive to embrace the mischief intended to be

prevented, they shall extend to it, though the preamble does not

warrant the construction. . . . But though the preamble cannot control

the enacting part of a statute, which is expressed in clear and

unambiguous terms, yet, if any doubt arise on the words of the enacting

part, the preamble may be resorted to, to explain it. In truth, it

then resolves itself into a question of intention; or in other words,

recourse is had to the primary rules of interpretation. For the words

being doubtful, the preamble is compared to the rest of the act, in

order to collect the intention of the legislature, whether they meant

it to extend to a case like that under consideration."); Sedgwick, The

Interpretation and Construction of Statutes and Constitutional Law, 43 (Fred

Rothman & Co. 1980) (reprint of 1874 edition with notes) ("In the

modern English cases it is said that the preamble may be used to

ascertain and fix the subject matter to which the enacting part is to

be applied. So, the purview or body of the act may even be restrained

by the preamble, when no inconsistency or contradiction results. But

it is well settled that where the intention of the Legislature is

clearly expressed in the purview, the preamble shall not restrain it,

although it be of much narrower import."); Joel P. Bishop, Commentaries

on the Written Laws and Their Interpretation, 49 (Little, Brown, 1882)

(footnotes omitted) ("As showing the inducements to the act, it may

have a decisive weight in a doubtful case. But where the body of the

statute is distinct, it will prevail over a more restricted preamble.

. . . We look to this introductory matter for the general intent of the

legislature,-the reasons and principles upon which the law proceeds.

So that, to the extent to which these can influence the interpretation,

the preamble becomes important. . . . In the words of Ellenborough,

C.J.: 'In a vast number of acts of Parliament, although a particular

mischief is recited in the preamble, yet the legislative provisions

extend far beyond the mischief recited. And whether the words shall be

restrained or not must depend on a fair exposition of the particular

statute in each particular case, and not upon any universal rule of

construction.'").

We also observe the various particular provisions of the bill of

rights of many early state constitutions contained introductory

justification clauses, usually in the form of a general statement of

political or governmental philosophy. Examples are given in Volokh,

Commonplace Second Amendment, supra 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

shall be of age eighteen years, and under the age of forty-five years

. . . ." and required each to "provide himself with a good musket . .

. or with a good rifle. . ." 1 Stat. 271 (1792).

The modern militia statute, 10 U.S.C. § 311 provides:

"(a) The militia of the United States consists of all

able-bodied males at least 17 years of age and, except as

provided in section 313 of title 32, under 45 years of age

who are, or who have made a declaration of intention to

become, citizens of the United States and of female citizens

of the United States who are members of the National Guard.

(b) The classes of the militia are-

(1) the organized militia, which consists of the

National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the

members of the militia who are not members of the National

Guard or the Naval Militia."

34. "That the People have a Right to keep & to bear Arms; that a well

regulated Militia, composed of the Body of the People, trained to Arms,

is the proper natural and safe Defence of a free State . . . ."

Richmond Antifederal Committee Proposed Bill of Rights, § 17, reprinted

in Young, The Origin of the Second Amendment (2nd ed. 1995) (Golden Oak

Books) (hereafter Young), at 390.

Virginia's proposed Bill of Rights included a similar provision:

"That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms,

is the proper, natural, and safe defence of a free state . . . ." 3

Jonathan Elliot, The Debates in the Several State Conventions on the Adoption

of the Federal Constitution 659 (2d ed., 1836). North Carolina proposed

a virtually identical provision, 4 Jonathan Elliot, The Debates in the

Several State Conventions on the Adoption of the Federal Constitution 244 (2d

ed., 1836), as also did New York, New York Convention, July 26, 1788,

reprinted in Young, supra, at 480-88.

35. "It has been urged that they [standing armies] are necessary to

provide against sudden attacks. Would not a well regulated militia,

duly trained to discipline, afford ample security?" The Impartial

Examiner, Virginia Independent Chronicle, February 27, 1788, excerpt

reprinted in Young, supra, at 285.

"A well regulated and disciplined militia, is at all times a good

objection to the introduction of that bane of all free governments-a

standing army." Governor John Hancock, New York Journal, January 28,

1790, reprinted in Young, supra, at 731.

36. See, e.g., Debates In The Convention of the Commonwealth of Virginia,

reprinted in 3 J. ELLIOT, debates in the several state Conventions 425 (3d

ed. 1937) (statement of George Mason, June 14, 1788) ("Who are the

militia? They consist now of the whole people...."); letters from the

federal farmer to the republican 123 (W. Bennett ed. 1978) (ascribed to

Richard Henry Lee) ("[a] militia, when properly formed, are in fact the

people themselves...."); Letter from Tench Coxe to the Pennsylvania

Gazette (Feb. 20, 1778), reprinted in The documentary history of the

ratification of the constitution (Mfm. Supp. 1976) ("Who are these militia?

are they not ourselves.") (emphasis in original).

37. Hamilton in Federalist 29 likewise obviously considered the

militia as being composed of "the people at large," though he did not

believe such a force could be made very effective. He states that

"disciplining all of the militia" would be "futile," requiring more

than "a month" (obviously per year), and that "[l]ittle more can

reasonably be aimed at with respect to the people at large than to have

them properly armed and equipped; and in order to see that this be not

neglected, it will be necessary to assemble them once or twice in the

course of a year." Hamilton therefore took the position that "the

proper establishment of the militia" also required "the formation of a

select corps of moderate size." The Federalist Papers, supra at 184-85.

38. See Appendix-part 1.

39. See Patrick Henry, Virginia Convention, June 5, 1788 (excerpt

reprinted in Young, supra 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 in the proposed new Constitution; particularly the almost

unlimited Authority over the Militia of the several States; whereby,

under Colour of regulating, them may disarm, or render useless the

Militia, the more easily to govern by a standing Army; or they may

harass the Militia, by such rigid Regulations, and intollerable

Burdens, as to make the People themselves desire it's Abolition.");

George Mason, Virginia Convention, June 14, 1788 (excerpt reprinted in

Young, supra at 401) ("There are various ways of destroying the

militia. A standing army may be perpetually established in their

stead. I abominate and detest the idea of a government, where there is

a standing army. The militia may be here destroyed by that method

which has been practised in other parts of the world before; that is,

by rendering them useless-by disarming them."); William Lenoir, North

Carolina Convention, July 30, 1788 (excerpt reprinted in Young, supra

at 496-500) ("When we consider the great powers of Congress, there is

great cause of alarm. They can disarm the militia. If they were

armed, they would be a resource against great oppressions.").

41. Patrick Henry, Virginia Convention, June 5, 1788 (excerpt

reprinted in Young, supra note 34, at 374) ("If they [Congress] neglect

or refuse to discipline or arm our militia, they will be useless: the

states can do neither-this power being exclusively given to

Congress.").

42. See A Number of Letters from the Federal Farmer to the Republican,

Letter III, November 8, 1787 (reprinted in Young, supra note 34, at 91)

("it is true, the yoemanry of the country possess the lands, the weight

of property, possess arms, and are too strong a body of men to be

openly offended-and, therefore, it is urged [by the Federalists], they

will take care of themselves, that men who shall govern will not dare

pay any disrespect to their opinions. It is easily perceived, that if

they have not their proper negative upon passing laws in congress, or

on the passage of laws relative to taxes and armies, they may in twenty

or thirty years be by means imperceptible to them, totally deprived of

that boasted weight and strength: This may be done in a great measure

by congress, if disposed to do it, by modelling the militia. Should

one fifth, or one eighth part of the men capable of bearing arms, be

made a select militia, as has been proposed, and those the young and

ardent part of the community, possessed of but little or no property,

and all the others put upon a plan that will render them of no

importance, the former will answer all the purposes of an army, while

the latter will be defenceless."). See also note 58, infra.

43. Luther Martin, Baltimore Maryland Journal, March 18, 1788 (excerpt

reprinted in Young, supra note 34, at 301-302) ("That a system [the

Constitution] may enable government wantonly to exercise power over the

militia, to call out an unreasonable number from any particular state

without its permission, and to march them upon, and continue them in,

remote and improper services-that the same system should enable the

government totally to discard, render useless, and even disarm the

militia, when it would remove them out of the way of opposing its

ambitious views, is by no means inconsistent, and is really the case in

the proposed constitution . . . . It [the federal government] has also,

by another clause, the powers, by which only the militia can be

organized and armed, and by the neglect of which they may be rendered

utterly useless and insignificant, when it suits the ambitious purposes

of government:-Nor is the suggestion unreasonable . . . that the

government might improperly oppress and harass the militia, the better

to reconcile them to the idea of regular troops, who might relieve them

of the burthen, and to render them less opposed to the measures it

might be disposed to adopt for the purpose of reducing them to that

state of insignificancy and uselessness."); George Mason, Virginia

Convention, June 14, 1788 (excerpt reprinted in Young, supra at

401,402) ("If they [Congress] ever attempt to harass and abuse the

militia, they may abolish them, and raise a standing army in their

stead. . . . If, at any time, our rulers should have unjust and

iniquitous designs against our liberties, and should wish to establish

a standing army, the first attempt would be to render the service and

use of militia odious to the people themselves-subjecting them to

unnecessary severity of discipline in time of peace, confining them

under martial law, and disgusting them so much as to make them cry out.

'Give us a standing army!'").

44. See A Democratic Federalist, Philadelphia Pennsylvania Herald,

October 17, 1787 (excerpts reprinted in Young, supra note 34, at 46)

("[T]he federal rulers are vested with each of the three essential

powers of government-their laws are to be paramount to the laws of the

different states. What then will there be to oppose their

encroachments? Should they ever pretend to tyrannize over the people,

their standing army will silence every popular effort; it will be

theirs to explain the powers which have been granted to them. . . .

[T]he liberty of the people will be no more. . . ."); Centinel II,

Philadelphia Independent Gazetteer, October 24, 1787 (excerpts reprinted

in Young, supra at 59) ("A standing army with regular provision of pay

and contingencies, would afford a strong temptation to some ambitious

man to step up into the throne, and to seize absolute power.");

Philadelphienses III, Philadelphia Freeman's Journal, December 5, 1787

(excerpts reprinted in Young, supra at 139) ("And in respect to the

standing army, it will only be made up of profligate idle ruffians,

whose prowess will chiefly consist of feats of cruelty exercised on

their innocent fellow citizens . . . ."); A Farmer, Exeter, New

Hampshire Freeman's Oracle, January 11, 1788 (excerpts reprinted in

Young, supra at 206) ("An army, either in peace or war, is like the

locust and caterpillers of Egypt; they bear down all before them-and

many times, by designing men, have been used as an engine to destroy

the liberties of a people, and reduce them to the most abject slavery.

. . . Organize your militia, arm them well, and under Providence they

will be a sufficient security."); A Ploughman, Winchester Virginia

Gazette, March 19, 1788 (reprinted in Young, supra at 303) ("And in

order to rivet the chains of perpetual slavery upon us, they have made

a standing army an essential part of the Federal Constitution, which

the world cannot produce an instance of a more permanent foundation to

erect the fabrik of tyranny upon; . . . to keep a standing army, gives

cause to suspect that the rulers are afraid of the people, or that they

may have a design upon them. If their designs are oppressive, the army

is necessary to compleat the tyranny; if the army is the strongest

force in a State, it must be a military government, and it is eternally

true, that a free government and a standing army are absolutely

incompatible.").

45. See Philadelphia Freeman's Journal, January 16, 1788 (excerpt

reprinted in Young, supra note 34, at 211-13) ("They well know the

impolicy of putting or keeping arms in the hands of a nervous people,

at a distance from the seat of a government, upon whom they mean to

exercise the powers granted in that government. . . . Tyrants have

never placed any confidence on a militia composed of freemen.

Experience has taught them that a standing body of regular forces,

whenever they can be completely introduced, are always efficacious in

enforcing their edicts, however arbitrary . . . . There is no instance

of any government being reduced to a confirmed tyranny without military

oppression; and the first policy of tyrants has been to annihilate all

other means of national activity and defence, when they feared

opposition, and to rely solely upon standing troops."); Luther Martin,

Genuine Information IV, Baltimore Maryland Gazette, January 17, 1788

(excerpt reprinted in Young, supra at 221) ("[W]hen a government wishes

to deprive their citizens of freedom, and reduce them to slavery, it

generally makes use of a standing army for that purpose, and leaves the

militia in a situation as contemptible as possible, least they might

oppose its arbitrary designs-That in this system [the Constitution], we

give the general government every provision it could wish for, and even

invite it to subvert the liberties of the States and their citizens,

since we give them the right to encrease and keep up a standing army as

numerous as it would wish, and by placing the militia under its power,

enable it to leave the militia totally unorganized, undisciplined and

even to disarm them; while the citizens, so far from complaining of

this neglect, might even esteem it a favour in the general government,

as thereby they would be freed from the burthen of military duties, and

left to their own private occupations or pleasures."); Patrick Henry,

Virginia Convention, June 5, 1788 (excerpts reprinted in Young, supra

at 370) ("Have we the means of resisting disciplined armies, when our

only defence, the militia, is put into the hands of Congress?").

46. George Mason, Virginia Convention, June 14, 1788 (excerpt

reprinted in Young, supra note 34, at 402) ("I wish that, in case the

general government should neglect to arm and discipline the militia,

there should be an express declaration that the state governments might

arm and discipline them.").

47. See Appendix-part 2.

48. See Appendix-part 3.

49. See Appendix-part 4.

50. See Appendix-part 5.

51. See Appendix-part 6.

52. James Madison, Virginia Convention, June 14, 1788 (excerpt

reprinted in Young, supra note 34, at 403) ("I cannot conceive that

this Constitution, by giving the general government the power of arming

the militia, takes it away from the state governments. The power is

concurrent, and not exclusive."); Patrick Henry, Virginia Convention,

June 14, 1788 (excerpt reprinted in Young, supra at 407) ("The great

object is, that every man be armed. . . . When this power is given up

to Congress without limitation or bounds, how will your militia be

armed? You trust to chance; for sure I am that that nation which shall

trust its liberties in other hands cannot long exist. If gentlemen are

serious when they suppose a concurrent power, where can be the impolicy

to amend it?").

53. Some of the Federalists' responses, e.g., James Madison's in

Federalist 46, spoke of the militia as defending the people against

federal tyranny. Opponents of the individual rights view assert that

these references to the militia indicate that the Federalists' response

depended not on the people being armed, but on the states having the

power to arm the militia. While it is true that the Anti-Federalists

desired this concession, the Second Amendment did not provide it. We

think Madison's message in Federalist 46 is clear: the Anti-Federalists

were not to worry about federal tyranny because those who comprised the

militia could resist such tyranny since the the American people were

armed. Federalist 46 speaks about the significance of the government

trusting the people with arms and of the states as a "barrier against

the enterprises of ambition", but does not say that the state

governments had (or would be given) power to arm the militia.

Federalist 46 clearly depends, in large part, on the American people

being armed. In this respect, Madison's rationale in Federalist 46 is

substantially the same as that of the Second Amendment which he would

craft over a year later.

54. This was one of several clauses which Madison's proposal, in its

fourth ("fourthly") section, called for to be inserted in art. 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).

55. Before the close vote was taken, Congressman Benson offered

another rationale for striking the clause, and it was he who actually

moved to strike. Benson believed there was no natural right to be

exempted from military service and that such exemptions should be left

to the "benevolence" of the legislature. House of Representatives,

Debates, August 17, 1789 (excerpt reprinted in Young, supra note 34, at

697).

56. If this was what Scott was thinking, he was wrong. As will be

shown, proposals to limit the federal government's power to maintain a

standing army were defeated in both the House and the Senate.

57. This rejected amendment read:

"That each state, respectively, shall have the power to provide

for organizing, arming, and disciplining, its own militia, whensoever

Congress shall omit or neglect to provide for the same; that the

militia shall not be subject to martial law, except when in actual

service, in time of war, invasion, or rebellion; and when not in the

actual service of the United States, shall be subject only to such

fines, penalties, and punishments, as shall be directed or inflicted by

the laws of its own state." Journal of the First Session of the Senate 75

(Washington, D.C. 1820).

In Houston v. Moore, 18 U.S. [5 Wheat] 1, 5 L.Ed. 19 (1820), the

Supreme Court held that states retain the power to organize, arm, and

discipline their militias provided that the exercise thereof is not

repugnant to the authority of the Union. The Court reasoned that

because the Constitution failed to divest the states of their

preexistent militia powers, such powers remained. Id. 5 L.Ed. at 22-23. The majority did not rely upon or even refer to the Second

Amendment.

The only mention of the Second Amendment was by Justice Story in

his dissent, wherein he observed that the Second Amendment probably did

not have "any important bearing" on the question of whether states had

power to organize, arm, and discipline their militias. Id. 5 L.Ed. at

31.

It seems likely that if the Second Amendment was intended only to

grant the states concurrent power to organize, arm, and discipline

their militias, the Supreme Court would have relied, at least in part,

upon the Second Amendment for its holding. As it happened, the only

mention of the Second Amendment was by the dissent in pointing out the

Second Amendment's probable irrelevance to the state militia powers

issue.

58. See note 42, supra, and the following: John Smilie, Pennsylvania

Convention, December 6, 1787 (excerpts reprinted in Young, supra note

34, at 145-46) ("I object to the power of Congress over the militia and

to keep a standing army. . . . Congress may give us a select militia

which will, in fact, be a standing army-or Congress, afraid of a

general militia, may say there shall be no militia at all. When a

select militia is formed, the people in general may be disarmed.");

Centinel IX, Philadelphia Independent Gazetteer, January 8, 1788

(excerpt reprinted in Young, supra 192) (footnote omitted) ("I was ever

jealous of the select militia, consisting of infantry and troops of

horse, instituted in this city and some of the counties, . . . . Are

not these corps provided to suppress the first efforts of freedom, and

to check the spirit of the people until a regular and sufficiently

powerful military force shall be embodied to rivet the chains of

slavery on a deluded nation."); A Countryman, New York Journal, January

22, 1788 (excerpt reprinted in Young, supra at 224) ("Should the new

constitution be sufficiently corrected by a substantial bill of rights

. . . separating the legislative, judicial and executive departments

entirely, and confining the national government to its proper objects;

but, by no means admitting a standing army in time of peace, nor a

select militia, which last, is a scheme that a certain head has, for

some time, been teeming with, and is nothing else but an artful

introduction to the other . . . I imagine we might become a happy and

respectable people."); An Additional Number of Letters from the Federal

Farmer to the Republican, Letter XVIII, May 1788 (reprinted in Young,

supra at 354-55) (footnote omitted) ("First, the constitution ought to

secure a genuine and guard against a select militia, by providing that

the militia shall always be kept well organized, armed, and

disciplined, and include, according to the past and general usuage of

the states, all men capable of bearing arms; and that all regulations

tending to render this general militia useless and defenceless, by

establishing select corps of militia, or distinct bodies of military

men, not having permanent interests and attachments in the community to

be avoided. . . . But, say gentlemen, the general militia are for the

most part employed at home in their private concerns, cannot well be

called out, or be depended upon; that we must have a select militia;

that is, as I understand it, particular corps or bodies of young men,

and of men who have but little to do at home, particularly armed and

disciplined in some measure, at the public expence, and always ready to

take the field. These corps, not much unlike regular troops, will ever

produce an inattention to the general militia; and the consequence has

ever been, and always must be, that the substantial men, having

families and property, will generally be without arms, without knowing

the use of them, and defenceless; whereas, to preserve liberty, it is

essential that the whole body of the people always possess arms, and be

taught alike, especially when young, how to use them; nor does it

follow from this, that all promiscuously must go into actual service on

every occasion. The mind that aims at a select militia, must be

influenced by a truly anti-republican principle . . . .").

59. Sent to the states at the same time were proposed amendments to

Art. 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.

60. While there is no historical evidence that the states' rights

view of the Second Amendment is correct, we are struck by the absence

of any indication that the result contemplated by the sophisticated

collective rights view was desired, or even conceived of, by anyone.

61. The district court's analysis of the constitutionality of section

922(g)(8), was essentially as follows:

"18 U.S.C. § 922(g)(8) is unconstitutional because it allows

a state court divorce proceeding, without particularized

findings of the threat of future violence, to automatically

deprive a citizen of his Second Amendment rights. . . . All that

is required for prosecution under the Act is a boilerplate order

with no particularized findings. Thus, the statute has no real

safeguards against an arbitrary abridgement of Second Amendment

rights. Therefore, by criminalizing protected Second Amendment

activity based upon a civil state court order with no

particularized findings, the statute is over-broad and in direct

violation of an individual's Second Amendment rights.

By contrast, § 922(g)(8) is different from the felon-in-possession statute, 18 U.S.C. § 922(g)(1), because once an

individual is convicted of a felony, he has by his criminal

conduct taken himself outside the class of law-abiding citizens

who enjoy full exercise of their civil rights. Furthermore,

the convicted felon is admonished in state and federal courts

that a felony conviction results in the loss of certain civil

rights, including the right to bear arms. This is not so with

§ 922(g)(8). . . . It is absurd that a boilerplate state

court divorce order can collaterally and automatically

extinguish a law-abiding citizen's Second Amendment rights,

particularly when neither the judge issuing the order, nor the

parties nor their attorneys are aware of the federal criminal

penalties arising from firearm possession after entry of the

restraining order."

United States v. Emerson, 46 F.Supp.2d 598, 610-11 (N.D.

Tex. 1999).

62. Likewise, the Supreme Court has remarked that the right to keep

and bear arms is, like other rights protected by the Bill of Rights,

"subject to certain well-recognized exceptions, arising from the

necessities of the case" and hence "is not infringed by laws

prohibiting the carrying of concealed weapons," Robertson v. Baldwin,

17 S.Ct. 326, 329 (1897), or by laws "which only forbid bodies of men

to associate together as military organizations . . . to drill or

parade in cities and towns unless authorized by law." Presser v.

Illinois, 6 S.Ct. 580, 584 (1886).

63. Emerson does not contest that the prohibitions of the order fall

within the literal terms of § 922(g)(8)(C)(ii), and the district court

did not determine otherwise.

64. See also, e.g., 42 Am Jur 2d, Injunctions, § 32 at 606-08 ("To

be entitled to an injunction, the plaintiff must establish that he . .

. is immediately in danger of sustaining, some direct injury as a

result of the challenged conduct. The injunction will not issue unless

there is an imminent threat of illegal action. In other words, the

injury or threat of injury must be real and immediate . . . The

apprehension of injury must be well grounded, which means there is a

reasonable probability that a real injury . . . will occur if the

injunction is not granted . . .") (footnotes omitted; emphasis added);

Id. § 8 at 566 ("The standard for granting a preliminary injunction is

essentially the same as for a permanent injunction, with the exception

that the plaintiff must show a likelihood of success on the merits

rather than actual success") (footnote omitted).

65. As previously observed, see note 6, supra, the present record

does not confront us with and we do not speak to, a situation in which

the defendant's firearm possession is merely incident to (and/or is

simply passive pending initiation and completion of) a good faith

effort to rid himself, as soon after issuance of the disqualifying

court order as reasonably practicable under the circumstances, of the

continued possession of a previously possessed firearm.

66. We reject the special concurrence's impassioned criticism

of our reaching the issue of whether the Second Amendment's

right to keep and bear arms is an individual right. That

precise issue was decided by the district court and was briefed

and argued by both parties in this court and in the district

court. Moreover, in reaching that issue we have only done what

the vast majority of other courts faced with similar contentions

have done (albeit our resolution of that question is different).

The vast majority have not, as the special concurrence would

have us do, simply said it makes no difference whether or not

the Second Amendment right to keep and bear arms is an

individual right because even if it were an individual right the

conviction (or the challenged statute) would be valid. In this

case, unless we were to determine the issue of the proper

construction of section 922(g)(8) in Emerson's favor (which the

special concurrence does not suggest), resolution of this appeal

requires us to determine the constitutionality of section

922(g)(8), facially and as applied, under the Second Amendment

(as well as under the due process clause and the commerce

clause). We have done so on a straightforward basis.

We likewise reject the implied criticism (in the special

concurrence's fourth paragraph) for not mentioning certain

"facts" not alleged in the indictment, not found to be true by

any trier of fact, and not relevant to the section 922(g)(8)

violation alleged. The district court dismissed the indictment

and Emerson has not yet been convicted of anything. In fact, we

have been informed that he has been acquitted of state charges

relating to the matter mentioned in the special concurrence.

67. All pending undisposed motions are denied.